1. The shops located at 120 and 122 Bay Street, Brighton have existing use rights.
2. The site specific control relating to 120 - 130 Bay Street, Brighton contained in clause 52.03 as an incorporated document dated July 1991 has not expired.
3. The construction of alterations to the shops at 120 and 122 Bay Street, Brighton, buildings and works and the construction of two or more dwellings on the subject land requires a permit under clauses 52.03 and 32.01- 4 of the Bayside Planning Scheme.
4. The merits hearing of the application will be heard on 6 August 2013 commencing at 10.00am for 1 day at 55 King Street, Melbourne.

Alterations to two existing shops at 120 and 122 Bay street Brighton and to construct at the rear of the shops two additional dwellings with car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01- 4 - construct two or more dwellings on a lot

Clause 52.03 - construct a building or to construct or carry out works

120 Bay Street has an area of 92m² at ground level and is used as a shop. It has a caretakers residence at the upper level.

122 Bay Street has an area of 78m² at ground level and is used as a shop. It has a caretakers residence at the upper level.

Apart from a shed at the rear of 122 Bay Street the remainder of the two lots are vacant and abut a rear laneway.

Classic Terrace Pty Ltd v Melbourne CC [2011] VCAT 372; R v City of Oakleigh; ex parte New Gamble Brickworks Pty Ltd [1963] VicRp 92; [1963] VR 679; Leeming v City of Port Adelaide (1986) 62 LGRA 296; City of Nunawading v Harrington [1985] VicRp 64; [1985] 55 LGRA 139;

1. The Responsible Authority refused an application to carry out alterations to two existing shops at 120 and 122 Bay Street Brighton and to construct at the rear of the shops two additional dwellings with car parking.
2. I have been requested to consider a preliminary legal issue before the merits of the application can be considered. The legal issues that arise are as follows:
   • Whether both shops (120 & 122) or only one shop (120) has existing use rights?
   • Whether a site specific control identified under clause 52.03 of the Bayside Planning Scheme has expired? and
   • If the site specific control has not expired whether the control applies to the whole of the land? and
   • What permits are required under the Bayside Planning Scheme?

Whether both shops (120 & 122) or only one shop (120) has existing use rights?

