• Damien Sutton, Council officer
• Neil Murray, former Council officer

Mr Donmez left the hearing after his adjournment application was refused, and chose not to participate in the main hearing.

1. The respondent Serdar Donmez ('Mr Donmez') occupies part of the land known as 3003 Eleventh Street, Irymple. This land, together with adjoining land, are owned by Mehmet and Elif Donmez, and the balance of the land not occupied by Mr Donmez is predominantly used for agriculture.
2. According to the evidence, the area occupied by Mr Donmez is a fenced compound approximately 29 m wide and 72 m long, as measured from the Eleventh Street frontage ('Compound'). In some documents, the Compound is separately identified as 3031 Eleventh Street, Irymple.
3. The applicant Mildura Rural City Council ('Council') is the responsible authority for the administration and enforcement of the Mildura Planning Scheme.
4. The Council contends that Mr Donmez is using the Compound for backpacker or itinerant worker accommodation as part of a labour hire business, without a permit under the planning scheme or in circumstances where the use is prohibited. The Council also contends that Mr Donmez has constructed certain buildings and works in the Compound without a permit under the planning scheme.
5. The Council has chosen to seek a declaration from VCAT about the lawfulness of the existing use and development before considering formal enforcement action. This is because the Council considers that there is potentially some uncertainty as to how the use of the Compound should be characterised for planning purposes, and because there are some indications that the land may have had the benefit of existing use rights for seasonal worker accommodation.
6. I note for the record that Mr Donmez has been the subject of other legal proceedings and media scrutiny in relation to accommodation provided at the Compound, including the alleged exploitation of backpackers and itinerant workers coming to Mildura. Mr Donmez believes that there is an unfair 'witch hunt' against him. However, these other matters are largely irrelevant to the proceeding before me, save for any background material which assists in a relatively dispassionate characterisation of the development and use of the land in the Compound for planning purposes.

1. At the commencement of the hearing, Mr Donmez sought an adjournment, which was strongly opposed by the Council. The issues in the proceeding have been a matter of dispute between the Council and Mr Donmez for several years. As far back as 2010, the Council had obtained restraining orders against Mr Donmez in the Magistrates' Court under the Public Health and Wellbeing Act 2008 in relation to the accommodation facilities at the Compound.
2. The Council sought the present declaration in November 2015, and it had been initially scheduled for a hearing in May 2016. In February 2016, Mr Donmez had raised some similar issues to those raised in his latest adjournment request about his preparedness for a hearing, and his difficulties in obtaining legal representation. VCAT had then adjourned the hearing until August 2016, and gave Mr Donmez until 17 June 2016 (an extended date requested by Mr Donmez himself) to prepare material in relation to any claim of existing use rights, and to provide a statement about the use and development in the Compound.
3. Mr Donmez has not provided that statement, and he was unable to provide any evidence (correspondence or emails, medical certificate etc.) to support his other various assertions as to why he was still not ready for a hearing.
4. The Council evidence indicates that, in 2010, the Council had written to Roy Costa, a town planner who appears to have acted in the past on behalf of Mr Donmez, and who had raised the issue of existing use rights on Mr Donmez' behalf. Through a letter dated 6 May 2010, the Council had apparently advised Mr Costa that the onus of substantiating any alleged existing use rights was on Mr Donmez. I say 'apparently' because, although the Council evidence and later correspondence refers to the correspondence with Mr Costa in May 2010, the actual letter dated 6 May 2010 has not been provided.
5. By letter dated 23 December 2010, the Council also wrote to JR Watson Legal Services, a firm that appears to have acted on behalf of Mr Donmez in 2010, indicating that despite claims of existing use rights, Mr Donmez had yet to put forward any credible information that would establish any such right.
6. The Council evidence also includes correspondence between the Council and Zindilis lawyers, a firm that appears to have acted on behalf of Mr Donmez in 2014. In particular, the Council has exhibited a letter dated 15 August 2014 from Zindilis lawyers (the 'Zindilis letter') setting out the then basis for Mr Donmez' claim of existing use rights, and at least some information about buildings and works on the land. That letter also purports to be based on advice from counsel with expertise and experience in town planning matters.
