RESPONSIBLE AUTHORITY: Mornington Peninsula Shire Council

BEFORE : Judge Michael Higgins, Vice President and Russell Byard, Senior Member

Medium Neutral Citation [2003] VCAT 772

Lots 11 & 12 on Plan of Subdivision No. 116039 being the land in Certificate of Title 9115 Folio 603 and Volume 9115 Folio 604 respectively.

This application for an enforcement order is dismissed and any question of costs in relation to it is reserved.

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Mr John Rantino, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority. He presented two written submissions in addition to oral argument and called three witnesses namely Roy Kingsland Boyce, Kerry Anne McKendrick and Katherine Jean Baillieu.

Mr Michael Wright QC, barrister, appeared with Mr Jason Pizer, barrister, on the instructions of the firm of Minter Ellison, solicitors for the Respondents. In addition to presenting written and oral submissions they called three witnesses namely John Graham Eacott, pilot, their client Lindsay Edward Fox and Brett Quarrell, helicopter pilot.

Each witness gave oral evidence and adopted a written statement of evidence. Various other plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

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

Use of land as a helipad without a planning permit allegedly required under the Planning Scheme.

Residential 1 Zone and subject to a Design and Development Overlay, an Environmental Significance Overlay, a Vegetation Protection Overlay and a Heritage Overlay under the Mornington Peninsula Planning Scheme.

At the beginning of the hearing Mr Rantino applied for, and obtained by consent, amendments to make clear that the application relates Lot 11, as well as Lot 12, on Plan of Subdivision 116039 being the land in Certificate of Title Volume 9115 Folio 603 and that the Respondents Lindsay Edward Fox and Paula Fox are the owners and occupiers of the said Lot 11.

1. This case concerns the landing and taking off of helicopters on the residential property of Mr & Mrs Fox known as 7 Marylands Avenue, Portsea. This property is a substantial one comprising two allotments namely Lots 11 and 12 on Plan of Subdivision No. 116039. One of them is owned by Mr & Mrs Fox and the other by the respondent company, of which they are directors. The land has road access from a court bowl at the end of Marylands Avenue in Portsea. It also has a frontage to the foreshore of Port Phillip Bay. Each allotment contains a portion of foreshore at approximately beach level behind which there is a significant escarpment up to relatively flat areas above the cliff where the principal residence is located. Lot 11 was purchased by Mr Fox and his wife in the late 1970s and Lot 12 was effectively added to it when purchased by the respondent company in 1995.

2. It is common ground that, during and since the summer of 2000-2001 Mr Fox, alone or with his wife or other friends and associates has travelled to and from the land by helicopter. In the course of doing so the helicopter has landed and taken off from the land.

3. The sworn evidence of Mr Fox, partly corroborated by other evidence, indicates that this activity has been going on for a period in the order of 20 years, dating back to the early 1980s. However, during the 1980s, according to his evidence, such trips occurred 10 to 12 times per year, or approximately monthly. To this he added a suggestion that this was probably a conservative figure.

4. The two helicopter pilots called on behalf of the respondents were able to give more detailed evidence in relation to flying Mr Fox and others to and from the land over more recent years leading up to the present time. This evidence, and that of Mr Fox, indicate more frequent helicopter activity over recent years, particularly during the time when Mr Fox was involved in negotiations relating to a possible take over of the failing Ansett airlines in which he was involved.

5. His evidence as to helicopter landings and takeoffs during the 1980s is really uncontradicted. The evidence of the witnesses called on behalf of the Responsible Authority, in general terms, is that they became aware of helicopter landings and takeoffs on and from the Fox land over the last 3 or 4 years, and particularly during the summer periods of 2000-2001 and 2001-2002.

6. Helicopter commuting to and from this locality, and the wider Mornington Peninsula area, is more common than in most urban areas or, for that matter, other parts of Victoria. The daily commuting of the late Sir Reginald Ansett from another location on the Mornington Peninsula was notorious. The time saving for those able to afford this form of transport is considerable. Mr Fox said he was able to travel from Melbourne to this property in approximately 12 minutes where the road journey would take 1½ to 2 hours. Mr Fox is not the only one to use helicopters in this immediate locality. The evidence, including evidence relying on log records kept by some witnesses, indicate considerable helicopter comings and goings to a nearby property known as Ilyuka. It was suggested that someone associated with that property acquired a new helicopter in or about the summer of 2001-2002 and then indulged in frequent joyride flights from the property.

