Matthew Kerr, Anthony Voglis, Anne Johns, Richard Kerr Architecture, Ausvest Holdings Pty Ltd, Chris Thornton Builder Pty Ltd, Vikki & Paul Southey

MEDIUM NEUTRAL CITATION: [2003] VCAT 741

In relation to the question of law raised as to whether an office is a prohibited use on this land, my answer is that it is not prohibited, and may be lawful provided that planning permission is obtained under the existing use provisions in Clauses 63.08 and 63.10 of the Stonnington Planning Scheme.

Mr Dominic Scally, solicitor of the firm of Best Hooper, solicitors, appeared for the applicant, Gilbert Simons. He presented written and oral submissions and filed two affidavits, one of Michael Warshall sworn 11 June 2003 and one of Peter Aldred sworn 6 June 2003.

Mr Ian Gibb, town planner of Hansen Partnership Pty Ltd, appeared for the Respondent/Objector, Ausvest Holdings Pty Ltd. He made oral submission.

Ms Gillian Menegas, senior town planner of the City of Stonnington, appeared for the Responsible Authority. She presented written and oral submissions.

Application under s 79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Three storeyed building over basement car parking with a shop at ground floor and offices on the upper floors.

Business 2 Zone and Residential 1 Zone and subject to an Environmental Audit Overlay under the Stonnington Planning Scheme.

Mr Gibb, on behalf of his client, indicated that his client did not wish to contest matters in relation to the legal question to be considered at this preliminary hearing. However, his client does wish to be heard in relation to the merits of the case. His client was an objector but was one day late in providing its statement of grounds. That lateness does not necessarily prevent his client being heard, but rather requires the Tribunal to hear the Responsible Authority and the applicant on the question of whether the objector should be heard. Both those representatives indicated consent to Mr Gibb's client being heard.

1. This preliminary hearing was called to consider the question of law raised by the Responsible Authority as to whether the use of the land as an office is prohibited under the planning scheme.

2. The situation is that this piece of land is partly in a Business 2 Zone and partly in a Residential 1 Zone. The frontage of the land is to Malvern Road, and the front two-thirds is in the Business 2 Zone. There is no problem about offices or an office in that zone. However, the rear one-third is in a Residential 1 Zone. Office is a Section 3 use, so far as the table of uses in the relevant zone controls is concerned. As such, office is prohibited.

3. The provisions that previously applied where a piece of land was in more than one zone does not appear in the new planning schemes based on the Victorian Planning Provisions. Therefore, on the face of it, this proposal to redevelop the site and use the first and second floors as offices, is prohibited under the planning scheme.

4. It is prohibited, so far as the zone control provisions for the Residential 1 Zone are concerned. However, Clause 63 of the planning scheme contains the provisions in relation to existing use rights. The applicant claims that there are existing use rights in relation to this land. In fact, it is common ground between the parties that such existing use rights are in existence. The previous use of the land, for some 20 years or more, has been as a photographics studio or photographic processing place considered to be light industry under the previously applicable planning schemes. Indeed, the land was apparently zoned Light Industrial under a previous scheme. The photographic industrial activity carried on did have some ancillary aspects. There were some offices associated with the business, and a retail outlet at the street frontage. However, these were ancillaries of the principal industrial use.

5. The question raised involves a consideration of the existing use provisions in Clause 63 of the planning scheme. In this connection reference is made to Clauses 63.08 and 63.10.

6. 63.08 provides that if land is used for use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use prohibited Section 3 which does not comply with the scheme although this power of granting such a permit is subject to the Responsible Authority being satisfied that the proposed alternative use will be less detrimental to the amenity of the locality.

7. The applicant seeks a permit under this clause to use the land as an office, in spite of office being a Section 3 use in relation to the Residential 1 Zone, on the basis that the Responsible Authority should be satisfied that office is less detrimental the amenity of the locality than the previous light industrial use and that, having the power to grant such a permit, it should proceed to do so on the merits.

8. This is a failure review under s 79 PE Act. As such the decision now falls to the Tribunal, and it must exercise the discretions that would otherwise have been the responsibility of the Responsible Authority, including the question of whether to be satisfied that office is less detrimental than the previous light industrial use.

9. This question as to whether the proposed prohibited use is less detrimental than the one for which the existing use rights subsist, is not a question of law. In my opinion, it is a question of fact to be decided on the facts of the particular case. It will be the responsibility of the Tribunal, on the full merits hearing of this case, to consider and decide whether it is satisfied on this point, and if so whether it should then proceed to grant the permission sought under Clause 63.08.