7. I refer to this correspondence as it indicates that the issues in this proceeding have been clearly 'on the table' since at least 2010, and that Mr Donmez has in the past had the opportunity to obtain (and has apparently obtained) professional advice on those issues. It undermines Mr Donmez' assertion that he is not in a position to properly respond to the matters raised in this proceeding.
8. Procedural fairness cuts both ways. The hearing has been adjourned once already. Mr Donmez has had plenty of time to obtain advice and/or representation, or to prepare for the hearing, and has not done so. Given the nature of the proceeding and the time that has already elapsed, I considered that the Council was entitled to have its application heard.
9. Shortly following the decision to refuse the adjournment, Mr Donmez left the hearing room, indicating that he would later seek a transcript of the hearing. The Council's application was heard in his absence, including the calling of witness evidence and the presentation of submissions.
10. As it has transpired, there are gaps in the Council's evidentiary material. I have thus set out in these reasons the basis for an interim decision, and I have sought supplementary written submissions from the Council before making a final decision on the declarations (if any) that should be made.
11. In doing so, I consider it fair to also give Mr Donmez a final opportunity to make a written submission and produce relevant material. This could be done either by Mr Donmez directly or via a legal or town planner representative. My orders allow for this, and provide a reasonable time period of approximately two months until 21 October 2016 for this to occur. Mr Donmez thus has the opportunity to respond to the Council's application and submissions, and the initial findings in this interim decision, if he wishes to do so. In particular, Mr Donmez has the opportunity to provide any documents, photographs, witness statements, or other evidence that support his apparent claim for existing use rights or the lawfulness of particular buildings and works. He, more than anyone, has access to any such information that might exist, having been the key person involved in the development and use of the Compound over the past few years.
12. Given that Mr Donmez is self-represented, I consider it fair to warn Mr Donmez in plain terms that, if he fails to provide any evidence by 21 October 2016 to support his apparent claim for existing use rights or the lawfulness of particular buildings and works, in circumstances where he has the knowledge and opportunity to do so, the consequence is that the Tribunal may draw an adverse inference about such matters in making its final decision where the Council has provided a reasonable basis for a finding it asserts on the balance of probabilities. This would make it more likely that the Tribunal would accept the uncontested evidence provided by the Council as providing a satisfactory basis for the making of at least some of the declarations that it seeks. I encourage Mr Donmez to seek professional advice on these issues. I consider that the process that I have outlined above best provides procedural fairness and 'practical justice' to both parties.

1. The background evidence of the Council is extensively set out in the affidavits of Damien Sutton, Council officer, and Neil Murray, former Council officer, and the many exhibits to their respective affidavits - including some relevant historical correspondence, aerial photographs and other photographs taken during formal site inspections undertaken by Mr Sutton and/or Mr Murray. The Council evidence also includes statements pursuant to ss 140 and 141 of the Planning and Environment Act 1987 in relation to relevant planning scheme matters and Council permit records. Both Mr Sutton and Mr Murray gave sworn evidence at the hearing. I do not propose to set out all of the evidence in these reasons, save to note that I tentatively accept the factual evidence tendered on behalf of the Council.
2. Based on the available evidence, I make the following initial findings:
   • The Compound occupied by Mr Donmez is a fenced area approximately 29 m wide and 72 m long.
   • The Compound forms part of Lot 2 on PS 648019P, with the broader landholding having been purchased by Mr Donmez' brother in 1989 and transferred to Mr Donmez' parents in 1995.
   • Within the Compound is a large freestanding shed erected in May 2000. The lawfulness of the large shed is not in question. It apparently did not require a planning permit given its association with the use of the balance of the land for agriculture, and it received building approval as a 'minor storage, non-habitable' structure.
