Manningham CC v Treefern Nominees Pty Ltd (Beasleys) [2008] VCAT 1105

1. The use of the land at 195 Warrandyte Road, Doncaster East also known as Lot 2 on plan of subdivision No 521190M and being the land in Certificate of Title Volume 1089 Folio 207 for Boat and caravan storage and for the storage of caravans is in contravention of the Manningham planning scheme and the respondents are all to cease that use and to remove all caravans and boats that are not owned by the owner or occupiers of the land from the land within 90 days of the date of this document.
2. The question of the costs of the Responsible Authority in relation to these proceedings is reserved.

Mr Henry Jackson, solicitor of the firm of Deacons, solicitors, appeared for the Responsible Authority. He presented written and oral submissions and called five witnesses. They were Daniel Maltar, Planning Enforcement Officer of the Responsible Authority; Cheryl Elvin, previously Planning Enforcement Officer of the Responsible Authority who gave evidence by telephone link; Timothy Barrington Collins, Peter John Cahill and Andrew James Watts, aerial photogrammetry surveyor. These witnesses gave oral evidence in the course of which Messrs Maltar, Collins and Cahill adopted affidavits that had been filed and Mr Watts adopted a written report.

Mr P Connor, barrister, appeared on the instructions of the firm of Kearneys, solicitors, for the Respondents. He presented written and oral submissions and called thirteen witnesses. They are Lindsay Ernest Clay, Michael Roy Clarke, Maarten Knoster, William John Spicer Beasley (known as "Bill Beasley"), Donald Victor Scott Patterson, Jennifer Lillian Vanderzeil, David Cargill Caull, Marie Beasley, Neil Ronald Spicer Beasley, David James Wain, John Robert Heath, Pauline Anne Sanders and Robert Gibson Welch. They each gave oral evidence in the course of which (except for Mr Clarke) they adopted a statutory declaration or written statement that had been filed (in the case of Neil Beasley there were two statutory declarations and Pauline Sanders two statements).

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form has been retained on the file of the Tribunal save for some photographs marked as Exhibit C10 which were returned to Mr Jackson.

Application under s114 of the Planning and Environment Act 1987 for an enforcement order.

Use of land for caravan storage which use is prohibited under the Manningham planning scheme.

Treefern Nominees Pty Ltd, William John Spicer Beasley and Marie Beasley.

Low Density Residential Zone and subject to a Significant Landscape Overlay (Schedules 1 and 2) and a Wild Fire Management Overlay under the Manningham planning scheme.

1. This case concerns use of land for caravan storage where the Responsible Authority claims that the use is prohibited under the Manningham planning scheme. It has consequently applied for an enforcement order to restrain that use.
2. The Respondents admit use of the land for caravan storage and that such use is prohibited under the relevant table of uses in the planning scheme. However, they also claim to have acquired a right to continue their use pursuant to the existing use of right provisions in clause 63 of the Manningham planning scheme.

1. The caravan storage is located on part of a larger parcel of land that the Respondents have some interest in. The parcel is irregular in shape but is roughly quadrilateral. The total parcel is comprised of two lots being Lots 1 and 2 on Plan of Subdivision 521190M. The total area of the two lots is 3.58746 hectares. Of this 5946 square metres comprises Lot 1 whilst Lot 2 amounts to 3.528 hectares. The caravan storage activity is located on the northern part of Lot 2.
2. The two lots were created by subdivision in 2004.
3. Lot 2 in fact wraps around Lot 1.
4. Lot 1 has a frontage of 106.19 metres to the east side of Target Road. This is the north-south segment of Target Road. Lot 1 is irregular in shape but somewhat resembles a distorted 8. It is larger at its northern and southern ends of either sides of a narrower waist. There is a substantial two storey brick house on Lot 1.
5. The north-south segment of Target Road runs along the western boundary of the entire parcel including the western boundaries of both Lots 1 and 2. It also has an east-west segment running across the bottom of Lot 2 and forming its southern boundary. This southern boundary has a frontage of 80.06 metres to the north side of the east-west segment of Target Road. At the south eastern corner of Lot 2 Target Road intersects with Warrandyte Road. Warrandyte Road runs up the eastern boundary of Lot 2 in a direction that varies but varies between north east and north, north east.
6. The land is on a hillside. The contours vary and waiver, but the fall is generally from north to south.
7. The subdivision in 2004 excised Lot 1 as a site for the substantial house and a small paddock area behind the house which is fenced off from Lot 2 by chain wire mesh fence.
8. The parcel of land that was subdivided in 2004 had been acquired incrementally by the Beasley family or its company, piece by piece, over approximately three decades during which they have had an interest in portions of the land.
9. At the southern end of what is now Lot 2, and having frontages to both segments of Target Road, and also to Warrandyte Road, is the location of a substantial plant nursery being conducted on the land. Apart from outdoor facilities this nursery involves a number of ancillary buildings such as shop, shade house, store, fernery, office and glasshouse. There is also a car parking area. Within the nursery area there is also a substantial separate building containing a ninety seat restaurant. It is depicted in the 2004 subdivision as a "Restaurant". A planning permit was granted in or about December 2000 for an extension of this building. It is referred to in the endorsed plans for that permit as "EXISTING TEAHOUSE" and "PROPOSED EXTENSION".
10. I have mentioned that the parcel was acquired by increments. I do not have (or need) a detailed history but I do have evidence that the northern segment of the parcel, which is also the northern part of Lot 2, and amounting to perhaps forty percent in area of the whole, was acquired in or about 1987.
11. This northern part is affected by a number of power transmission line easements. They cover all or nearly all of the land at that end of the holding. They were originally in favour of the State Electricity Commission of Victoria. Several power transmission pylons are located on the northern part of the land, and several sets of electricity transmission lines span across that northern land. The easements prohibit buildings in that area.
12. This northern part of Lot 2 was referred to in the course of the hearing as the rhomboid[1]. There are extensive plantings of juvenile pine trees now established on the rhomboid area. These are intended for sale as Christmas trees. The caravan storage activity is concentrated on the southern portion of the rhomboid. Thirty to thirty-five caravans are regularly stored in that area. They are stored in the open, and not in a building.
13. To the south of the rhomboid, and between it and the house, there is an area that was referred to during the hearing as the triangle. Over many years a varying collection of rubbish and goods have been stored in and about the triangle area. Some of these goods have been related to and ancillary to the plant nursery activity and/or the dwelling. A greenhouse like structure, sometimes referred to as the "Igloo", has also existed in this area. It has not remained one size shape and position. Originally such structure appeared to have a roof in the shape of half a cylinder. In air photographs that appeared to grow into three roofs and three structures although the evidence indicates that it is really one expanded plant propagation structure for the roof like three elongated half cylinders.
14. Land to the east and north, like this parcel of land itself, is in the Low Density Residential Zone and has been developing for use in accordance with that zone over recent decades. Development is generally in the form of large houses on large allotments.
15. There are a number of such houses on such allotments immediately to the north of the rhomboid. Being on higher ground, they look down on Lot 2. Some of these properties have access to the north via Speers Court. Several complainants whose complaints drew this matter to the attention of the Responsible Authority reside there.
16. Parks and a power station are located to the west of Target Road. Subdivision to the east of Warrandyte Road in the locality is served by Bellbird Place and Roselillian Court. This is the locality of the so called Roselillian Estate Subdivision to which later reference will be made. It proceeded in or about 2000, but, as I understand it from the evidence, not before 1999.

1. It is apparent that the land as a whole is and has been used for more than one purpose, in terms of the use of land controlled by the planning scheme. Firstly there is the dwelling, recently subdivided out onto its own certificate of title. Next there is the plant nursery. It may well be that the ninety seat restaurant amounts to a separate use as restaurant. For present purposes I do not need to determine whether this facility is an ancillary part of the plant nursery. Insofar as other parts of Lot 2 are and have been used for storing goods and equipment associated with the plant nursery, such activities would not amount to a separate land use in terms of the planning scheme. Ancillary storage associated with the plant nursery should be characterised as part of the plant nursery use, rather than as a separate use in its own right. The same is true in relation to goods, materials and equipment associated with the dwelling and its use as a residence.
2. The evidence indicates a long list of various types of goods, materials, equipment, machines and parts that have been stored on what is now Lot 2, particularly in the triangle area. Some of these goods are clearly associated with the plant nursery use. Insofar as there may have been storage of such things that are not associated with the residential use or the plant nursery use of the land, it appears that the triangle may have been used for the storage of other chattels and hence as a "Store" in terms of the planning scheme.

