1. For the avoidance of doubt, the existing use right for the purpose of 'a timber mill for the production of sawn timber and firewood' that is established through proof of continuous use for 15 years does not include the wood chipping operation currently being conducted on part of the land through the use of the RC1824 mobile chipper.

1. No existing use right for use of the land for the purpose of 'a timber mill for the production of sawn timber and firewood' is established on the balance of the land at 285 Barwite Road Mansfield, beyond the area known as the Front Paddock. A planning permit would be required under the Mansfield Planning Scheme to extend the use of the land for a timber mill beyond the area of the Front Paddock, or to use the land generally for the broader purpose of a 'sawmill', or to use part of the land for wood chipping. 2. The current use of the North Paddock for activities associated with the use of the Front Paddock as 'a timber mill for the production of sawn timber and firewood' is unlawful in the absence of a planning permit. 3. The current use of part of the North Paddock for wood chipping is unlawful in the absence of a planning permit. 4. The construction in or around March 2015 of a structure within the North Paddock to screen the mobile chipper is unlawful and requires a planning permit.

In proceeding P1158/2014 (the s 97Q proceeding):

1. The request to amend the certificate of compliance pursuant to s 97Q of the Planning and Environment Act 1987 is refused.
2. The application is dismissed.

1. The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 is allowed in part.
2. The enforcement order is in the form attached to this order.

1. Costs reserved. Any application for costs must be made in writing within 30 days of the date of this order; failing which each party bears its own costs.

Use and development of parts of the land for the purpose of 'a timber mill for the production of sawn timber and firewood', or for wood chipping, or for a 'sawmill' generally, without an existing use right or a planning permit, in contravention of clause 35.07 and/or clause 63 of the Mansfield Planning Scheme.

1. For the purpose of this enforcement order, the 'Front Paddock' and the 'North Paddock' are the fenced areas on the subject land so named on The Barwite Timber Mill 'Feature Survey Plan' (Plan MCS1302) prepared by Mansfield Consulting Services, Revision 2 dated 30 January 2015, a copy of which is filed in the proceeding.
2. Subject to Orders 3 and 4, by no later than 4pm on 1 December 2015, the respondents Dieter & Pamela Buchholz and Joe & Alicia Kirley must:
   • (a) cease to use any part of the subject land other than the 'Front Paddock' for the purpose of 'a timber mill for the production of sawn timber and firewood'.
   • (b) cease to use any part of the subject land for the purpose of a 'sawmill' generally (as that term is defined in the Mansfield Planning Scheme), except for the use of the Front Paddock as 'a timber mill for the production of sawn timber and firewood' in accordance with the existing use right established for that purpose.
   • (c) cease to use any part of the subject land for wood chipping, whether through use of a mobile chipper or otherwise.
   • (d) not allow any other person to undertake the use in (a), (b) or (c).
   • (e) remove from the North Paddock all timber logs, and other materials and equipment associated with the use for the purpose of 'a timber mill for the production of sawn timber and firewood', or for wood chipping.
   • (f) remove from the North Paddock the acoustic structure constructed in or around March 2015 to screen the mobile chipper when in use.
3. Order 2 does not apply to a use or development referred to in that order if, prior to 1 December 2015, that particular use or development is authorised by a planning permit issued by the responsible authority, and provided that the relevant use or development complies with any conditions on that planning permit.
4. For so long as a use referred to in Order 2(a),(b) or (c) continues on an interim basis (whether until 1 December 2015, or pending the issue of a planning permit):
   • (a) the area within which that use is conducted must not increase beyond the area of use within the Front Paddock and the North Paddock as at the date of this order.
   • (b) the use must comply at all times with the EPA Guideline 'Noise from Industry in Regional Victoria'[1].
   • (c) in the case of wood chipping, the chipping must be limited to the use of a single mobile chipper of no greater capacity or rated power level than the existing RC1824 chipper, operating behind the acoustic structure, with the 'throat' of the chipper facing generally north, for no more than 15 minutes in each 30 minute period, only on a weekday and for an average of no more than two days per week, and otherwise in accordance with the joint recommendations of Marshall Day and Watson Moss Growcott, acoustic consultants.
5. The Responsible Authority must serve a copy of this order on the owner and occupier of the land pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