7. The Responsible Authority has received complaints about helicopter activities, particularly over the second last and third last summertime periods. There have not been complaints in relation to the most recent summer.

8. The complaints and concerns of nearby residents, so far as the evidence called from witnesses before us is concerned, centred largely on questions of the safety aspects of having helicopters alighting and taking off from the property, although the noise of helicopters doing so is also referred to. Such evidence as we have on safety questions indicates that helicopter travel is safer than car travel, although witnesses may be quite genuine in claiming to be more apprehensive of helicopters.

9. It was put to us that people subjected to nuisances, such as noise nuisances, can be made sensitive to them by repeated exposure. It is an experience of life, and of town planning and local government nuisance litigation, that there is some justification for this suggestion. People may tolerate, or hardly notice, a bad noise or smell that occurs occasionally who will nevertheless become very upset by such conditions if they are repeated frequently, and once having become sensitive by repeated frequent exposure, it takes a long time for sensitivity to be lost, and feelings of annoyance and distress are readily occasioned by only infrequent exposure in the meantime.

10. The witnesses called on behalf of the Responsible Authority gave evidence of their awareness of helicopter flights to and from the Fox property over the last 3 or 4 years, but claim not to recall them during the previous two decades. We are invited, by Mr Rantino on behalf the Responsible Authority, to rely on that evidence and to infer from it that such flights, with concomitant takeoffs and landings as claimed by Mr Fox during the 1980s and 1990s, did not take place.

11. We are unable to draw that inference in the face of the clear sworn evidence given by Mr Fox himself. The witnesses called by the Responsible Authority are not really in a position to contradict him. The flights of 10 to 12 journeys a year are infrequent enough that they might generally occur when the occupiers of nearby houses are not present, particularly as they are largely holiday houses. Mr Fox's evidence is that the helicopter trips did not follow a regular pattern and could occur at non-holiday and non-weekend periods. Also, they did not necessarily occur every month. One month might have two visits and another have none.

12. Even if the occupiers of nearby premises did notice a helicopter at a particular time, its impact on their consciousness might be transitory and the event not particularly noticed, or at any rate remembered 10 or 15 years later, unless it was part of a pattern of trips frequent enough to become a problem or a nuisance. On the balance of probabilities, which is the relevant standard of proof in this instance, we accept the evidence of Mr Fox in relation to helicopter takeoffs and landings on the property at a rate in the order of 10 to 12 per year, dating from early in the 1980s and continuing until the frequency of flights was intensified in more recent years as mentioned above.

13. The Responsible Authority claims that the landing and taking off of helicopters on and from the land amounts to a contravention of the planning laws. It has therefore applied for an enforcement order to restrain the activity and achieve compliance with the planning scheme.

14. The basis for the allegation that a planning permit is required is Clause 52.15 of the Mornington Peninsula Planning Scheme. That clause contains two paragraphs, indeed only two sentences. The first states the purpose of the clause as being:-

To provide an opportunity to consider the effect of a heliport or helipad on the amenity of surrounding areas.

15. The other provision is headed "Permit requirement" and reads:-

A permit is required to use or develop any land for a heliport or helipad even if it is ancillary to another use on the land.

16. Neither "heliport" nor "helipad" are defined in the planning scheme. However, it is clear that the activities complained of in relation to the Fox land are not use of it as a heliport. A heliport is a variety of transport terminal which is defined as land used to assemble and distribute goods or passengers and includes facilities to park and manoeuvre vehicles. The other varieties of transport terminal included within the concept include airport, bus terminal, railway station, road freight terminal and wharf. These imply public access and use of a sort that is not available in relation to this private residential property belonging to Mr & Mrs Fox.

17. However "helipad" for the purposes of the planning scheme, is obviously something different to a heliport. It probably means no more than a place where a helicopter can land and does land on other than an ad hoc basis. The use might be regular, intermittent, or perhaps quite occasional, but it would need to be more than an isolated or fortuitous landing or takeoff. A helicopter making an emergency landing on one occasion in a park or a paddock because of engine trouble would not, in our view, render the landing site of a helipad for the purposes of the planning scheme. Similarly, a landing over on Oberon Beach at Wilson Promontory or on some convenient spot on Mt Buffalo to evacuate an injured hiker, would not serve. However, the use of a large lawn of a residential property for helicopter commuting would probably be sufficient.