1. The land is in a Low Density Residential Zone. The land is also subject to a Significant Landscape Overlay and a Wild Fire Management Overlay, but it is really only the zone controls I need consider for the purposes of this case. The Low Density Residential Zone control provisions are found in Clause 32.03 of the Planning scheme.
2. Clause 32.03-1 contains a Table of Uses which controls the use of land in the zone. Use for any of the purposes listed in Section 1 of the Table can be carried on "as of right", that is to say, without need to obtain a planning permit; provided that any relevant condition specified in the Table is met.
3. Section 3 of the table lists a number of land use purposes which are prohibited in this zone. That means that those uses cannot be carried on, or commence to be carried on, in the zone. However, that prohibition is subject to an exception. An otherwise prohibited use may be lawfully carried on if it has the benefit of so called existing use rights under Clause 63 of the planning scheme. "Warehouse", other than a Store, is a prohibited use specified in Section 3 of the Table.
4. The land use term "Warehouse" is defined in Section 74 of the planning scheme in the following terms:

Warehouse Land used to store or display goods. It may include the distribution and wholesale selling of the goods.

1. The concept of Warehouse in the planning scheme includes a number of sub-categories. They are Commercial display area, Fuel depot, Mail centre, Milk depot and Store. Each of these is a particular sort of Warehouse. It can be noted that Warehouse does not necessarily mean goods stored or displayed within a building.
2. The land use term "Store" is defined in Clause 74 in the following terms:

Store Land used to store goods, machinery, or vehicles.

1. The term "Store" includes two subcategories namely "Boat and caravan storage" and "Freezing and cool storage".
2. The land use term "Boat and caravan storage" is defined in Clause 74 as:

Boat and caravan storage Land used to store boats, caravans or vehicle-towed boat trailers.

1. Turning back to the land use table in Clause 32.03-1, the table also includes a Section 2. Land may be used for any of the purposes listed in Section 2, but only if and during the currency of a valid town planning permit allowing such use.
2. Some of the land uses listed in Section 2 have specified conditions in relation to them. A land use in Section 2 where there is a specified condition only remains a permissible use, subject to there being a planning permit, if any such condition is met. If the condition is not met, then that use is prohibited. This is provided for by Clause 32.02 of the planning scheme which reads:

A use in Section 2 requires a permit. Any condition opposite the use must be met. If the condition is not met, the use is prohibited.

1. The land use "Store" does appear in Section 2 of the Table, but it is accompanied by a fairly stringent condition. That condition reads:

Must be in a building, not a dwelling, and used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

1. The current storage of thirty to thirty-five caravans on the southern portion of the rhomboid is prohibited in accordance with these provisions. Although Boat and caravan storage is a subcategory of Store, and although Store is a Section 2 use, the condition is not met. In the first place, the caravans are not stored in a building as required by the condition. Secondly, they are not used in conjunction with the occupation of a resident of a dwelling on the lot. In any event, Mr P Connor, the barrister who appeared on behalf of the Respondents, admits that this current caravan storage use is prohibited. He is quite correct in conceding this.
2. Not only is there no building on the rhomboid, but buildings are not allowed there because of the power transmission easements that affect it. Though buildings can be erected on the non-easement areas, the easements cover all of the rhomboid and the triangle areas and indeed nearly all of both Lots 1 and 2 except for the house, its driveway and a small area associated with it, the plant nursery and restaurant buildings and the immediate area about them at the southern end of Lot 2.

1. The idea of imposing zoning in planning is one of the fundamental ideas upon which planning is founded. It is an idea that can become over familiar to those involved in planning, and perhaps taken for granted, neglected and even abused. It is as well that its theory and importance should be kept in mind. In the simplest terms it is the notion of keeping like and compatible land uses together, and separated from other incompatible and conflicting land uses. A good example is having industry located separately in an industrial zone, and away from residential uses in a residential zone. This avoids conflict and inconvenience, and promotes amenity and efficiency for both. An offensive or dangerous industry might be located further away from residential or business zones where people live or congregate. Offensive or dangerous activities might be separated from such sensitive areas as residential zones by intervening buffers of other zones and other activities more amenable to both. Not only might a light industrial zone be separated from a residential zone by some intermediate activity, but the light industrial zone might itself form part of a separating buffer between the residential zone and heavy industry, or beyond that offensive or dangerous industry. Large complex modern cities are likely to become chaotic, inefficient and perhaps ultimately unworkable in the absence of fairly sophisticated planning of this sort. The foregoing discussion in this paragraph is meant to be no more than simple examples of the sort of thinking involved.
2. This sort of thinking is so sensible that it is not surprising to find it in various devices and laws running back into history. In the first half of the 20th Century there were planning bylaws made under the Victorian Local Government Act before the enactment of the first Town and Country Planning Act in 1947. Before those examples of public law planning legislation, private contract law was called in aid by the use of restrictive covenants on land titles. Hundreds of years before that, in the cities of the mediaeval Hanseatic League in northern Germany and the Baltic area the system of land titles incorporated the notion of zoning. Industrial activities involving fire like bakeries, potteries, forges and the like were an obvious threat to wooden housing and residential areas. The system of titles prevented their establishment in residential areas and compelled them to be in separate and separated areas, preferably where plentiful water was available for fire fighting. I have heard that the implementation of such ideas can be found in urban laws and practices during the Roman Empire. I have little doubt that other historical examples could be found.
3. Of course many settlements have been established in Australia, and many villages grown into towns and cities without such orderly planning was instituted. This often gave rise to future difficulties and conflicts.
4. Nevertheless, the notion of planned zoning is a sound one. Fundamental to it is the principle that incompatible uses should not be allowed to encroach inappropriately into areas from which they are meant to be excluded. Bakeries, foundries and slaughter houses should not be allowed to establish in a residential area. Conversely, ordinary residential usage should not be allowed to establish in the areas set aside for heavy, offensive or dangerous industry.
5. Of course houses need stoves and ovens for domestic cooking, but domestic cookery should not be allowed to grow, perhaps by small increments and perhaps over a considerable period of time, into a bakery or a bread factory. Domestic or hobby wood working or car repairing should not be allowed to grow into a joinery works, a panel beating works or motor repair shop or engineering factory.
6. To be effective zoning, once established, has to be maintained and protected from such encroachments. Such white anting, over time, can incrementally undermine and destroy the effectiveness of the very principle of zoning. Ultimately this is just as true of incompatible incursions that have infiltrated and then grown and evolved over many years as it would be by allowing the sudden introduction of a new, large, offensive and dangerous industrial activity. It would destroy the safety, efficiency and amenity of an established residential area.