1. The Responsible Authority submits that 120 Bay Street has existing use rights but that 122 Bay Street has lost its claim for existing use rights as the use of the shop stopped in 2010.
2. In this respect the Responsible Authority relies upon the provisions of section 6 of the Planning and Environment Act 1987 (the Act) which provides that a planning scheme cannot prevent the continued use of a building if that use commenced prior to the planning scheme coming into force, unless the use 'has stopped for a continuous period of two years'[2].
3. Clause 63 in the Bayside Planning Scheme relates to existing uses. The applicant places reliance on clause 63.01 which provides 'an existing use right is established in relation to use of land under this scheme if any of the following apply: ... proof of continuous use for 15 years is established under clause 63.11'. Clause 63.11 provides:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after 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. Mr Matthews gave evidence of his purchase and use of both shops to sell antiques.
2. He purchased 122 Bay Street in 1971 and commenced to sell antiques from the shop which was known as 'Brighton Antiques' after it ceased as a dress shop. Permit P301 dated 28 March 1972 allowed for 'the land situate at and described as 122 Bay Street for the purpose of sale of paintings and antiques'.
3. He purchased 120 Bay Street in 1987. Prior to his commencing to use this shop, as part of his antique business, it was used by the Liberal Party as an electoral office. Although there was no permit available, Mr Matthews indicated he can recall seeing a permit for this use.
4. Both shops were used as part of his antique business. He sold antique furniture from both shops which he used as showrooms for the antique furniture and goods.
5. The shops were open on Saturday mornings and 'by appointment' during the week between 1988 and 1998. In mid to late 1999 the shops were open three days a week from 10am to 4pm as well as on Saturdays from 9.30am to 1.30pm and 'by appointment'.
6. Mr Matthews indicated he reverted to opening only on Saturday mornings and 'by appointment' in about March 2000 when the market weakened.
7. At this time he stored and displayed antique furniture in 122 Bay Street and sold from 120 Bay Street. This continued until 2010 when the shop floor in 122 Bay Street suffered irreparable damage and Mr Matthews was required to pull up the floor for replacement. All stock was transferred to 120 Bay Street.
8. The floor has not been replaced as yet. At about the same time Mr Matthews decided to lodge an application with the Council in July 2010 to renovate both shops and the residences above, as well as develop two additional dwellings on the land at the rear of the shops.
9. He continued to sell from 120 Bay Street on Saturday mornings and 'by appointment' until late 2011 when he continued to sell only 'by appointment' until recent weeks when he ceased all trading and has moved the furniture.
10. Mr Matthews submits he has no intention of ceasing to use both 120 and 122 Bay Street as shops. But for the extended time delay in having the permit application considered by the Responsible Authority he would have been able to repair the floor of 122 Bay Street and allow it to be used as a shop within the two year period.
11. In relation to the operation of the 15 year period I find that it runs from the date on which Mr Matthews made application to the Responsible Authority for a permit for alterations, additions and development under the Bayside Planning Scheme, that date being July 2010.
12. I find that for the 15 years prior to July 2010 that is from 1995 to 2010 120 Bay Street has been continuously used as a shop. It therefore has existing use rights.
13. I find that in relation to 122 Bay Street this also has existing use rights as a shop, despite the inability of Mr Matthews to use the shop from 2010, due to there being no floor and his inability as a result of the time taken by the Responsible Authority in processing his permit application. 122 Bay Street had been used as was 120 Bay Street for the 15 years prior to the application to the Responsible Authority as a shop.
14. I do not accept, as put by the Responsible Authority, that Mr Matthews could have made an earlier application to the Tribunal or that he could have undertaken repairs to the floor. It was not unreasonable that on making an application to the Responsible Authority to undertake significant works to the shops that Mr Matthews did not consider it necessary to repair the floor which most likely would have to be, or will have to be, replaced, following a decision regarding the permit application. He indicated he had had numerous discussions with various town planners employed by the Responsible Authority in an effort to put forward a suitable application that would meet their approval. In this respect it is not unreasonable that he decided to go this way rather than lodging an earlier application with the Tribunal, particularly as it would seem he was getting an indication of support from the town planners.
15. I find that Mr Matthews has not abandoned his intention to continue to use 122 Bay Street as a shop. In this respect I rely upon a number of decisions[3] referred to me which indicate that in some circumstances a use is continued notwithstanding no physical activities are undertaken, such hiatus must only constitute an interruption or break of a kind not bringing a termination or abandonment.
16. 'A period of inactivity or failure to exercise the use actively does not necessarily indicate that the use has been discontinued'. 'The intention of the owner as to resuming the use is a relevant but not decisive consideration'[4].
17. The lodging of an application to refurbish 122 Bay Street is a clear indication that Mr Matthews has every intention of continuing the use of 122 Bay Street as a shop. He continued to use 120 Bay Street during this period for his antique business and it was only due to the condition of the floor he was unable to use 122 Bay Street.
18. Whilst the Tribunal in Classic Terrace ultimately found that an 11 year period of non-activity constituted an abandonment of the existing use rights, in that decision reference was made to a number of decisions where a period of 3 to 4 years did not result in abandonment.
19. In City of Nunawading v Harrington[5] the land was still being used albeit in a decreased state but still in relation to the purpose of a bakery, it continued to be used for storage along with the use of a bakery on another site. This inactivity extended for a period of 3 years.
20. In Leeming the period of inactivity in relation to the use of the land as a meat processing facility occurred over a 3 year period and during that period the premises were repeatedly advertised for sale as a meatworks. In New Gamble Brickworks the period of inactivity was 3 years.
21. In the circumstances of this matter Mr Matthews' conduct at all times leads me to conclude he had not abandoned the use of 122 Bay Street as a shop. 120 and 122 Bay Street have been used continuously for a period of 15 years and therefore have existing use rights.

Whether a site specific control identified under clause 52.03 of the Bayside Planning Scheme has expired?

1. A site specific control in relation to 120 -130 Bay Street Brighton is an incorporated document, dated July 1991, under clause 52.03 of the Bayside Planning Scheme. Mr Brooker provided some background information in relation to the site specific control that arose as a result of a Panel recommendation in relation to Amendment L10 to the Brighton Planning Scheme in April 1990.
2. The Panel recommendation was not to rezone the land to a Neighbourhood Business Zone but rather to retain its Residential C zoning (the forerunner to the current Residential 1 zone in which the land is located) with the insertion of the site specific control.
3. The site specific control provides:

• A permit may be granted to use the front ground floor of the building existing on 1 July 1991 for a shop, bank or electoral office provided that the floor area of any occupancy does not exceed 500 square metres.
• If used for a shop, bank or electoral office:

- A permit is required to construct a building or to construct or carry out works.

- A permit must not be granted for structural alterations to the building existing on 1 July 1991 except for storage or amenities.

- Any extension of the floor area must only be used for storage or amenities.