   • Adjoining the large shed is a small colourbond shed, approximately 5 m x 3 m. From the aerial photographs, it appears that this small shed was erected sometime between 2007 and 2010. No planning permit exists for the small shed, if required. A combined Council/police inspection of the site on 20 April 2010 (under warrant), and photos from that inspection, show that this shed was by then being used as a bunkhouse. Further Council inspections on 10 July 2014 and 23 February 2015, and photos from those inspections, show that the shed was still being used as a bunkhouse, containing a number of bunk beds and a reverse cycle air-conditioner.
   • The Compound also includes a structure described as the Pickers' Hut. Given its potential significance to the issues in dispute, I will refer to this hut separately below.
   • Adjacent to the Pickers' Hut is a shower block, potentially connected to the on-site septic system. From the aerial photographs, it appears that the shower block was erected sometime during mid-2010. No planning permit exists for the shower block, if required.
   • Adjacent to the Pickers' Hut and shower block is a portable toilet. Whilst described as a 'portable' toilet, it has been connected to the on-site septic system as a semi-permanent fixture. From the aerial photographs, it appears that the portable toilet was first erected sometime during mid-2010, and moved to its current location sometime during mid-2014. No planning permit exists for the portable toilet, if required.
   • Sometime after 2007, a number of caravans were brought onto the site. From the aerial photographs, it appears that there were 4 on-site caravans in 2010, and 8 on-site caravans by 2014. The Council does not contend that the caravans require planning approval as 'buildings or works', but the Council contests the 'use' of the caravans to provide accommodation at the Compound.
   • An outdoor open area, including planted vegetation and an exercise yard, now also exists to the north of the sheds and caravans.
3. Based on the available evidence, I make the following additional initial findings in relation to the Pickers' Hut:
   • The date upon which the hut was constructed or placed on the land is presently unknown to the Council. The Council witnesses believe that the hut was likely pre-fabricated and placed on the land and that, given its siting vis-a-vis the large shed and other landscaping, this may have occurred only in or around 2000, rather than the hut having been on the land for a long period historically.
   • This view is perhaps broadly consistent with the 2014 Zindilis letter that claims that the hut is a 'moveable cabin' on the basis that it was constructed off-site, and then lowered onto pads which sit on top of the ground. However, again, no date is given for when this occurred, save for the inference that this occurred with Mr Donmez' knowledge, and therefore probably during the period of Mr Donmez' occupation.
   • The Pickers' Hut appears in the Council's first aerial photograph dated 25 August 2002, as a structure approximately 6 m x 6 m. I was not made aware as to whether there are any other photographs that predate this period.
   • At much the same time, on 6 August 2002, BW&A building surveyors, on behalf of MA & E Donmez, applied for a planning permit for alterations to the Pickers' Hut (described in the application as 'Existing Workman's Quarters'). The plan lodged with the application showed an existing hut of 5.97 m x 5.92 m, with a living area and two bedrooms, but with no kitchen or bathroom facilities. The proposal was to convert one of the two bedrooms to a bathroom 'to enable the building to be used during the picking season'. The application also stated that 'There are no external works proposed, except installation of the septic tank'.
   • The Council responded by letter on 14 August 2002, indicating that:
     • if there are no external works to the quarters, no permit is required for buildings and works;
     • if no kitchen sink or food preparation facilities are provided, no permit is required as the building will not meet the definition of a 'dwelling';
     • 'if the use is for temporary, seasonal workers accommodation, then no permit will be required for the use as it has existing use rights'; and
     • if another use is proposed, the description of the way in which the premises is to be used is required - otherwise a request should be made to withdraw the application.
   • On 3 September 2002, BW&A building surveyors wrote to the Council withdrawing the planning permit application, advising that 'The structure is existing and the works are internal. The building is to be for seasonal workers accommodation.' On 12 September 2002, the Council confirmed the withdrawal of the planning permit application.
   • On 13 August 2002, MA & E Donmez had obtained a building approval for the same internal alterations to the Pickers' Hut. The septic tank installation was approved on 24 September 2002. BW&A building surveyors issued a final inspection certificate for the works on 22 July 2005.