1. To have land use complying with the zoning is more easily achieved where planning and zoning is put in place prior to development. It is more difficult where land has been developed and used for years or decades before such planning is imposed. Unfortunately that has happened in many places in Melbourne and in Victoria. It becomes difficult where uses that good planning would separate are mixed up together. Just continuing with the residential versus industrial example that I have been using; there are many places where development and use, dating back over decades, has been used for residential purposes but where there are pockets or individual sites that over similar periods have been developed and used for industrial purposes. The converse can also be found. Zonings have been applied notwithstanding that exceptions and anomalies have existed with such zones from their inception.
2. In such situations strict enforcement of land use control in relation to zoning might give rise to significant hardship and injustice, or significant public expense to compensate for what might otherwise be harsh and unjust.
3. This sort of possibility has given rise to the creation of an important exception within planning laws in favour of established uses of land which were established lawfully when they commenced, and has continued thereafter in spite of contrary zoning. Such uses are protected, even if a subsequent imposition of planning controls and zoning have caused use of land for the purpose to become prohibited. (Other provisions have traditionally offered protection for uses commenced lawfully which have not become prohibited, but have become subject to controls requiring planning permission. However, I am here discussing the situation in relation to uses that have become prohibited.) Thus planning schemes commonly provide for such exceptions, subject to certain limitations and provisos. I need not go into all the details here. I discussed some of them, and the principles involved, in my decision in Alexopoulos v Moonee Valley CC[2]. The decision in that case was given after the conclusion of the hearing in this one. In mentioning it here I do not suggest that it carries any more authority than such logic and exposition as its reasons might justify. Nevertheless it is important to remember the purpose behind existing use rights as they apply to the uses that have become prohibited. In the interests of justice they are intended to be effective and able to continue effectively if that is desired by the owners or users of the land from time to time. In this connection various authorities indicate that provisions creating and protecting existing use rights should be interpreted and applied as liberally as the language in its context allows see for example the decision of the Full Court of the Supreme Court of Victoria, in City of Nunawading v Harrington[3]. Mr Connor, also referred to Dorrestijn & Anor v South Australian Planning Commission[4] and Henshall v Shire of Flinders[5]. There are other cases such as Parramatta CC v Brickworks Ltd[6]. The High Court of Australia decision in Woollahra MC v Banool Developments Pty Ltd[7] is also a relevant authority. It contains an important reminder in the following terms:

...this injunction is no warrant for failing to give due wait to the natural and ordinary meaning of the words used as influenced by the context in which they are found.

1. I refer to these matters and cases in paragraph [50] of Alexopoulos where I observed that these authorities related to the protection and preservation of existing use rights lawfully commenced, and not the creation of new existing use rights commenced illegally.
2. Such provisions should not be interpreted or applied so as to make nonsense of the restrictions and provisos written into the statutory provisions or so as to undermine the principles of planning in relation to the imposition of zonings or the limited purposes for which existing use exceptions are created.
3. It is not only the original imposition of planning controls that can cause a previously lawfully existing use system to become prohibited. For various reasons existing planning controls, including zone control provisions, may be amended from time to time. Such amendments can thus give rise to existing use rights applicable to a previously lawful use that has become prohibited.
4. At the time the abovementioned authorities were decided it was clear that existing use rights could only attach to land uses lawfully commenced prior to the operation of the control making them currently prohibited, and then provided that the various conditions, restrictions and provisos were observed. That was the position in relation to Victorian legislation, and as far as I am aware, to equivalent legislation in other jurisdictions beyond Victoria. This was the clear position in Victoria up until the introduction of the Victoria Planning Provisions into Victorian planning schemes. The Victoria Planning Provisions are standard provisions that now appear in all Victorian planning schemes.

1. The existing use provisions are found in Clause 63 of the planning scheme. Clause 63.01 refers to the circumstances in which existing use rights can arise. The first is the traditional one, namely that the use was lawfully carried out immediately before the approval date. The approval date here refers to the approval date of the planning scheme or the approval date of the amendment to the planning scheme when the prohibiting provision came into operation.
2. The next two are variants that deal with circumstances where a permit for the use was granted before the approval date. There is a fifth circumstance that I need not deal with here. The fourth refers to the fifteen year rule. It provides that an existing use right is established upon proof of continuous use for fifteen years being established under Clause 63.11.
3. Clause 63.11 provides, so far as relevant for present purposes:

If...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 fifteen 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:

• Any time before or after the 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.

1. These provisions came in with the introduction of the Victoria Planning Provisions to Victorian planning schemes. They are a radical departure from previous Victorian planning law in relation to existing use rights. Previously such rights could only exist in relation to a use of land lawfully carried out immediately before the approval date. They were for the purpose of protecting existing lawful uses. In contrast the fifteen year rule abandons that principle and opens the way for the legalisation of illegal uses that contravene the planning scheme provisions in relation to land use including the regulation and prohibition of some uses in various zones. To this extent it undermines the principles and purpose of the existing use exception and of planning scheme zone controls in relation to land use. It says, in effect, if you can get away with illegal use for fifteen years, it will become legalised.
2. The existing planning law countenances intensification or reduction of intensity of use, provided it is the same essential use, without regarding such changes as creating the different use. That is quite logical. Mr Connor, at paragraphs [15] and [16] of his written submissions mentioned a number of authorities, including High Court of Australia authorities, in relation to this including a quotation from Mason J (as he then was) from page 86 of his judgment in Norman v Gosford Shire Council[8]. He also referred to the judgment of the Full Court of the Supreme Court of Victoria in City of Nunawading v Harrington saying:

The use to which the land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served.

He also referred to Rockdale Municipal Council v Clark[9] and some other cases including, by reference, those referred to in "Planning and Environment Victoria" at [431,580.10] to which he might have added [431,580.20].

1. All this means that a prohibited use might now be commenced unlawfully in circumstances where, for one reason or another, it is not detected for fifteen years after which, whether as a result of increased intensity of the use, or for some other reason, it may become so serious detriment to others or the amenity or in some other way that it becomes noticed and complained of. In any event, the effect is to legalise an illegal use of land that the planning scheme, including the use controls and the zone provisions, seeks to prevent and which the traditional existing use rights would never countenance.
2. It might be said that if an illegal use has gone on for fifteen years without detection or action being taken in relation to it, it cannot be doing much harm and should be tolerated. That is not an approach taken by the law to other offences. It takes little account of the limited resources of responsible authorities who have the public duty to enforce planning schemes or the fact that many contraventions come to their attention through complaints. It makes light of the right of those who may be affected who may not have been aware of the contravention through lack of knowledge of planning laws, absence, the initial low level of the activity, concealment or for other reasons; although they may ultimately be affected and have just cause to complain.
3. The carrying on a prohibited use at a low level might well not be detected or complained of. This would be so whether the low level was a deliberate ploy to establish a prohibited use or fortuitous in the sense that the persons responsible may have been initially unaware that they were contravening planning laws. It might only become apparent after some time. An intensification of the use might cause it to become apparent. If that should happen to occur after fifteen years from the initial commencement, it seems that legal remedies to correct the situation, to require compliance with the law and to abate ill effects, will not be available. It is not generally thought appropriate that the law should sanction its own contravention, far less reward it.
4. I have referred to my previous decision in Alexopoulos. In that case there was an illegal commencement of a use and its continuation over fifteen years in circumstances where the true nature of the use was not really apparent, where that true nature was in fact deliberately concealed and where, by reason of such deception, the responsible authority was misled. Then, after fifteen years, application was made for a declaration that the fifteen year rule had legalised the activity. As it happened, in that case, the use had in fact ceased for a number of months so that it was not "continuous" for fifteen years, as required by the fifteen year rule provisions. However, had it not been for the circumstance that there was that interruption, it appears the fifteen year rule would have been satisfied.
5. I have already mentioned that the intention of use constraints in relation to various zones, and the original existing use right provisions themselves, can be circumvented by a low level and inconspicuous use over a number of years which can then intensify so as to generate justified complaints and create genuine problems at a stage when it is found that the illegal has been legalised under the fifteen year rule. Over the years repeated examples of this sort of thing can have the effect of undermining the use control provisions in relation to various zones by white-anting the zones with multiple prohibited uses in relation to which there was no legal remedy.
6. There are existing use right provisions in the planning scheme which enable a permit for the substitution of one prohibited use for another[10]. Such a permit can be given where the responsible authority is satisfied that the new prohibited use is less detrimental to the amenity than the prohibited use being replaced. Other provisions require compliance with the planning scheme if 50% of the floor area of buildings or works are destroyed[11]. Both these sets of provisions enable a consideration as to whether a lawful existing use right has reached a stage where it should cease or be relocated. The fifteen year rule rather subverts that purpose. In the whole context of existing use rights the fifteen year rule, enabling and legalising prohibited uses, is an innovation indeed.
7. It is not readily apparent from the new planning scheme provisions why the innovation has been made. In the case of Kraan v Cardinia CC[12] the Tribunal said that the change had been made because of evidentiary difficulties that might arise in relation to establishing lawful commencement of a use prior to the relevant commencement date. Sometimes it was necessary to trace the commencement of a use back over many years or several decades. I discussed these matters in Alexopoulos' Case. I do not know how it is known that the alleged evidentiary problems are the reason for the change, but that seems to be a surprising reason to change the substantive law. The onus of establishing existing user rights is on the party asserting them. The worst that can happen if that onus is not discharged is that the planning laws, including zoning restrictions on land use, will be complied with in accordance with the intention of the zoning. In attempting to relieve evidentiary burdens on proving an existing use right that may have been lawfully established, the fifteen year rule has the effect of letting through uses that are plainly and admittedly established unlawfully. In Alexopoulos' Case it was plain that the office use of the land was and always had been prohibited. The applicant in that case asserted as much in attempting to take benefit of the fifteen year rule, in spite of the fact that doing so involved admitting the falseness of a series of representations to the contrary made to the responsible authority over a number of years.
8. In this present case it is not denied, indeed it is tacitly admitted, that the relevant use is prohibited and always has been. There was an assertion to the contrary in a letter of the Respondent's solicitors asserting lawful commencement, but Mr Connor, on behalf of the respondents, did not seek to support that proposition at the hearing before me.
9. Another feature of the present case is the number of witnesses called attempting to prove or disprove fifteen years' use in relation to what is clearly a prohibited use. I found a good deal of inconsistency and varying reliability in relation to this evidence, including the evidence of some witnesses who I considered were honestly attempting to assist the Tribunal in relation to things they had no particular occasion to take notice of and which related to years in the past. In fact this is a case where the fifteen year rule has created the occasion for considerable evidentiary difficulties that would never have arisen in their absence.
10. In saying all this I am nevertheless conscious, as I observed in paragraph [41] of Alexopoulos, that the fifteen year rule is part of the current law and as such the Tribunal has a duty to interpret and apply it correctly and fairly. I there referred to the case of Mornington SC v Fox[13] as an example of a decision of mine (and another member) applying the fifteen year rule where it provided an effective defence for a respondent in relation to enforcement proceedings.
11. I have already referred to Mr Connor's submissions, and to authorities, in relation to the proposition that existing use rights should be liberally interpreted and applied, including the warning of the High Court of Australia in Woollahra MC v Banool Developments Pty Ltd. It is the basis of existing use provisions that such uses, lawfully commenced, should be able to be continued. Those authorities were all decided in relation to existing use provisions that predate or did not include the fifteen year rule provisions that now appear in Victorian planning schemes. It therefore does not necessarily follow that the liberal approach should apply in the same way to fifteen year rule cases where it is plain that the prohibited use was commenced and has continued illegally. The provisions must be interpreted and applied fairly, and in accordance with their terms, but the onus of establishing the fifteen year rule exception lies on the party asserting it and I do not think that there should be concessions in favour of a party seeking to discharge that onus.