10. As to the legal question of whether office is prohibited, so far as Clause 63.08 is concerned, the answer is that it is not prohibited. A permit for office can be granted in the circumstances of this case provided the Responsible Authority (or in this case the Tribunal) is satisfied on the evidence that the proposed use as office is less detrimental to the amenity of the locality than the light industrial use for which existing use rights exist. That is in spite of the fact that, but for those existing use rights, use of the land as office would be prohibited under the Residential 1 Zone control provisions.

11. The second aspect of the case refers to Clause 63.10 of the planning scheme, also within the existing use provisions. This sub-clause provides that, if at least 50% of the gross floor area of a building or at least 50% of the area of any works, are damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with the scheme unless a permit is granted to continue the use or to construct or carry out buildings or works.

12. I am satisfied that for land to be used in conformity with the scheme includes the notion that it will be used in conformity with the relevant zone control provisions. In other words, if the existing use right is lost by the destruction of more than 50% of the gross floor area of the building, then the land must be used in conformity with the scheme, including the zone controls. Even if this land was currently being used for an office, in the event of at least 50% of the gross floor area of the building was destroyed, the use would have to stop (because office is prohibited in the Residential 1 Zone) unless a permit for the continuation of the use was granted under Clause 63.10.

13. This ability to grant a permit under Clause 63.10 is a concession compared with previous equivalent provisions in earlier planning schemes. The destruction or loss of 50% of the building or works to the extent that the use could not continue was originally a basis for saying that the non-conforming use must now come to an end and relocate in a place where it would be lawful. It was a situation which would see the use of the land having to come into conformity with the planning scheme. This has been softened to the extent that a permit may now be granted for continuance of the use, even when 50% of the floor area or works has been lost. That does not imply that such a permit will necessarily be granted. It might still be thought that the stage has been reached for the use of the land to come into conformity with the planning scheme including its zoning, but there is also the possibility, after a consideration of the merits, of such a permit being granted.

14. The question of the damage or destruction of at least 50% of the gross floor area arises because it is proposed, in this case, to demolish the existing building and construct a new one in its place. Demolition involves the destruction, not merely of more than 50% of the gross floor area of the building, but of the entire building.

15. It was suggested that Clause 63.10 does not apply because the word "damaged" and the word "destroyed" connote accidental damage or destruction, or at least damage or destruction by some means other than deliberate demolition.

16. I am satisfied that this submission is incorrect and I have decided to that effect in previous cases, although there may well have been before the coming into operation of the new Victorian Planning Provisions based planning schemes. Mr Scally submits that the draftsperson of Clause 63.10 could and should have referred to demolition specifically if that was intended to be covered. In fact, the person who drafted this provision was not drafting it afresh, but was translating it from previous terms into the so-called "plain English" drafting style. In any event I consider the plain and ordinary meaning of "destroy", "destroyed" and/or "destruction" to include destruction by demolition. Demolition is merely one way in which more than 50% of the floor area of a building may be damaged or destroyed. Furthermore, this understanding is in accordance with the purposes of and the principles underlying existing use provisions in planning schemes, including this planning scheme, and including this particular provision in this planning scheme. It recognises that it is in accordance with the purposes of the planning scheme that land uses within the various zones should ultimately be in accordance with the zone control provisions of those zones and that substantial destruction of the building and works necessary for a non-conforming use (ie an existing prohibited use) can be the appropriate occasion for change to a conforming use. So far as that is concerned, it makes no difference whether the destruction is accidental or deliberate. If the existing buildings have become so obsolete or inappropriate that their demolition is proposed, that is just as much an opportunity and indicator that the time for complying with the planning scheme has arrived, as if the destruction was by some accident.

17. However, this provision no longer means that the existing prohibited use must cease if the buildings or works are destroyed to the specified extent, but only that it must cease if no permission under Clause 63.10 can be obtained. Whether or not such a permit should be granted will depend upon the outcome of the reconsideration of whether the unlawful use should continue, such reconsideration being occasioned by the destruction of more than 50% of the floor space.

18. As with Clause 63.08, so with Clause 63.10, the use of the land as office is not prohibited provided that permission under those two provisions can be obtained. Thus, when the matter comes on for hearing on its merits, in addition to the other planning permissions required under the planning scheme, the consideration would need to be given to whether permission is to be granted under Clauses 63.08 and 63.10.

19. I have given directions for this case to be set down for a hearing of its merits.