18. Mr Wright submitted that such a spot, without any temporary or permanent works or facilities is not sufficient to constitute a helipad. He wishes to distinguish between a helipad and a helicopter landing place, although there is nothing in the planning scheme to justify his distinction. He has in mind markers, windsocks, dust prevention arrangements and the like. Although we doubt that he is correct in this argument, it is not necessary, having regard to our findings of fact, to determine that point for the purpose of resolving this case. We can, for present purposes, assume that a mere lawn or suitable flat area on a residential property can be a helipad without having to make a final decision on the question.

19. Likewise, Mr Wright argues that the evidence indicates that 3, 4, or perhaps even 6 different spots on the land have been used at various times as the set down and takeoff points. The evidence indicates that, at least during some periods, 90 or 95 percent of takeoffs and landings have been on a particular location, but the evidence also indicates that several others have been used. Mr Wright suggests that this weighs against any idea that the land is used as a helipad.

20. Again we doubt that there is substance in this point. The land is to be considered as a single planning unit and it is probably not material whether more than one lawn or open area are utilised on this substantial property that apparently offers a selection of landing sites. In any event, if that is not true, the alternative is that there are several helipads rather than just one.

21. Nevertheless, as with the absence of facilities point, we will assume, for the purposes of this case, and without making a final decision on the point, that Mr Wright's submission is not correct in this regard, and there is and has been a helipad or several helipads on this land for some time.

22. There is another matter that we do not need to decide but which we will mention. There was, in the course of the hearing, some debate as to the proper interpretation of the permit requirement provision in Clause 52.15 including the meaning of the expression use of land as a helipad and as to whether a helipad can, or should in the circumstances of this case, be regarded as an ancillary activity forming part of the use of the land as a dwelling. This discussion related back to Clause 64 of the planning scheme which might, at least on a superficial reading, imply that there could be an "ancillary use" that is not really better referred to as an "ancillary activity", and which is distinct from the concept of a use of land in planning terms for which planning permission is required. Although there appeared to be common ground between Mr Rantino and Mr Wright in relation to this aspect it also appeared to be common ground that ignored the development of common law concepts in relation to this topic developed through the cases up until the introduction of the forerunner to Clause 64 of the current planning scheme namely Clause 5AAA introduced into the Melbourne Metropolitan Planning Scheme on the 24 September 1986 by Amendment 415 thereto. Clause 5AAA sought to encapsulate the common law as developed to that point. It referred to ancillary activities, being subsidiary parts of a dominant or primary use and made it clear that use permission was needed not for the ancillary activity, but only for the primary or dominant use of which it formed part. A second planning permission for land use could be necessary, but only where the land was used for two distinct purposes where neither was ancillary to the other.

23. Clause 5AAA was subsequently slightly modified by Amendment RL12 to the Metropolitan Regional Section of the Melbourne Metropolitan Planning Schemes on the 8 June 1988. The present wording, as it appears in Clause 64, of the Mornington Peninsula Planning Scheme dates from the 31 October 1989 in Clause 6-4 of the State Section and Clause 12 of the Regional Section of so called "day 2" planning schemes that came into operation on that day. These "day 2" planning schemes were the first introduction of Plain English drafting into Victorian planning schemes. They were said, and intended to be policy neutral re-writings of the planning schemes in force immediately before 31 October 1989. Clause 6-4 and 12 were in exactly the same terms as Clause 64, although the heading in each case is "Ancillary activities". With the current Victorian Planning Provisions based planning schemes the reference to ancillary activities in the heading has been lost. The heading to Clause 64 now reads "LAND USED FOR MORE THAN ONE USE". However, as already noted, the wording of the provision remains in exactly the same terms.

24. The submissions in relation to these provisions on behalf of the representatives of the parties did not deal with the relevant portions of Mollica v Shire of Bulla [1992] 9 AATR 157 and the decision of Ashley J of the Supreme Court of Victoria in Cascone v Whittlesea City Council [1993] 11 AATR 175 which contains discussion of these matters. The latter case is at least authority for the proposition that if something is an ancillary use or ancillary activity in relation to a principal use, then in planning terms, it is not a separate use, but part of the dominant one. In those circumstances it does not require a "use" planning permit if the dominant use is allowed under the planning scheme, either as of right or pursuant to a valid permit. None of this means that a matter, thing or activity, that cannot be correctly categorised as a use of land for a purpose, or a development of land, cannot require planning permission if the planning scheme specifically says so.

25. Clause 52.15, is intended too, and in our view does, mean that the commencement of a helipad requires planning permission. That is so whether the helipad is a separate primary use or an ancillary activity, and that is whether or not the ancillary activity is referred to (correctly or otherwise) as an ancillary use.