1. The parts of land constituted by Lots 1 and 2 have been used for more than one purpose since before the subdivision that excised Lot 1 as a separate title for the dwelling. Obviously one use was and is dwelling whilst another was and is plant nursery. Depending on whether it is to be properly categorised as a separate use in its own right, or as to whether it is ancillary to the nursery, the ninety seat restaurant/tea house may well be a third use.
2. The triangle area, to the north of the dwelling and south of the rhomboid has been utilised over many years, dating back over all relevant times, for the storage of a wide variety of materials. It is apparent that at least a significant part of this activity was ancillary to the plant nursery. It is possible that some usage and storage on and about this area might also be related to the dwelling. This leaves the possibility that yet more storage in this area was unrelated to either of those uses, and amounted to a separate use of the land as a "store".
3. To be used as a Store there would need to be something of some significance, apart from storage or other activities connected with the nursery or the dwelling. In Pacific Seven Pty Ltd v City of Sandringham & Ors[14] the Supreme Court of Victoria considered a situation in relation to a convenience shop. The Planning Appeals Board, which was then the planning tribunal in Victoria, had determined that the proposed use of the land should be categorised as take away food premises. This was on the basis that it was proposed that the service premises would, as a very small aspect of its total offerings to the public, include a very limited range of hot food intended for consumption off the premises (I assume hotdogs or something of that sort). That description, in relation to that small aspect, fitted with the then relevant planning scheme definition of take away food premises. The Tribunal had decided that, on account of these circumstances, the proposed premises would be take away food premises. The Court disapproved of this approach indicating that the use was**,** nevertheless, service premises. That characterisation was not defeated by this minor aspect of take away. I take it that this meant that the take away aspect was either a very small second use of the premises, or was so trifling that it should be disregarded as being the sort of thing courts might dispose of applying the Latin maxim de minimis non curat lex meaning the law does not concern itself with trifles. If the take away was de minimis, it would be disregarded. If it amounted to a separate use, although a very tiny one, then it would be considered separately. If prohibited that aspect might be eliminated from the plans so that the proposal could go ahead as a proposal for service premises.
4. Applying all this to the present case, I doubt that I have sufficient evidence to determine whether there has been a separate use as a Store, as distinct from storage and other activities ancillary to the nursery or dwelling. The glasshouse like propagation "Igloo" would certainly appear to be associated with the nursery. The same can be said for quite a number of the other items of machinery, equipment, parts and goods of various sorts. The list provided to me by the evidence of various witnesses is extensive, and even then not necessarily exhaustive. The list of goods and materials referred to by witnesses as having been stored on the triangle include timber, bricks, pipes, firewood, plastic plant pots, nursery trolleys, nursery benches, composting materials, a front end loader, a small truck, trailers, boat(s), nursery materials, building materials, an old tractor, tractor attachments, a slasher, wooden crates, nursery stock, storage benches, empty pots, wooden crates, roofing iron, waste soil, soil from the nursery, poles, wire, fencing equipment, sleepers, a motorbike trailer, a horse float, signage from the nursery and machinery parts. I will discuss the evidence in relation to caravans more fully.
5. In or about 2001, but not earlier than 1999, a significant change took place in relation to caravans. From that time multiple numbers of caravans began to be stored in the open on the south part of the rhomboid area north of the triangle. The number of caravans being stored there built up to current numbers which are in the order of thirty to thirty five caravans. No caravans had previously been stored in this area. As I have said, it is common ground that this storage of that number of caravans in that locality amounts to the use of the land for the storage of caravans. It comes within the land definition of "Boat and caravan storage" in Clause 74 of the planning scheme that I have already referred to.
6. The storage of this considerable number of caravans in that position is visible to the occupiers of the low density residential allotments located to the north of the rhomboid, and situated on higher ground so as to look down on the caravan storage area. So far as the residential witnesses from those higher blocks were concerned, this was a first intrusion of what appeared to be a commercial activity of caravan storage in their low density residential zone, visible from their homes and grounds and other vantage points nearby including roads. They resented the intrusion and complained to the council as responsible authority. It was these complaints that drew the attention of the responsible authority and its officers to the situation, caused investigations to be carried out and ultimately to action being taken (culminating in this enforcement application) with a view to the cessation of what the responsible authority considers to be the prohibited land use of Boat and caravan storage.
7. These investigations included inspections, the taking of photographs and enquiries of people responsible for the land, particularly Mr William John Spicer Beasley, known as Bill Beasley.
8. Evidence was given by Mr Daniel Maltar, Planning Enforcement Officer of the Responsible Authority, in relation to his conversations with Mr Bill Beasley. He says that Mr Beasley informed him that he charged a fee to approximately half of the caravan owners for storage of the caravans on his land and that he had conducted this use for nearly ten years. Mr Beasley has since claimed that he did not say "nearly ten years", but rather "about ten years". A good deal of emphasis was placed on this discrepancy when these gentlemen gave oral evidence at the hearing. Mr Maltar maintained and insisted that the expression was "nearly ten years", and not "about ten years". Mr Beasley was pressed in relation to this question. In his oral evidence he referred to having kept caravans for twenty one years where his affidavit referred to sixteen years. When pressed his answers became inconsistent, hesitant and sometimes evasive. On the particular point of what he had said to Mr Maltar, he insisted on having said "about ten years".
9. I prefer the evidence of Mr Maltar, but I do not think that the discrepancy, in relation to what was said between them at investigation stage, is significant. In the context of that conversation I do not think that the uncertainty that would be introduced by the use of the word "about" was sufficient to mean that the approximation could include fifteen years. References to fifteen or sixteen or twenty one years only arose later after Mr Beasley had obtained legal advice and came to realise that fifteen years could be significant in relation to a possible existing use defence.
10. I find that, when questioned by Mr Maltar at the initial stage, he said "nearly fifteen years" and that he did not say or convey or intend to convey fifteen years or a time in the order of fifteen years. However, I also find, on the balance of probabilities, that when he made that answer he was referring to the commencement of the storage of caravans in the open on the rhomboid site from about 2001 and no earlier than 1999 and not to any earlier presence of any caravans on the land prior to that new development.
11. The evidence, including the evidence of Mr Bill Beasley, satisfies me that there was a reason for what I regard as the commencement of caravan storage on the land at that time. In 1999 or 2000 there was a residential subdivision of the land on the other side of Warrandyte Road. This development was referred to as the Roselillian Estate. That name as been adopted for one of its access roads.
12. Prior to the subdivision that land was used for the storage of a substantial number of caravans. After the subdivision went through, and as the new lots were sold off and developed for residential purposes, that site ceased to be available to the caravan owners for the storage of caravans. It is after that subdivision, that a substantial number of caravans came to be moved on to the rhomboid part of the Beasley land. Both parties agree that with this build up of caravans on the land, many for a fee, the use of the land for Boat and caravan sales commenced, (or in the view of the respondents, continued). Everyone agreed that the use has been carried on since about 2001. There is a dispute as to whether it commenced at that time, or prior to that time, and sufficiently before it to satisfy the fifteen year rule.
13. After Mr Bill Beasley was made aware of the boat and caravan storage activity being prohibited, consideration was given to regularising and legalising the situation by obtaining a planning permit to authorise that use.
14. When Mr Malter interviewed Mr Beasley on 26 April 2006 the latter was in company with his wife, Marie Beasley. She first suggested approaching surrounding neighbours with the idea of erecting shade cloth to screen views of the caravans. Mr Beasley then suggested that other properties have a caravan on them and why had the council not requested their removal. It was explained that the keeping of one caravan owned by an individual on his or her own property was clearly different to storing 30 caravans owned by others and for a fee.
15. Mr Beasley said that, at that time, 5 or 6 caravans had already been removed and that the others would be removed in the winter and that he would advise owners that they could no longer leave caravans on the land. He also said that he would do anything required to continue storage of caravans, including rezoning. Mr Malter said that rezoning was a lengthy process and suggested that Mr Beasley seek professional advise. Mr Malter also confirmed that the caravans had to be removed in the mean time.
16. On 29 May 2006 Mr Beasley sought an extension of time for the removal of vans.
17. Ultimately, when the question was investigated, it was found that continued storage of vans was untenable, at any rate in the absence of a planning scheme amendment or establishment of existing use rights. The land use "Store" is a section 2 use in the relevant table of uses for the Low Density Residential Zone. On the face of it a permit might be obtained pursuant to which the land use would become lawful. A further examination, however, discovers that this is not possible.
18. The land use Store in the table in clause 32.03 of the planning scheme is subject to the condition mentioned in paragraph 31 of these reasons. The condition must be satisfied failing which the land use becomes prohibited. The condition cannot be satisfied in this case. The first problem, and it is a sufficient problem in itself, is that the condition requires that the goods being stored must be stored in a building that is not a dwelling. The power transmission line easements over the rhomboid land prevent the construction of buildings there. In fact, the areas covered by such easements are so extensive that there is little, if any, space left on the parcel that is available for the construction of buildings and which is not already occupied by buildings in connection with the dwelling, the nursery and the restaurant. On realising this, after having raised the matter with the electricity authorities having the benefit of the easements, Mr Beasley lost interest in trying to solve the problem by obtaining a permit. He cannot accommodate the building that would be required to satisfy the condition. In any event, it would need to be a pretty big building to accommodate the 30 or 35 caravans. It might have been prohibitively expensive to build. That hardly matters where the easements prevent construction, whatever the cost.