1. Clause 52.03 provides in relation to the expiry of the specific control that:

If a specific control contained in an incorporated document identified in the schedule to this clause allows a particular use or development, that control will expire if any of the following circumstances applies:

• The development and use is not started within two years of the approval date or another date specified in the incorporated document.
• The development is not completed within one year of the date of commencement of works or another date specified in the incorporated document.

The responsible authority may extend the periods referred to is a request is made in writing before the expiry date or within three months afterwards.

Upon expiry of the specific control, the land may be used and developed only in accordance with the provision of this scheme.

1. The purpose of clause 52.03 is 'to recognise specific controls designed to achieve a particular land use and development outcome existing on the approval date'.
2. 'Land identified in the schedule to this clause may be used or developed in accordance with the specific controls contained in the incorporated document corresponding to that land'.
3. No expiry date is contained in the specific site control. The use of the land at the time of the site specific control was as shops and this has continued and is recognised above as having existing use rights as shops.
4. In terms of the provisions relating to development, it is my view that if a permit is granted for any development in relation to the shops, as confined under the site specific control for 120 and 122 Bay Street, then the expiry provisions would apply, if the development was not started within two years of the approval date or the development was not completed within one year of the date of commencement.
5. In the current circumstances there has been no permit approval for development, therefore the provisions in clause 52.03 in relation to expiry have not yet been triggered.
6. The site specific control has not expired.

If the site specific control has not expired whether the control applies to the whole of the land?

1. The site specific control only applies to the 'front ground floor of the building existing on 1 July 1991 for a shop ... provided that the floor area does not exceed 500 square metres'. This is clearly stated in the site specific control provisions.
2. It does not apply as submitted by the Responsible Authority to the whole of the land being the two lots, and which includes the first level of the building, currently used as a caretakers residence as well as the rear of the subject land.

What permits are required under the Bayside Planning Scheme?

1. Under clause 63.05 a use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

�� No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

�� Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

�� The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

1. The use of the ground floor as a shop is a section 3 prohibited use within the Residential 1 zone under the Bayside Planning Scheme. As referred to above the use of the ground floor of 120 and 122 Bay Street as shops has existing use rights. Any proposed buildings and works must be carried out under a permit and must comply with the 'building or works requirements in this scheme'.
2. A permit is required for the proposed buildings and works to the shops pursuant to the site specific control attaching to the subject land. The site specific control clearly states 'a permit is required to construct a building or to construct or carry out works' if 120 and 122 Bay Street is used as a shop.
3. Under the specific control any permit in relation to the buildings and works for the shops is confined under the site specific control to only storage or amenities and there can be no structural alterations to the building existing on 1 July 1991. If there is an extension to the floor area such area must only be used for 'storage and amenities'. There appears to be no proposed extension of the floor area for either 120 or 122 Bay Street.
4. Plans identify the existing ground floor area of 120 Bay Street as being 92m² and for 122 Bay Street as being 78m². These measurements include a rear section to each shop but not the area shown behind 120 Bay Street as 'existing residence No 3 being 57m²'. The proposed plans for the ground floor do not change the existing area identified for each shop but shows the removal of a wall to incorporate the whole area and identifies this area as including amenities. Whilst under the site specific control it would appear a permit is required for these internal buildings and works the proposed works in my view does not offend the requirements of the site specific control. The shops are not being extended and the area of the shops falls short of the floor area of the shops exceeding 500m², as indicated in the site specific control.
5. In relation to the first floor relating to the existing residences it is proposed to internally reconstruct them and to also construct two additional units at the rear of both lots. A permit is required under the Residential 1 zone at clause 32.01- 4 to construct two or more dwellings on a lot

1. The existing shops at 120 and 122 Bay Street, Brighton have existing use rights.
2. The site specific control relating to 120 - 130 Bay Street, Brighton contained in clause 52.03 as an incorporated document dated July 1991 has not expired.
3. A permit is required for buildings and works to the shops under clause 52.03 and a permit is required under clause 32.01 - 4 for the construction of two or more dwellings on a lot.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Section 6(3) & (4) Planning and Environment Act 1987

[3] Classic Terrace Pty Ltd v Melbourne CC [2011] VCAT 372; R v City of Oakleigh; ex parte New Gamble Brickworks Pty Ltd [1963] VicRp 92; [1963] VR 679; Leeming v City of Port Adelaide (1986) 62 LGRA 296;

[4] Leeming v City of Port Adelaide (1986) 62 LGRA 296

[5] [1985] VicRp 64; [1985] 55 LGRA 139