4. As part of Mr Murray's evidence, he exhibits the statements of a number of backpackers from overseas who, apart from complaining about their alleged exploitation by Mr Donmez, give some insight into the nature of the use of the Compound. In the absence of any material to the contrary, I agree with Mr Murray's summation of the business being conducted by Mr Donmez at the Compound as comprising a labour hire and accommodation business with the following key elements:
   • Mr Donmez advertises fruit picking opportunities in Mildura, including on various internet sites such as 'Gumtree', and arranges to meet clients upon their arrival in Mildura.
   • Mr Donmez requires payment of money upfront from clients, often by taking them to an ATM en route to the Compound. Typically, the payment involves up to $600, $300 of which is a 'job finder's fee', and $300 of which is a 'bond' for accommodation at the Compound. Mr Donmez typically requires a contract to be entered into, and takes copies of identification documents.
   • The clients are accommodated at the Compound, or occasionally at another site in Mildura. Typically, about 25 to 30 clients may be accommodated at the Compound at any one time, occasionally more.
   • Mr Donmez arranges work for the clients on farms in the region, and arranges for the clients to be driven to those farms. The work does not always involve fruit picking and, in some cases, clients assist Mr Donmez with his business. In many instances, the work is piecemeal or sporadic, and the clients may or may not receive full payment for the work they complete.
   • The labour hire and accommodation business appears to operate for most of the year, rather than just during the fruit picking season.
5. There is no clear evidence before the Tribunal as to when the labour hire and accommodation business commenced. The Compound was certainly not being used for this broader purpose in 2002. The business may have operated at the Compound from as early as 2005, when the Pickers' Hut was extended and other facilities were introduced over the next few years. The business was certainly in operation at the Compound in and after 2010 with more significant extensions to the Pickers' Hut, the clear use of the small shed as a bunkhouse, the erection of the shower block, and the introduction of extra caravans into the Compound.
6. It was also in 2010 that the Council appears to have first formally written to Mr Donmez giving him clear notice that the use of the Compound for the purpose of accommodation associated with the labour hire business (or more broadly) was unlawful, and should cease. There are further letters exhibited in the evidence, along similar lines, in 2012 and 2013. The Zindilis letter also refers to a Council complaint about the use as early as 2005, although the Council has not given any direct evidence about that.
7. I note for the record that Mr Donmez indicated, as part of his adjournment application, that he had not used the Compound for accommodation during the past year. Whether the use has stopped, and when, or whether there is simply a seasonal pause in the use, is unknown.

Consideration of Issues - 'Use' of the Compound

1. I will deal first with the issue of the use of the Compound for planning purposes.
2. The Compound is on land within the Farming Zone under the Mildura Planning Scheme. Pursuant to clause 35.07-1 of the planning scheme:
   • Accommodation in the form of a dwelling, bed-and-breakfast or dependent person's unit is a Section 1 use for which no permit is required, subject to conditions - including a condition that a dwelling must be the only dwelling on the lot.
   • Accommodation (other than bed-and-breakfast, camping and Caravan Park, dependent person's unit, dwelling, group accommodation, host farm and residential hotel) is a Section 3 use which is prohibited.
   • Accommodation in the form of a camping and caravan park, group accommodation, host farm or residential hotel, or an innominate form of accommodation not in Sections 1 or 3, is a Section 2 use for which a permit is required.
3. As I have indicated, the Compound forms part of a larger lot, and the larger lot owned by Mehmet and Elif Donmez already contains a dwelling. Moreover, based on the Council evidence, and by reference to the defined land-use terms in the planning scheme, the accommodation being provided by Mr Donmez is not a dwelling (in the sense of being a residence), nor is it a bed-and-breakfast or dependent person's unit.
4. Furthermore, based on the Council evidence, no permit has ever been sought or granted for the accommodation being provided by Mr Donmez.