19. Furthermore, the second part of the condition requires the goods being stored to be used in conjunction with the occupation of a resident of a dwelling on the lot. Thirty to thirty-five caravans owned by other people and accommodated on the land, whether gratis or for payment, hardly meet that requirement. Furthermore, now that the subdivision has gone through, the rhomboid land, together with the majority of the whole parcel, is in lot 2. There is no dwelling on lot 2. The only dwelling is on lot 1. Even then, these easements cover almost all of lot 1, apart from the actual site of the dwelling, its driveway and a small curtilage. Plainly neither aspect of the condition can be met.
20. Shade cloth screens would fail to meet both aspects of the condition.
21. There can be little doubt that realisation of these problems represented a disappointment to Mr Bill Beasley and the other respondents. Although they own a considerable area of land in this parcel, its use is severely restricted by the easements and the limitation of placing buildings on most of it. This restricts the use that can be made of the land which, in any event, has to conform with the requirements of the planning scheme. From a practical point of view, the storage of caravans, along with growing Christmas trees, grazing a horse and storing other goods, represent activities that would at least comply with the easements and would be beneficial to the respondents and the owners of caravans seeking somewhere to store them.
22. The possibilities of defending the current enforcement application by means of an existing use right have been explored. The case has now been heard where the respondents have sought to establish the defence on that basis.
23. A considerable number of witnesses have given evidence. Those called for the responsible authority have been witnesses associated with the neighbouring properties to the north who had not seen caravans on the land until the early part of the current decade and who have made complaints about it, Mr Andrew Watts an expert witness in the field of aerial photogrammetry and council planning or planning enforcement officers who investigated the case and/or handled its administration on behalf of the responsible authority.
24. A large number of witnesses were called for the respondents, they included some respondents and people associated with the Beasley family or the conduct of its business on the land. Others are neighbours or persons claiming familiarity with the area, some of whom have been owners of caravans kept on the land.
25. The case that the respondents have attempted to make out is to say that the use of the land for caravan storage commenced long before the influx of caravans onto the land following the Roselillian subdivision and that the use dates back over 15 years so that the 15 year rule establishes existing use rights. They have sought to do this by seeking to establish that a caravan or some caravans have been on the land during the 1990s, and dating back to the 1980s. However, proving the occasional or regular presence of one or two caravans on the land is not the same thing as proving the use of the land for the purpose of caravan storage. According to the evidence, a host of things have been stored on the triangle over the years. Each of them is clearly not a separate land use for truck storage, front-end loader storage, trailer storage, sleeper storage and so on. Just as one swallow (or two) does not make a summer, so one caravan (or two) does not make the land use a caravan storage.
26. The evidence of the neighbours called on behalf of the responsible authority positively excludes caravans from the present rhomboid location prior to the post Roselillian accumulation. However, there are parts of lot 2 where one or two caravans might have been stood on the land where they would not be visible from these neighbouring properties to the north. Those neighbours had no particular occasion to look out for such caravans. They were not concerned about caravans until the large group of them began to accumulate on the rhomboid. As one of these witnesses said he would not have been concerned about one or two vans if he had noticed them. These witnesses could not deny the possibility of the odd van from time to time, or even continuously, on the land.
27. The evidence of Mr Andrew Watts is another matter. His expertise and experience is in the field of aerial photography and photogrammetry which means the interpretation and measurement of aerial photographs. He gave evidence of having examined aerial photographs and enlargements of them with and without the use of a magnified stereoscope which he brought to the hearing and which enabled those present to have enhanced three dimensional views of features depicted in the photographs. He gave evidence in relation to aerial photographs taken on 11 December 1992, 11 January 1993, 3 May 1994 and 3 March 1996. These photographs depict certain changes and developments on the land and surrounding land over that period. Mr Watts' expert evidence, which is consistent with what could be observed by looking at the photographs with and without magnifying and stereoscopic equipment, was that there were no caravans on any of the land on any of those dates subject to the minor qualification that it is just possible that one or two caravans could be on the land hidden under the foliage, indeed completely hidden under the foliage, of several trees on the land. The number of trees on the triangle diminished over the period. He described this possibility as being highly improbable and as an "outside possibility". However, he could not absolutely exclude the possibility. He could, to the extent of 100%, exclude it so far as the rhomboid was concerned. As to the triangle, he said that the bare possibility existed to the extent that two or possible three caravans on the first three dates and not more than one, possibly two, on the last date.
28. I am impressed with the evidence of Mr Watts and accept it. I find, on the balance of probabilities, that there were no caravans on the land on any of those dates. I am satisfied beyond reasonable doubt, there were no caravans on or near the rhomboid on any of those dates and I am satisfied beyond any reasonable doubt that there were not more than two or three caravans at the utmost on the land on any of those dates, although I find even this to be highly improbable.
29. The current storage of caravans is in the open. No reason for them to be under trees was given. No reason for storage in such a place was suggested although they would be there subject to the fall of branches, pine needles and bird droppings which might cause damage, or fouling or corrosion or staining by damp pine needles or bird droppings.
30. Subsequent aerial photos in Exhibit J14 showed the situation on what must be particular days in the years 1998, 2000, 2002, 2004 and 2005. These photographs show the situation in relation to the rhomboid and the interface between the rhomboid and the triangle. There are no caravans in those positions in the 1998 photograph. The 2000 photograph shows half a dozen vans at the interface and the beginnings of the pine trees on the rhomboid. The 2002 photographs shows approximately twenty-five caravans on the rhomboid and at the interface with similar numbers in 2004 and 2005 by which stage some of the Christmas trees appear to have been harvested.
31. On the evidence I find that no caravans were stored on or near the current storage location prior to 1999 and that prior to that year not more than one or two, or perhaps three caravans were on the land from time to time. I note that the respondents' witnesses, other than those connected with the family and the business generally, had little occasion to be observing or counting caravans on the land. Nevertheless, the evidence of these witnesses is that one or two and perhaps three vans were on the land from time to time. I do not find, on all of the evidence and on the balance of probabilities, that more than one, two or three caravans were on the land, prior to 1999. Most of the evidence, including that of the witnesses for the respondents, nominate those figures or up to those figures.
32. Some few claims were made by others of the respondents' witnesses asserting greater numbers prior to 1999, but I do not accept that evidence. I find it to be outweighed by more credible evidence of more credible witnesses. Apart from contradictions and the manner in which evidence of greater numbers was given, I noticed that witnesses were obliged to back away from some assertions in this connection when cross-examined, particularly in relation to the evidence of Mr Watts.
33. I note that the presence of one or two, or possibly three caravans on the land, is consistent with being ancillary to the use of the residents as a dwelling; or for domestic purposes, not amounting to a separate land use, in relation to persons associated with the nursery. This does not necessarily mean that they owned and kept a van there themselves, although the appearance of one or two vans on the land is entirely consistent with that. It is also quite possible to allow a friend to keep a van there, and I do not think it makes any difference, from a land use point of view, whether one or two friends or acquaintances are permitted to keep a van on the land, whether gratis as a favour, or for some payment. I do not think the evidence is sufficient to establish, on the balance of probabilities, that there were always even one or two caravans on the land prior to 1999. I note that the 15 year rule requires continuous use for the alleged purpose, but I doubt that this is a decisive point. Land might be used to store something, even if the storage space is sometimes empty.
34. If the occasional or regular presence of one or two, or perhaps three vans on the land, prior to 1999 was not personal and domestic, then it would be part of the more general use of the land as a Store, and not for the particular use of the land for the storage of caravans or, in terms of the current land use definitions, Boat and caravan storage. I note that Mr Connor correctly conceded at paragraph 7 of his written submissions, that "Store" is too wide a concept for the present use complained of. Its correct characterisation is "Boat and caravan storage". He appropriately referred to the High Court decision of Shire of Perth v O'Keefe[15] in this context. I find that such use did not start until 2000 or at any rate clearly not before 1999.
35. At paragraph 12 of his written submissions Mr O'Connor said "the use must have started at some stage, with the storage of a single caravan". It is a mistake to equate the keeping of a van with the commencement of the use of land for the purpose of caravan storage.
36. In understanding this case and arriving at my findings in relation to it, I have distinguished between various land uses and in particular between the specific land use of caravan storage on the one hand and the broader concept of store on the other. In doing so, I have used the familiar approach to such characterisation tasks quoted frequently from the High Court authority of Shire of Perth v O'Keefe. Mr Connor said correctly that there was no dispute between the parties in this present case as to the applicable law. As to this aspect, both sides cited the O'Keefe case. In Pacific Seven v City of Nunawading the Supreme Court adopted the approach setting out a pertinent quotation from the High Court reasons. The following is a quotation from page 160 line 20 of the Supreme Court judgment in Pacific Seven v City of Sandringham containing come comments and the quotation from the High Court :