Louise Hicks of counsel, instructed by Ellen Hogan & Associates. She called the following witnesses:

• Sharyn Simpkin, one of the applicants
• Ian Simpkin, one of the applicants
• Neville Goddard, acoustic consultant, Watson Moss Growcott
• Adam Layfield, former Council employee

Roz Wilson, solicitor and urban planner. She called the following witnesses:

• Dieter Buchholz, one of the respondents
• Justin Adcock (in October 2014) and Timothy Marks (in April 2015), acoustic consultants, both with Marshall Day
• Alistair Seaton, of High Country Tree Services (by telephone)
• Phillip Taylor, civil engineer, of Mansfield Consulting Services

Sivy Orr, urban planning consultant. She called the following witness:

The land is in the Farming Zone under the Mansfield Planning Scheme. Under clause 35.07, a 'sawmill' is a Section 2 use in the zone.

The land is also within the Environment Significance Overlay - Schedule 2 (Lake Nillahcootie Catchment). The overlay is not material to the issues in these proceedings.

8 May 2015, in the presence of Ian & Sharyn Simpkin (only at their property), Michael Bismire (Council officer), Roz Wilson, Sivy Orr, and Joe Kirley

1. The Buchholz and Kirley families operate a timber mill on land at 285 Barwite Road, north of Mansfield. From humble beginnings, the timber milling operations evolved and intensified over a number of years. There is however no planning permit authorising the use. But for the establishment of an existing use right, the use of the land for the purpose of a timber mill is unlawful.
2. On 7 June 2013, Mansfield Shire Council (Council) issued a certificate of compliance confirming an existing use right for the operation of 'a timber mill for sawn timber production, including firewood, fence posts and rails, bench or table tops and other sawn timber'. The certificate does not make it clear whether this existing use right applies to the whole of the Buchholz land, or only the part of it then being used for that purpose.
3. The Simpkin family own adjacent land in Barwite Road. There are three related proceedings through which the Simpkins seek various orders in relation to the timber milling activities, including:
   • a declaration restricting the area of the land to which any existing use rights apply, and the extent of activities within the existing use right;
   • the cancellation or amendment of the certificate of compliance; and
   • an enforcement order.
4. These proceedings are essentially about existing use rights obtained through 15 years of continuous use of land, in circumstances where the use was unlawful during that period. The proceedings also highlight a common complaint about existing use rights - the unregulated intensification of a use over time in a manner that creates off-site amenity impacts, particularly noise, which is then difficult to control through the planning process.