5. Accordingly, without yet characterising the current use to see where it might fall within Sections 2 or 3 of the table of uses in clause 35.07-1, it is clear that the current use of the Compound is not a Section 1 use exempt from a permit requirement in the Farming Zone, nor is it a use that has ever been authorised through the grant of a permit.
6. It therefore follows that the form of accommodation being provided by Mr Donmez at the Compound does not comply with the current planning scheme. The use is thus unlawful unless protected by any existing use rights established pursuant to clause 63 of the Mildura Planning Scheme, and protected by s 6 of the Planning and Environment Act 1987.
7. Ordinarily, it would be sufficient for the Council to prove on the balance of probabilities no more than what I have set out above. If a person asserts existing use rights as a defence or 'shield' to a claim of unlawful use, that person bears the persuasive burden of proving those rights. Here, however, the matter is a little more complicated. Mr Donmez has chosen not to provide any information in this proceeding, and the Council has chosen not to proceed by way of direct enforcement action. The Council seeks a declaration that no existing use rights are established for the current use of the Compound and thus bears some responsibility for establishing the basis for any positive declaration that it seeks in that regard.
8. Having said that, Mr Donmez is the person best placed to shed light on some of the 'missing' information about the use and development of the land over the past few years; in particular in relation to existing use rights. For reasons set out elsewhere in this decision, there is now an opportunity for further submissions from the parties. If, despite the opportunity to make a further submission, Mr Donmez still chooses not to provide relevant information or to participate meaningfully in the proceeding, I may be entitled as a matter of evidence to form an adverse inference on some relevant issues.
9. I do not propose in this interim decision to set out all of the principles that apply to existing use rights. The Council referred me to my own decision in Wellington v Surf Coast SC (Red Dot) [2011] VCAT 2317 which sets out many of the principles applicable to the characterisation of the use and the operation of clause 63 of VPP-based planning schemes, and I adopt those principles insofar as they are relevant in this proceeding.
10. As will be noted from the background material above, even the Council in 2002 expressed a view that the Compound had existing use rights for 'seasonal worker accommodation'. The Zindilis letter in 2014 also asserts existing use rights for 'accommodation for workers' from around 1989, but concedes that this is a more limited form of use (albeit undefined) than defined land-use terms such as 'group accommodation' or a 'camping and caravan park'.
11. The Council contended that it was not bound by the opinion of a Council officer in 2002 about the characterisation of any existing use rights. That may be so, but the 2002 opinion forms part of the overall evidence before me, and at least creates an inference that some form of existing use rights then existed. In the face of that 2002 opinion, an examination is warranted to determine the character and extent of any existing use rights, and whether the use for which any existing use right is established has continued for the same purpose (encompassing the current use) to the present time.
12. It appears that there are three relevant possibilities arising from clause 63 that could conceivably assist Mr Donmez in establishing an existing use right:
    • a use for the purpose of 'seasonal worker accommodation' (or something similar) was lawfully established prior to the approval date of the Mildura Planning Scheme, or any relevant amendment to the planning scheme, and that use has continued to the present time for the same purpose and is sufficient to encompass the current use of the Compound; or
    • a use for the purpose of 'seasonal worker accommodation' (or something similar) has been established under the 15-year rule in clause 63.11, whether or not it has been lawful over that period, and that use has continued to the present time for the same purpose and is sufficient to encompass the current use of the Compound; or
    • a different purpose of use, more specifically related to the labour hire and accommodation business, or a broader form of accommodation such as a camping and caravan park, has become established at the Compound under the 15-year rule, whether or not it has been lawful over that period.
13. No other possibilities realistically exist on the material presently before me. Accordingly, if none of these three possibilities apply, the use of the Compound does not have existing use rights, and would be unlawful. I also note that, from the Zindilis letter, it appears that Mr Donmez (at least in 2014) sought to rely only upon the second of the possibilities outlined above.