Both he [Mr Buckner] and Mr Wright, for the respondents, relied on what Kitto, J. said in Shire of Perth v O'Keefe & Anor [1964] HCA 37; (1964), 110 C.L.R. 529, at pp. 534-5. In that case the High Court was concerned with the meaning of "purpose" in a by-law made by a Town Planning Authority in Western Australia. At (110 CLR) pp. 534-5 Kitto, J. said:

But at the outset it is necessary to observe that the 'existing use' by-laws take two steps which should be kept distinct from one another. First, it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose : not that the precise manner of use for that purpose may alone continue, but that use generally for that purpose may continue. The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of the processes or activities or through a precise cataloguing of the individual items of goods dealt with, but by asking what according to ordinary terminology is 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 inquire when a use that is being made of the premises at a later date is challenged as not being authorised by by-law 372 whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree. Compare Marshall v Nottingham Corporation, [1960] 1 W.L.R. 707, p. 717, and for that reason borderline cases will inevitably arise in which opinions will differ.

It is true that the High Court there considered a by-law and a problem which was different from those here. But in my view the law sets its face against a tightly rigid interpretation of words which do not themselves or their context require. The approach of the High Court which endorsed the above observations of Kitto, J. seems to me entirely appropriate to a determination of such questions as what is a shop 'for the sale of food for human consumption'; what are a 'premises for the purposes of a library, newsagency, pharmacy' and the like. It ought not to be answered, particularly in the town-planning context, by reference to something proposed to be sold which is not within the designated purpose, but by reference to the 'real and substantial' purpose of the use of the land in question.

1. In applying this approach to the present case, I have found that a real and substantial purpose of the use of the land at present, and indeed the real and substantial use so far as the southern part of the rhomboid and its interface with the triangle is concerned, is storage of caravans or, in terms of the planning scheme definition, Boat and caravan storage. I also find that this is a different use in town planning terms, and in terms of existing use rights from, any other use of the land before or after the commencement of this use in or about 2000 but not earlier than 1999.
2. Having not started before 1999 at the earliest, the 15 year rule is not satisfied in relation to caravan storage or Boat and caravan storage. It follows that no existing use right in relation to such use exists by virtue of the 15 year rule.

Unambiguous written direction to cease use by reason of non-compliance with the scheme

1. Clause 63.11 provides that an existing use right can be established by 15 years of usage even if the use did not comply with the planning scheme immediately prior to or during the 15 year period, but that provision is subject to exceptions. The second exception is where, during the 15 year period, the responsible authority has clearly and unambiguously given a written direction to cease the use by reason of non-compliance with the planning scheme.
2. In this case, a planning contravention notice was served on Treefern Nominees Pty Ltd on or about 3 November 2004 which notice came to the attention of Mr Bill Beasley who, I find, discussed it with the then council officer Cheryl Elvin on 9 November 2004. This notice, in addition to formalities, said :

AN ALLEGATION RECEIVED AND A SUBSEQUENT INSPECTION OF COUNCIL RECORDS CONCERNING PREMISES AT 195 Heidelberg-Warrandyte Road WARRANDTYE VIC 3113 WAS CONDUCTED AT 0731 HOURS on 03RD November 2004

AND REVEALED THAT YOU ARE IN CONTRAVENTION OF THE PLANNING AND ENVIRONMENT ACT 1987, SECTION 126 AND THE MANNINGHAM PLANNING SCHEME.