1. In 1990, Dieter & Pamela Buchholz moved to the land at 285 Barwite Road, Mansfield. Dieter and his father had run the old John Buckley mill in Mansfield. The land in Barwite Road was purchased in Pamela's name. Soon after moving to Barwite Road, in addition to farming part of the land, Dieter started a small business cutting firewood and fence posts with a chainsaw. Pamela apparently obtained advice from the Council that this 'woodcutting' business did not need a planning permit. That advice was probably correct. Even though a timber mill required a permit, even in 1990, the scale of Dieter's woodcutting activity at that stage was such that it was probably an ancillary or incidental use of farming land, or even a home occupation.
2. In 1994, Dieter purchased an Alaskan mill and established a small timber milling business, which milled fence posts and rails, and tabletops. In 1999, he purchased his first Lucas mill, and in 2001 a Mahoe mill, and the business further expanded. In 2006, Joe Kirley brought his mill onto the land, and commenced operation of a separate but complementary timber milling business on the land, and the activities continued to expand. Joe's wife Alicia assists in the business, operating a wood splitter. Dieter and Joe now also employ three workers across their two businesses, operating a variety of mechanical saws, mills, and other equipment. Large trucks now access the site. In 2014, Alistair Seaton brought a large mobile wood chipper on to the land, primarily using the off-cuts and waste generated by Dieter and Joe's businesses to generate a commercial product.
3. The consequence of all of this is that there is now a relatively large timber mill operating on the land, or at least on part of the land.
4. In 1996, Ian & Sharyn Simpkin had moved to 290 Barwite Road, immediately opposite the Buchholz land. At that time, Dieter's business was operating at a relatively modest level, and the two families were friends. For a time, Sharyn agisted her horses on part of the Buchholz land. The Simpkins have however become increasingly concerned as the timber milling activities have increased, both in their nature and in the extent of land area that they occupy. The timber milling activities have expanded in intensity in an area close to the Barwite Road frontage of the Buchholz land, close to the Simpkin land. The Simpkins are particularly concerned with noise levels, including the more recent use of a large chipper, and with traffic and safety impacts.
5. It is common ground that, at all material times, the use of land for the purpose of a 'sawmill' required a planning permit under the various iterations of the Mansfield Planning Scheme from time to time applying to the land. The Buchholz' land is currently in the Farming Zone under the scheme, pursuant to which clause 35.07 lists a 'sawmill' as a Section 2 (permit required) use. The definition of a 'sawmill' under the planning scheme would encompass the timber milling operations undertaken by the Buchholz' and the Kirleys, although I will deal later with the potential distinction between a sawmill generally, and the particular timber milling operations of the Buchholz' and Kirleys.
6. It is also common ground that the Buchholz do not have, and have never had, a planning permit to use their land at 285 Barwite Road for their timber milling and firewood business. Save for any existing use right established under clause 63 of the Mansfield Planning Scheme, the use of the land for the purpose of a sawmill generally, or for the Buchholz' and Kirleys timber milling operations specifically, is unlawful.
7. In 2011, following complaints by the Simpkins about increasing noise and amenity impacts, the Buchholz' sought a planning permit to retrospectively authorise the use, and to authorise associated buildings and works. Mansfield Council determined to grant a permit, subject to conditions. However, on 19 September 2012, following an application for review by the Simpkins, VCAT set aside the Council decision and directed that no permit be granted[2].
8. The previous VCAT decision notes that, late in that proceeding, Mr Buchholz raised the possibility of existing use rights stemming from his initial use of the Alaskan mill in 1994. VCAT determined that it still had to decide the permit application then before it. It chose to make no comment on the merits of the belated claim of an existing use right[3].
9. The substance of the previous VCAT decision is best summarised in its concluding paragraphs:

[77] We accept that Mr Buchholz's sawmill business is supported by planning policy on many levels. The submissions from Mr Taylor and the Council highlight the economic benefits to the community, the support it provides to the local agricultural activity and it is a form of sustainable use of natural resource, milling what would be waste timber into posts and other products.

[78] We find that there is capacity for the operation to occur on his property with suitable measures to control off-site amenity and other impacts, particularly to water quality. However, the acoustic evidence, the evidence of Mrs Simpkin and the material tabled in this proceeding leads us to conclude that the proposed configuration of the operations is insufficient to address potential amenity impacts. In particular, we are not persuaded that the proposed acoustic barrier is sufficient to address identified noise impacts. Similarly, we find the dust and odour impacts to not be sufficiently addressed.

[79] We recognise that this is a retrospective permit application and Mr Buchholz wishes to continue his business. We do not discount the impact of our decision. However, we find that what is required, not withstanding Mr Buchholz's reluctance to do so, is a reconfiguration of the site to move noise and other adverse amenity sources away from the Simpkin residence in order to provide a sufficient buffer distance and reduce the reliance on what would be a large and obtrusive acoustic barrier.