26. As with other points raised, although interesting, we are able to leave this discussion on one side, for the purposes of deciding this case.

27. Mr Rantino specifically said and accepted that, to succeed with his enforcement application, he had to establish use of the land as a helipad. He eschewed the notion that the helipad might be an ancillary activity in relation to the residential use of a dwelling. Whatever the correct analysis may be, he was still ultimately faced with an existing use defence in relation to helicopter landings and takings off on and from the Fox property. If such takings off and landings are an ancillary activity or an ancillary use (if that is the correct concept) in relation to the dominant or the real and substantial use of this land as a dwelling, then he is in difficulties in relation to that defence if the dominant or real and substantial use (including its ancillary activities or uses relating to helicopters) started prior to the introduction of Clause 52.15, or its forerunner, into the planning scheme. Likewise, if helipad is to be regarded as a second and separate primary use that must, on its own account, comply with the planning scheme, then the Fox helicopter activities will only fall foul of Clause 52.15 if they commenced after its introduction, or the introduction of its forerunner in the planning scheme.

28. The Respondents in this case rely on an existing use defence pursuant to s 6(3) and (4) PE Act and Clause 63 of the planning scheme.

29. Pursuant to those provisions the use of land for a purpose which has become prohibited or which now requires a planning permit, has the benefit of an exception whereby it can be continued, subject to certain provisos, if it was lawfully commenced prior to the commencement of the restriction now imposed by the planning scheme.

30. There is now a further exception under Clause 63.11, where even an unlawful use, commenced unlawfully, but which has gone on for a continuous period of 15 years, can have the benefit of continuing use rights. However, in this case, the Respondents do not need to rely upon an unlawful use for 15 years under Clause 63.11 because they have established lawful commencement well before the present Clause 52.15 or its forerunner imposed planning controls and the need of a permit in relation to helipads. It is common ground that the first forerunner of Clause 52.15 came into operation in 1989, a number of years, on our finding, after the helicopter takeoffs and landings commenced on the Fox land.

31. It is true, as Mr Rantino said, that the onus of establishing this existing use right defence is on the party claiming its existence. The standard of proof is on the balance of probabilities. On our finding, the Respondents have met that standard and established the defence.

32. In the absence of a provision like Clause 52.15 the coming and going of a helicopter for commuting purposes to and from a residential property by residents thereof would be an ancillary part of their use of the property as a dwelling, just as would be the case in relation to the coming and going of motor car. It would be similar to the playing of tennis on a domestic tennis court or swimming in a domestic swimming pool or any other hobby or activity associated with the normal use of a dwelling. The activity does not have to be essential to a dwelling, just as a swimming pool is not an essential of a dwelling. Having commenced use of a dwelling long before any helicopter control, it is entitled to continue, subject to the provisos in the existing use provisions. It is not suggested, in this case, that such provisos have been contravened. Whichever way the matter is looked at, whether as an ancillary of a dwelling, or as a separate use, the Respondents have the protection of the existing use provisions.

33. It is not to the point that the activity may be troublesome, or even a nuisance. Clause 52.15 has clearly been introduced into the planning scheme, and other planning schemes, because of concern about amenity impacts on surrounding areas, but the control only operates prospectively, and is subject to the existing use rights that we have found to be established in this case.

34. If the amenity affects amount to a nuisance, whether a private nuisance or a public nuisance at common law, or a statutory nuisance (for example under the Health Act) there may be legal remedies that the neighbours, or the Council of the Shire of Mornington Peninsula might pursue in court, but they are beside the point so far as the planning laws are concerned.

35. It is true, of course, that the second lot was acquired after Clause 52.15 came into force. It might be thought that there is a technical point to be made as to whether the helipad can operate on Lot 12, as distinct from Lot 11. There is no point of substance if the helicopter can still come and go to and from Lot 11 under the existing use rights. In any event, the whole land used as a dwelling by Mr & Mrs Fox is now constituted by Lots 11 and 12, and the "planning unit" in relation to that use, and for planning purposes generally, is now probably constituted by the two lots considered together. A planning unit is the area of land used for a particular purpose in relation to which planning permission might be required. It is frequently co-extensive with the title boundaries, but it is not necessarily so constrained. A planning unit may be part of an allotment, or a number of allotments, or a portion of several allotments. In any event, Mr Rantino did not raise or seek to rely on any such distinction and the hearing proceeded on the basis that it was not relevant.

36. For these reasons we find the defence of existing use rights to be established and the enforcement order application is consequently dismissed. Costs in relation to these proceedings are reserved.

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