THE FOLLOWING MATTERS REQUIRE URGENT ATTENTION:

The use of the abovementioned property as a 'Store' (housing of goods, machinery and vehicles (caravans) requires an approved Planning Permit from the Responsible Authority (Council) under the Manningham planning scheme

Cease use of 195 Heidelberg-Warrandyte Road, Warrandyte as a 'Store' until an approved Planning permit is obtained from the Responsible Authority AND

Contact the Planning Enforcement Officer whose name appeals below on the telephone number listed above.

1. In my opinion, this document satisfies the exception. In my opinion it clearly and unambiguously is a written direction to cease use of the land as a store and as a store for caravans and the reason for this direction is non compliance with the planning scheme.
2. Mr Connor on behalf of the respondents, dealt with this matter in paragraphs 17-21 of his written submissions. He commences by saying that this contravention notice did not give rise to the loss of existing use rights in this case. I think the effect of this exception is not so much that it causes the loss of existing use rights where they exist, rather the exception where it applies prevents existing use rights being established under the 15 year rule in the first place.
3. Mr Connor claims that it is not an unambiguous direction. He says this is because it is not absolutely clear what should occur and he interprets it as being primarily to seek a permit application. He goes on to say that the contravention notice is not only ambiguous but wrong, adding that it was not subject to "alternative action".
4. The essential point is that, whether or not ambiguous on other points, it was unambiguous in clearly and specifically saying "YOU MUST : Cease use of 195 Heidelberg-Warrandyte Road, Warrandyte, as a 'Store'".
5. The contravention notices already referred to "Store" in terms of goods and machinery as well as caravans. "Store" can include storage of goods and it encompasses caravan storage. It is quite possible to obtain a permit for a limited store for certain goods under the Low Density Residential Zone provisions and section 2 of the table of uses therein, provided the relevant condition is met. The document invites contact with an enforcement officer and contemplates the possibility of a planning permit, at least for a limited store. The essential points that it is unambiguous on is that it directs cessation and that this is because of contravention of the planning scheme that is unambiguous, and that is enough.
6. Mr Connor refers to paragraph 32 of Kraan's case, but that is beside the point. I assume he is referring to the last two sentences of that paragraph which read :

Presumably such a direction would place the landowner 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.

1. These sentences are no more than an observation as to how a recipient of such a notice might respond. The essential of the notice is that it tells the recipient that the use must cease because it is not in compliance with the planning scheme. Whether or not the recipient can and does take action to rectify the situation so as to legalise the use where that is possible, is a matter for the respondent. Where the use can be legalised by obtaining a permit, that might be done. In Kraan's case it was suggested that a declaration could challenge the direction. In this present case it is challenged by raising an existing use defence to an enforcement order. However, I find that the notice satisfies the second exception under clause 63.11.
2. A subsequent planning contravention notice was Exhibit EM-2 to the affidavit of Mr Maltar is dated 20 March 2006. Its terms also satisfy the second exception. It asserts contravention of the planning scheme and says that the following matters require urgent attention :

You are in contravention of clause 32.03-1 of the Manningham City Planning scheme by using the abovementioned property as a 'Store' (Caravan storage) without an approved planning permit.

Ensure the 'Caravan Store' use ceases and all Caravans are removed of (sic)[16] the property within the time specified.

1. In this notice it is unambiguous in saying that the use of caravan store, which I think amounts to the same thing as caravan storage, must cease because it contravenes the planning scheme.
2. Before leaving the this aspect I will refer to another matter raised by Mr Connor, although I do not need to make a final decision in relation to it for the purposes of this case. In paragraph 17 of his written submissions he referred to Port Phillip CC v Beckman[17] which relates to the division of opinion that has occurred in this Tribunal in relation to the interpretation of the first paragraph of clause 63.11. The part of that paragraph that is relevant for this purpose reads

If, in relation to an application or proceeding under the Act or the scheme... the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof 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.

1. The question arises as to whether the fifteen year period means fifteen years immediately prior to the application or proceeding, or can it be a fifteen year period at any time prior to the application or proceeding? The view that it had to be immediately prior was favoured in the case of Beckman v Port Phillip CC (No.1)[18]. The contrary view was favoured in Port Phillip CC v Beckman which follow Gyurcsik v Greater Geelong CC[19].
2. This distinction can be of practical importance in some cases. If the Beckman v Port Phillip CC (no.1) view is correct a responsible authority might give a clear and unambiguous direction to cease a use under the second paragraph of clause 62.11 before commencing an enforcement order application thus, it seems, putting a fifteen year rule existing use right out of the question. If, on the other hand, the Port Phillip CC v Beckman and Gyurcsik v Greater Geelong CC views are correct, the giving of such a clear and unambiguous direction prior to issuing an enforcement application will come too late (from the point of view of the responsible authority) if any fifteen year period prior to the written direction can be proved. That can occur if the fifteen years need not be immediately prior to the application or proceeding.
3. It may well be that the Beckman v Port Phillip CC (No. 1) view importing "immediately" is what was intended when the provisions were drafted. That could be argued to be the preferable view, from the point of view of sustaining the purposes of the planning scheme and the principles underlying the existing use right exception.
4. Be that as it may, the contrary view is that, whatever the intention may have been the provisions do not actually say "immediately before" and should say so if that is what was intended. This interpretation avoids having to read in a word that does not actually appear. Although I think there is room for doubt as to what was intended, and perhaps even as to how the words should be interpreted, a purposive interpretation in support of Beckman v Port Phillip CC is hard to justify in the absence of some clear indication that the reading in of "immediately" was intended.
5. Without having to make a decision on the point in relation to the present case, I incline to the view that the Port Phillip CC v Beckman and Gyurcsik v Greater Geelong CC cases represent more correct statutory interpretation in the circumstances.
6. If "immediately" prior to the date of application or proceeding was intended, or in any event if it is thought to be preferable, the matter should be clarified by an amendment inserting the word "immediately" before the word "prior" at the end of the first paragraph of clause 63.11.