1. Despite the 'encouragement' in the previous VCAT decision, Mr Buchholz and Mr Kirley have not pursued any 'revised proposal' to reconfigure the timber milling activities. Indeed, the have continued to expand. That said, if they continue to operate within the ambit of any established existing use right, they are not obliged to do so.
2. On 22 November 2012, the Simpkins made application to VCAT for an enforcement order under s 114 of the Planning and Environment Act 1987. That application P3413/2012 is the first of the proceedings before me (enforcement proceeding). I will deal with the Simpkin's application grounds later. Those grounds have changed over time. However, I note at this stage that, on 29 January 2013, the Buchholz filed a statement of grounds in response, which squarely relied upon the land having an existing use right as a sawmill.
3. Through a letter dated 7 January 2013, the Buchholz' formally requested the Council to 'acknowledge' the existing use right for the firewood business and mechanical sawmilling business. This was done on their behalf by Phillip Taylor of Mansfield Consulting Services, who put together a folder of documents and photographs supporting the request.
4. The Council treated the request (in my view, correctly) as an application for a certificate of compliance under s 97N(1)(a) of the Planning and Environment Act 1987. That provision allows a person to seek a certificate that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate. The Council obtained advice from its lawyers[4] about the supporting material provided by Mr Taylor, and about the nature and extent of any existing use right.
5. On 7 June 2013, the Council issued a certificate of compliance. Key aspects of the certificate, some of which follow a prescribed form[5], are as follows:

ADDRESS OF THE LAND: CP 173266, 285 Barwite Road Barwite

The Mansfield Shire Council has confirmed the Existing Use Rights for the operation of "a timber mill for sawn timber production, including firewood, fence posts and rails, bench or table tops and other sawn timber".

This Certificate is issued in accordance with section 97N(1)(a) of the Planning and Environment Act 1987.

The use or development existing on the land and referred to in this Certificate complies with the requirements of the planning scheme at the date of this Certificate.

The Responsible Authority has issued this Certificate with respect to the use and development existing on the subject land and referred to in the Certificate.

A Certificate is a statement about the effect of the planning scheme on the use or development on the land on the day it was issued.