14. The third possibility (i.e. a different, broader use for accommodation in connection with the labour hire business or otherwise) can be quickly discounted. It is clear on the evidence that such a broader use was not in existence as at 2002, given the then state of the Pickers' Hut and other facilities, and the nature of the planning and building approvals then sought. Such a use, even if established in or immediately after 2002, would therefore fall short of the 15 years necessary to establish an existing use right under clause 63.11 even if the use was unlawful. Moreover, within the last 15 years, there have clearly been several written directions by the Council to cease the use, which would negate the establishment of an existing use right under clause 63.11.
15. The first and second possibilities (i.e. relying on an existing use right for 'seasonal worker accommodation') are more problematic. The Council has attempted to 'join the dots' from the available evidence to support the declarations it seeks. However, in some other respects, the Council has simply presented the available evidence to the Tribunal and asked it to sort out the matter from a number of alternative scenarios, without strongly advocating for a particular outcome. In the declaration proceeding, that is also problematic. There are also some gaps in the Council material, particularly in relation to relevant planning scheme history.
16. Before finally determining the matter, I therefore seek further submissions or further material on the following matters:
    • Is there any further material that might be sourced to better determine when the Pickers' Hut was built, and how it was initially used (if at all) in the period prior to 2002? Has the Council attempted to source other material - e.g. anecdotal information from other landowners in the vicinity? Or information from those involved in the 2002 planning and building applications (both Council and applicant) if they can still be traced?
    • Given the reference to some communications between the Council and the town planner Roy Costa (on behalf of Mr Donmez) in or around May 2010 in relation to potential existing use rights, is there anything relevant in those communications? Is it possible for this correspondence to be produced?
    • Assuming a possible existing use right for 'seasonal worker accommodation', what does the Council contend is contemplated by such a use, or what is entailed in the purpose of such a use (accepting a liberal interpretation for the purpose of existing use rights). Even in the absence of any specific information about the accommodation at the Compound, which would of course be preferable, is there any further contextual material or anecdotal evidence that sheds light on how seasonal worker accommodation was commonly provided in the Mildura region in the late 1990s and early 2000s? Was it only for a defined fruit picking season, or more generally? Did seasonal workers commonly work only on the land where they were accommodated, or are there examples where workers were accommodated at a centralised base on a farm or in the township?
    • Related to the above, for planning purposes and existing use rights, why does it matter if seasonal workers are accommodated at one site, and work at another? Is it important here that the 'seasonal worker accommodation' that might have existed prior to 2002 was confined to sleeping quarters, and that the current accommodation is more self-contained with the inclusion of kitchen and bathroom facilities? If so, why?
    • To the extent the Council seeks a positive declaration to negate the first possibility (i.e. to broadly satisfy the Tribunal that a use for 'seasonal worker accommodation' has never been lawfully established), the Council has not included in its evidence or submissions any planning scheme provisions other than the current Farming Zone controls, which I understand have been in place only since about 2013. To support this declaration, the Council would need to show a history of relevant planning scheme provisions applying to the use of the land immediately prior to and since the approval of the Mildura Planning Scheme in 1999. To the extent the Zindilis letter asserts (without evidence), that a use for seasonal worker accommodation may have been established as early as 1989, it would be useful if the Council evidence covered that earlier period also. If it can be demonstrated that, under the planning scheme provisions applying to the land since 1989, the use of the land for 'seasonal worker accommodation' (or something similar) has never been 'as of right', and no permit has ever been obtained, then the Council would be entitled to the positive declaration that it seeks.
17. It will be apparent from the earlier discussion that both of the first and second possibilities that I have outlined above (i.e. relying on a pre-existing use for 'seasonal worker accommodation') have a common second limb, whereby the pre-existing use must have continued to the present time for the same purpose and be sufficient to encompass the current use of the Compound. The last dot point above relates to that issue. Obviously, if the Council has or can adduce sufficient evidence to show that this second limb has not been met, then the first and second possibilities can be discounted on this basis alone, without the need for a more detailed examination of the other issues.

Consideration of Issues - 'Buildings and Works' within the Compound

1. I turn separately to the issue of the buildings and works that have been constructed within the Compound without a planning permit.