1. The case presented at the hearing by Mr Connor on behalf of the respondents was based on alleged existing use rights which, in turn, was based on the fifteen year rule provisions in clause 63 of the planning scheme. What I have said already indicates why I do not uphold the existence of any relevant existing use rights that would afford the respondents a defence to this enforcement order application.
2. He did not attempt to make out a case for existing use rights based on the lawful use of the land immediately prior to the approval date for caravan parking. Furthermore he did not attempt to make out a case for such existing use rights based on a planning permit authorising such use immediately before the approval date where the use had commenced before expiry of the permit. Thirdly, he did not attempt to make out existing use rights based on a permit having been granted under clause 63.08 of the planning scheme for an alternative prohibited use in place of an existing prohibited use where the alternative use commenced before the permit expired. I should say that I think Mr Connor was perfectly correct not to attempt to make out a case on any of these three grounds, as none of them appear to be sustainable.
3. Nevertheless his instructing solicitors, acting on behalf of the respondents wrote a letter to the responsible authority dated 28 June 2006, apparently with the intention of attempting to persuade the responsible authority not to take any further action in relation to the caravan storage use of the land. This letter claimed the existence of existing use rights on the three grounds mentioned in the previous paragraph, plus the fifteen year rule grant. I have already dealt with the fifteen year rule.
4. So far as the second and third of the additional grounds mentioned in the letter, they are completely unsustainable. Reference is made in the letter to two planning permits namely No 8935 dated 13 August 1997 and PL01/012621. As part of the proofs on behalf of the Responsible Authority in this case a written statement under section 141 of the Planning and Environment Act 1987 was tendered. This statement listed, and had attached to it, the four planning permits said, in the statement, to be in force in relation to the land. The list does not include either of the permits referred to in the solicitors letter.
5. Discussion in the letter refers to conditions in those permits as to where vehicles may be parked. The discussion does not indicate what is allowed by those particular alleged permits, and in particular does not state that they authorise use of the land for any stated purpose, much less for caravan storage. I have not seen either of these alleged permit documents. They appear to have no relevance and I am fortified in supposing that have no relevance by the fact that Mr Connor has not referred to them or tendered them. So capable a planning advocate as he is would not overlook them, if they were relevant.
6. This leaves only the basis for existing use rights suggested in the solicitors letter based on the allegation that the use was lawfully carried on immediately before the approval date of the planning scheme which the letter claims was 29 June 2000. Of course, to be lawfully carried out immediately prior to that date such use would have to have been lawful under the planning controls or planning scheme applicable to the land before that date. All that would have to be proved. In fact, it might be necessary to prove lawful commencement before the approval date of a chain of planning schemes and planning scheme amendments. None of that has been presented because, I believe, Mr Connor has not thought that there is any justification for this claim.
7. I mention it because the argument in the letter in favour of it is based on a misconception. This misconception was to confuse caravans, which are chattels, with the land use "Movable dwelling unit" that used to appear in Victorian planning schemes. I believe the land use concerned is now "Dependent Person's Unit". The argument in the letter refers to attempts to rely on two previous Tribunal decisions namely Whittlesea CC v Charlesworth[20] and Farmyard Trends Pty Ltd v Whittlesea CC[21].
8. The reasons in the first of those cases records the then definitions. At that stage "Moveable dwelling unit" was defined to mean:

Moveable dwelling unit - a dwelling that is a moveable unit under the Housing Act 1983.

1. That is a land use definition. It is a land use commonly allowed as of right. It was in section 1 of the relevant table of uses for the relevant zone in the Charlesworth case.
2. The expression "Moveable dwelling unit" was defined in the Housing Act 1983 to mean:

Moveable dwelling unit - a house capable of being transferred from place to place.

1. The word "house" under the Housing Act 1983 was defined, according to the Charlesworth reasons, in the following terms:

House means any building (whether temporary or permanent) or any part of a building which is or at any time has been or is intended to be used as a dwelling and includes:

(a) a flat;

(b) any out-building, fences and other appurtenances to house or flat;

(c) any house to be erected or in the course of erection; and

(d) any land on which a house is situated or is to be erected or is in the course of erection.

This is an inclusive definition so that "house" within its meaning in ordinary English is also included.

1. The word "Dwelling" under the then planning scheme, (which was a land use definition), according to the reasons read:

Dwelling - a building that provides self-contained living accommodation permanently or temporarily for one of the following:

at least 2 people who are not a family and the accommodation does not have more than 10 habitable rooms.

(see attached house, caretaker's house, detached house, display house, dual occupancy, flat, moveable dwelling unit and retirement village).

1. The reasons refer to "a moveable dwelling unit (caravan)". I think it is a mistake to equate caravans with moveable dwelling units. However, perhaps it is now more pertinent to refer to the current definition. The current land use definition of Dwelling reads:

Dwelling - a building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

1. Dwelling is a sub-category of "Accommodation" and it includes Bed and breakfast and Caretaker's house. Dwelling does not include Dependent person's unit. Dependent person's unit is a variety of Accommodation, but not a variety of Dwelling. I believe Dependent person's unit is the current equivalent of what was referred to in Charlesworth case as Moveable dwelling unit. The land use "Dependent person's unit" is now defined as:

A moveable building on the same lot as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing building.

1. Clause 72 contains a definition of "Moveable building". It is important to note that this definition of Moveable building is not a land use term, but a general term. Moveable building is defined to mean:

Moveable Building - a structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion.

1. It is to be noted that caravan is specifically excluded from the general term Moveable building and that the expression Moveable building is incorporated in the land use term Dependent person's unit. I believe that the correct understanding is that a Dependent person's unit is like what is commonly called a "granny flat", but it is not part of the main house and it is designed to be installed whilst needed for a dependent relative, and able to be removed after the need to accommodate the dependent relative ceases.
2. So far as the Low Density Residential Zone relevant in the current case is concerned, Dependent person's unit is a section 1 use so that no permit is required to use the land for such a purpose provided the conditions are met. The conditions are that there must be only one Dependent person's unit on the lot and that the requirements of clause 32.03-1 are met. These requirements include sewerage or other wastewater disposal, reticulated potable water and reticulated electricity. If those conditions are not met, then Dependent person's unit becomes a section 2 use for which planning permission is required.
3. All this is completely beside the point so far as the caravans on the Beasley land is concerned. A caravan is a chattel and a vehicle even though it is a vehicle that is fitted up for temporary living in the form of camping away from the occupants' usual abode or dwelling. A caravan is not a development or a land use. Using land for the storage of unoccupied caravans is a land use. Existing use rights apply only to land uses, not to developments, vehicles or caravans themselves. A caravan is not a Dependent person's unit as now defined or, in my opinion, not a Mobile dwelling unit in accordance with the definitions that appear in Charlesworth case. In particular it is not a "house" as defined in the Housing Act 1983 or in terms of ordinary English usage. Moveable dwelling unit in the Housing Act was a house and the definition of Moveable dwelling unit incorporated both "Dwelling" and "Moveable unit", the latter in terms of the Housing Act 1983. These concepts do not include a vehicle like a caravan.
4. I think it must be supposed that the cases referred to dealt with arguments raised in those cases on the basis that it had been submitted that a caravan was a moveable dwelling unit without necessarily deciding that this was a correct proposition. Particularly the Farmyard Friends Pty Ltd v Whittlesea CC case appears to be worded in that way. It seems to say, even if it were correct to regard caravan as a Moveable dwelling unit for the purpose of argument the submission would still fail for these other reasons. In other words, the reasons in that case seems to have assumed that proposition, merely for the purposes of argument, and without deciding that the assumption is correct.
5. The solicitor's letter appears to have quite wrongly confused caravans with Moveable dwelling units, now known as Dependent person's units.

1. The land is being used for Boat and caravan storage. That land use is prohibited under the planning scheme. There are no existing use rights for that use in relation to the land. It follows that the use is in contravention of the planning scheme. This contravention should not be allowed to continue.
2. It appears that, if the Beasleys wish to use the land for this purpose, they will need to secure an amendment to the planning scheme. Whether or not they can obtain such an amendment it is not for me to say. That is a question beyond my jurisdiction.
3. I propose to make an enforcement order. In doing so I will allow 90 days for the removal of caravans from the land.
4. The enforcement order application seeks an order that the respondents pay the legal costs of the Responsible Authority. The question of costs will be reserved at this stage. If the application for costs is to be persisted with directions will need to be sought as to how it is to be dealt with. Such directions might involve further written submissions or a further hearing on that question.

[1] A rhomboid is an oblique angled parallelogram but with only two of the opposite sides parallel

[2] [2007] VCAT 2473

[3] [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139

[4] [1984] HCA 76; (1984) 54 LGRA 99; (1984) 56 ALR 295 at 300

[6] [1972] HCA 21; (1972) 128 CLR 1 at 25; [1972] HCA 21; [1972-73] ALR 3; (1972) 26 LGRA 437 where the case is named Parramatta CC v Brickworks Ltd (No. 3)

[7] [1973] HCA 65; (1973) 129 CLR 138 at 144; [1973] HCA 65; 2 ALR 145 at 149

[8] [1975] HCA 15; (1975) 132 CLR 83

[9] (1982) 47 LGRA 159

[12] [2006] VCAT 1629

[13] [2006] VCAT 1629

[14] [1982] VicRp 14; [1982] VR 157; (1979) 42 LGRA 395

[15] [1964] HCA 37; (1964) 110 CLR 529; [1965] ACR 70; (1964) 10 LGRA 147.

[18] [2001] VCAT 444.

[19] [2001] VCAT 1520

[21] [2005] VCAT 464