1. There are a number of issues about this Certificate, to which I will return.
2. There are no automatic third party rights for an objector to generally review a Council's issue of a certificate of compliance at VCAT. However, on 18 July 2013, shortly following the issue of the certificate by the Council, the Simpkins made application to VCAT for a declaration under s 149B of the Planning and Environment Act 1987. That application P1718/2013 is the second of the proceedings before me (s 149B proceeding). The grounds were amended in September 2013 and have changed further over time. Essentially, the Simpkins sought declarations that:
   • the operation of the timber mill had not been operated across the entirety of the Buchholz land for a period of 15 years, and was limited I the extent of its activities.
   • the existing use right should be limited to an area marked on an aerial photograph (comprising roughly the northern half of what is known as the 'Front Paddock' on the Buchholz land).
   • certain buildings and works had been undertaken without a planning permit.
3. Although the certificate of compliance had purported to confirm that the use and development complied with the planning scheme as at 7 June 2013, it became common ground that certain buildings and works constructed after May 2003[6] required a permit. This essentially relates to two shelters in the 'front paddock' that house the mills, as the mills and saws themselves are largely portable. The Buchholz sought retrospective approval for these works.
4. By this time, the Buchholz had also engaged an acoustic consultant to try to address some of the noise complaints from the Simpkins. One recommended measure was to construct an acoustic fence, gate and shelter adjacent to the Barwite Road frontage, opposite the Simpkin's main driveway and proximate to the Simpkin dwelling. The Buchholz therefore also sought a permit for this structure.
5. On 7 March 2014, the Council issued a planning permit (P113/13) providing retrospective approval for the buildings and works constructed since May 2003. The Council also issued a permit (P197/13) for the acoustic fence, gate and shelter, which was constructed shortly thereafter.
6. The construction of the acoustic fence has had some beneficial impact. Moreover, it led to the Buchholz' effectively closing off the eastern entrance to the timber mill (opposite the Simpkin driveway), and using another entrance further to the west along Barwite Road. The Council also issued a planning permit for further works for this western entrance, although this was complicated by the partial use of adjacent land, the need for a section 173 agreement, and a condition requiring compliance with Council's Standard Design SD265 to facilitate a B-Double rural vehicle crossing. The Buchholz did not undertake these works and that permit has expired. There is an unresolved debate between the Council and the Buchholz' about the use of the western entrance, and compliance with the SD265 standard. That is not directly a matter before VCAT. However, the Simpkins are concerned that the Buchholz' may re-open the eastern entrance adjacent to their land, with a re-opening of consequential noise, traffic and safety concerns in that vicinity.
7. On 30 June 2014, VCAT granted leave for the Simpkins to file a further application, under s 97Q of the Planning and Environment Act 1987. Shortly thereafter, on 11 July 2014, the Simpkins made application to VCAT under s 97Q of the Planning and Environment Act 1987. This application P1158/2014 is the third of the proceedings before me (s 97Q proceeding). Essentially, the Simpkins sought that the certificate of compliance issued by the Council be amended[7] in a manner that reflected the same relief that had been sought in the s 149B proceeding - particularly through a limitation of any existing use right to the northern half of the 'Front Paddock' on the Buchholz land.
8. The s 97Q application is not straightforward. As I have indicated, there are no automatic third party rights to review the issue of a certificate of compliance, and s 97Q contains a number of threshold hurdles to its use.
9. The Buchholz' had been the named respondents in all proceedings, although the Kirleys had also been represented separately at some of the interlocutory hearings given their interest, based on the timber milling business they were also conducting on the land. On 21 July 2014, the Kirleys were joined formally in all three proceedings.
10. Through various iterations of their grounds, the Simpkins have also sought to contest within the proceedings:
    • the non-compliance by the Buchholz with the Council standard SD265 at the western entrance to the Buchholz land. (The Simpkins later withdrew this amended ground during the hearing, and I have not dealt with this ground in these reasons); and
    • an alleged non-compliance with the EPA Guideline 'Noise from Industry in Regional Victoria' (NIRV guidelines)[8]. (This remains an issue to be determined in the proceedings).
11. Historically, the waste generated by the timber milling activities (timber off-cuts etc) had been burnt on site, or trucked offsite by the Bark King Group for use in garden supplies. As I have already indicated, in or around August 2014, Alistair Seaton brought a large mobile chipper onto the Buchholz land as a separate business, to chip this 'waste' as a commercial product[9]. Since then, Mr Seaton has used an RC20 (20 inch) chipper (although it was broken for much of the time, and has now been removed) and an RC1824 (18 inch x 24 inch) chipper, primarily in an area just north of the 'Front Paddock' on the Buchholz land. The Simpkins consider the recent use of these large chippers to be particularly noisy. Indeed, the acoustic experts for both the Buchholz' and Simpkins agree that, without mitigation, the use of the RC1824 chipper exceeds the NIRV guidelines when measured at the front of the Simpkin's dwelling.
12. In March 2015, based in part on recommendations from their acoustic consultant, the Buchholz' and the Kirleys have constructed a large structure or screen in front of where the mobile chipper usually operates. It is almost 4 metres high, over 20 metres in length, and more than a metre thick. Although perhaps constructed in good faith to try to reduce noise from the chipper, it is now common ground that this structure also required a planning permit under the Mansfield Planning Scheme, and does not have a permit. The existing use rights are also contested in this area of the Buchholz land.