2. Within the Farming Zone under the Mildura Planning Scheme, and pursuant to clause 35.07-4 of the planning scheme, a planning permit is required to construct a building or to carry out works associated with a Section 2 use. There are limited exceptions not relevant here. Even if the use has some form of existing use rights, a planning permit is also required for buildings and works associated with an existing use by reference to clause 63.05 of the planning scheme.
3. It follows that, irrespective of the issue of existing use rights, any relevant buildings and works that have been constructed at the Compound without a planning permit, and are not otherwise exempt, are unlawful.
4. The Council's section 141 statement certifies that the Council has no records of any planning permit allowing the use or development of the land or any part of the land. This therefore includes buildings and works in the Compound.
5. As I have previously indicated, the lawfulness of the large freestanding shed erected in May 2000 is not in question. Although it does not have a planning permit, it is a non-habitable building constructed in association with the as-of-right farming use of the land, and did not apparently require a planning permit under the planning controls then in force.
6. The Council does not seek a declaration in relation to the caravans, which are moveable structures capable of being dealt with under other legislation rather than being buildings and works for planning purposes. Again, it is the use of the caravans that is arguably unlawful.
7. The position is not so clear in relation to the other structures. There are also again some gaps in the Council's material. Before finally determining the matter, I therefore seek further submissions or further material on the following matters:
   • Similarly to the issue of the use, the Council has not included in its evidence or submissions any planning scheme provisions other than the current Farming Zone controls, which I understand have been in place only since about 2013. The buildings and works that the Council seeks to have declared as unlawful are, in the main, buildings and works erected or extended prior to 2013 under different planning controls. It is conceivable that some existing buildings and works that would require a permit if now constructed under the current Farming Zone controls, may not have required a planning permit when they were actually directed or extended. To support the declaration it seeks, the Council would need to show a history of relevant planning scheme provisions applying to the development of the Compound at the likely time each relevant building or works was erected or extended, and to demonstrate a relevant permit requirement that then existed but was not complied with. For example, what were the relevant planning controls for buildings and works when the Pickers' Hut was extended in 2005, or when the Pickers' Hut was substantially extended with further external works in or around 2010. The Council material does not yet provide that information.
   • More specifically, in relation to the allegation in the Zindilis letter that the Pickers' Hut was constructed off-site and lowered onto pads which sit on top of the ground, and is therefore a temporary or moveable structure exempt from the requirement for planning permit, what is the Council's specific response to that claim?
   • The situation with the small shed is somewhat in doubt. The small shed is now clearly used as a bunkhouse, and would presumably have required a planning permit for its construction if erected in association with that use. However, there is no clear evidence before me to establish that this shed was indeed erected in the period from 2007 to 2010 for a Section 2 use such as accommodation. It may be that the small shed was originally erected as a non-habitable farm building in similar fashion to the large shed and later 'evolved' into its use for accommodation. In this latter event, the small shed itself may have been lawfully constructed as a building, but its current use may be unlawful. The Council has not dealt with this likely scenario, and will need to provide additional material if it wishes to establish that the small shed itself comprises unlawful buildings and works.

1. I appreciate that there will be some difficulty for the Council in attempting to answer some of these questions for both development and use. This is particularly the case for questions about possible existing use rights, in circumstances where the Council does not acknowledge any such rights and the onus of establishing existing use rights primarily rests with Mr Donmez. As I have indicated, Mr Donmez also has the opportunity to address these issues, and potentially chooses not to address these issues at his peril. The purpose of asking these questions is ideally to establish with more precision what existing use rights (if any) have been established, and whether any such rights have continued to the present time. However, to the extent that this may not be possible, the questions also provide an attempt to at least get the best possible information 'on the table' to enable the Tribunal to consider what declarations can or should be made, including (if necessary) by the drawing of reasonable inferences from the limited material that is available.
2. My orders provide relevant time limits for the provision of further information, following which a final decision will be made on the Council's application for declarations.