1. I have until now referred to the land at 285 Barwite Road generally as the Buchholz land, and to a 'front paddock'. To make sense of what follows, I now describe the land in greater detail.
2. The Buchholz land is a 6.33-hectare site on the northern side of Barwite Road, with a 259.22-metre frontage to that road. Barwite Road runs almost due east-west, and the side boundaries of the site run almost due north-south. The site is relatively square, stretching back 244.41 metres from Barwite Road to the north along its western boundary, and 244.03 metres along its eastern boundary, and with a rear boundary of 259.20 metres.
3. At my request, the Buchholz' prepared and filed a survey plan of their land[10]. That plan shows:
   • a central driveway off Barwite Road leading to a fenced area in the centre of the land, where the Buchholz dwelling and home-related facilities (pool, carport, garden etc) are located. This is known as the House and Garden Area.
   • in the south-west corner of the land, occupying about 20% of the land area, an L-shaped fenced paddock known at the Front Paddock. This Front Paddock is the most critical in these proceedings. It comprises the area now commonly used for the timber milling business of the Buchholz' and Kirleys. At the northern end of this Front Paddock are a number of workshops and a shelter, and including some older farm buildings such as a woolshed. At the southern end of the Front Paddock is a large shelter housing a Lucas mill and a Mahoe mill. This is one of the shelters for which a retrospective planning permit was granted by the Council in March 2014.
   • across the north of the land, occupying about 30% of the land area, a fenced paddock known as the North Paddock. The eastern end of this North Paddock has a fenced area containing a farm dam. The western end of this North Paddock, immediately to the north of the Front Paddock, is now being used for the chipper and wood splitter, and some un-milled timber logs are also stored in this paddock. The acoustic screen for the chipper was constructed in March 2015 in this area.
   • in the south-east corner of the land, occupying about 20% of the land area, a fenced paddock known as the Rocky (East) Paddock. This paddock has a road frontage to Barwite Road.
   • in the eastern part of the land, immediately east of the House and Garden Area, and between the North Paddock and the Rocky (East) Paddock), and also occupying about 20% of the land area, a fenced paddock known as the Middle Paddock.
4. The Front Paddock has a road frontage along its southern boundary to Barwite Road. Indeed, it occupies about half of the road frontage of the Buchholz land, being all of the road frontage west of the central driveway. There is an access from Barwite Road at the south-west corner of the Front Paddock. This is the western entrance I have referred to earlier. It is the entrance now commonly used to access the timber mill, and the entrance where there is a dispute about the application of the Council standard SD265. The Front Paddock also has another access to Barwite Road at the south-east corner of the paddock, immediately adjacent to the central driveway. This is the eastern entrance I have referred to earlier, which is now part of the acoustic fence and gate, and commonly closed.
5. Within the Front Paddock, the Simpkins claim that there are two discrete areas relevant to the proceedings, although not separately fenced. The Simpkins have marked on an aerial photograph a yellow-hatched area, comprising about the northern third of the Front Paddock, being the area of the Front Paddock lying between the House and Garden Area and the western boundary of the land. The balance of the Front Paddock is marked by them as the black-hatched area, being the area along the southern (Barwite Road) boundary of the Front Paddock.

The competing claims about the Buchholz land - a summary

1. In very general terms:
   • the Simpkins claim that, by reference to the historical evidence, only the yellow-hatched area within the Front Paddock has the benefit of an existing use right for timber milling for sawn timber and firewood. They contend that the black-hatched area within the Front Paddock, and part of the North Paddock, is being used unlawfully as a sawmill without the benefit of existing use rights. They also claim that no part of the balance of the land (i.e. the House and Garden Area, the North Paddock, the Rocky (East) Paddock, and the Middle Paddock) has the benefit of any existing use right.
   • the Council now contends that the whole of the Front Paddock (i.e. both the yellow-hatched area and the black-hatched area), and a small part of the North Paddock just to the north of the Front Paddock, has the benefit of an existing use right for timber milling for sawn timber and firewood. Essentially, the Council contends that the area that was actually being used for the timber milling business at the time of its certificate correlates with the area having the benefit of an existing use right. The Council contends that the balance of the land (i.e. the House and Garden Area, the balance of the North paddock, the Rocky (East) Paddock, and the Middle Paddock) do not have the benefit of any existing use rights, and a planning permit would be required to extend the use into these areas.
   • The Buchholz' contend that the whole of the Buchholz land should be treated as an integrated whole, and that the whole of the land has an existing use right for the purpose of a sawmill. Additionally, they assert that the historical evidence is still sufficient to support the establishment of an existing use right in each area of the land, if considered separately. To the extent there is a debate about the historical use of the Front Paddock, the Buchholz' contend that both the yellow-hatched area and the black-hatched area (i.e. the whole of the Front Paddock) have been used continuously for more than 15 years as a sawmill, dating from the first use of the Alaskan mill in 1994.
   • The Kirleys generally support the Buchholz', but concede that there is no clear evidence to support the establishment of an existing use right in the House and Garden Area, the Rocky (East) Paddock, or the Middle Paddock, if those areas are considered separately.

WHICH PROCEEDING BEST FACILITATES A RESOLTION OF EXISTING USE RIGHTS?

1. As indicated, the Simpkins first made application to VCAT for a declaration under s 149B of the Planning and Environment Act 1987 on 18 July 2013, quite soon after the issue of the certificate of compliance, through which they sought similar relief to that now also sought under s 97Q. As I have also indicated, following a practice day hearing, VCAT granted leave on 30 June 2014 for an application to be made under s 97Q, and the application was made soon after that.
2. There are no reasons recorded for this VCAT order granting leave, but Ms Wilson for the Buchholz' submitted that she had in fact raised the matter at the practice day hearing and had submitted that s 97Q ought be used in preference to s 149B given the existence of the certificate of compliance. Out of caution, the Simpkins then made that s 97Q application.
3. As will be seen, this approach has proven to be an unnecessary distraction, given the threshold hurdles to the use of s 97Q in a matter such as this.
4. In Wellington v Surf Coast Shire Council & Ors (Red Dot)[11], I determined that s 149B of the Planning and Environment Act 1987 could be used by a third party objector to seek declarations about the characterisation and extent of existing use rights where there is a bona fide dispute about the lawfulness of a use or development and whether there is a contravention of the planning scheme. In Wellington, the debate was whether s 149B could or should be used in preference to an enforcement proceeding under s114. I indicated that s 149B should not ordinarily be used as a 'back door' means of enforcement or for an ulterior motive. However, I distinguished between the underlying jurisdiction to consider a matter under s 149B, and the discretion or utility in granting the relief sought where other possible remedies exist. I determined that the power to make a declaration was not ousted by the existence of other remedies, but that there may not always be utility in considering existing use rights through a s 149B proceeding where better remedies existed. In Wellington, circumstances existed through which it was considered appropriate to deal with the matter through a declaration proceeding under s 149B.
5. In Inglese v Yarra Ranges Shire Council (Red Dot)[12], the Tribunal expressed a strong preference for existing use rights matters relating to an application for a certificate of compliance under Part 4A of the Planning and Environment Act 1987 to be dealt with under that Part. It was considered that s 97P ought to be used in preference to a s 149A or s 149B declaration proceeding, and the decision there was to amend a s 149B application to instead be an application under s 97P. The decision in Inglese also referred to Wellington, and to another earlier decision where I had decided an application under s 97P and, as a consequence, found no utility in making a declaration under s 149A[13].
6. The utility of using a s 149B process will necessarily depend on the circumstances of each case. Here, unlike Inglese, the proceeding is not a landowner's application to review a certificate of compliance relating to its land under s 97P, but rather a third party objector seeking to cancel or amend the certificate under s 97Q. There are numerous threshold hurdles to that process. Neither the enforcement proceeding nor the s 97Q proceeding, in isolation, will necessarily provide the certainty or relief sought. Moreover, quite apart from the Simpkins who have made the application, the Buchholz, the Kirleys and the Council all appear equally anxious to achieve some certainty about the extent of any existing use right and the lawfulness of existing operations on the land.
7. In the present case, the scenario is similar to that in Wellington. Given the on-going and very real dispute and uncertainty over many years, I consider that there is utility in having the lawfulness of existing use rights and development on the Buchholz land resolved through the s 149B proceeding.

1. Related to the above, a certificate of compliance will not always provide a complete mechanism to determine existing use rights.
2. Under s 97N(1)(a) of the Planning and Environment Act 1987, a person may seek a certificate that a use or development of land complies with the requirements of the planning scheme at the date of the certificate. That has occurred here.
3. Where a certificate states that a particular use that is being carried on at particular date complies with the planning scheme, this does not necessarily establish the full extent of the existing use right for the purpose of clause 63, nor any limitation on the existing use right. Equally, it does not necessarily establish the area of land to which the existing use right applies. It may do these things, but it does not necessarily do so. As the certificate itself states, it is simply a statement about the effect of the planning scheme on the use or development on the land on the day it was issued, and whether it complies.
4. For example, in the present case, the certificate states the address of the land generally, and separately confirms existing use rights for the operation of the timber mill. Nowhere does the certificate state that the existing use right applies to the whole of the land. Indeed, the Council's position before me is that the existing use right does not apply so widely, although this position is contested by the Buchholz in the proceeding.
5. The Council officer report and Council resolution do not clearly determine the issue either way, with the actual resolution confirming the existing use right "of the operation ... at 285 Barwite Road". It appears to be the then operation of the timber mill that is given the benefit of the exiting use right, rather than necessarily the whole of the land. During the hearing on 29 October 2014, the Council's advocate indicated that, although the certificate of compliance was issued for the whole of the Buchholz land, the Council's consideration of the existing use claim may have been limited to the land comprising the 'south-west quadrant of that title' (i.e. consistent with area I have identified as the Front Paddock). This was confirmed in a letter tendered the following day, dated 30 October 2014, from Michael Bismire, the Council's Development Services Manager. This referred to other applications, photographs, plans, complaints, and legal advice all focussing on that south-west quadrant.
6. Mr Bismire's letter refers to legal advice dated 4 March 2013 from the Council's solicitors (which was separately tendered) indicating that the area that has the benefit of the existing right is difficult to determine. The solicitors had advised that it is 'likely' to be the whole of the land unless a particular area or planning unit can be identified including the areas used for access, loading and unloading, storage, and the mill and associated buildings and works. Mr Bismire's letter then states that the Council was satisfied that a planning unit encompassed most of the south-west quadrant, and consideration may not have been given to whether the existing use right extended to land in other quadrants.
7. All of this is consistent with the construction I have placed on the certificate of compliance. Although there was some conjecture that the Council had changed its position, I am satisfied that Mr Bismire's letter clarifies (rather than changes) the way in which the certificate should be read.
8. As at the date of the certificate on 7 June 2013, and for the relevant period of inquiry that preceded it, the Front Paddock (or, in the Council's terminology, the 'south-west quadrant') was the area of the land actually being used for the timber mill. Provided the Council was satisfied that this operation in this area had the benefit of an existing use right, that was sufficient for the Council to certify that that the use of the land as at the date complied with the planning scheme. Theoretically, the Council did not need to turn its mind to whether an existing use right for a timber mill was established on, say, the Rocky (East) Paddock, as that part of the land was not being used, and had never been used, for that timber milling purpose. That paddock was being used for farming operations that also complied with the planning scheme on that date.
9. Read this way, the certificate of compliance is just a snapshot of whether the actual use and development on the land complied with the planning scheme at a particular time, without providing any absolute finding of existing use rights for all purposes, for all parts of the land, and for all time. As I have said, the certificate could have attempted to do that but, on its face, this certificate did not extend that far. I have mentioned that, prior to issuing the certificate, the Council received legal advice. That included advice that further investigations may be necessary to determine the extent of the existing use rights across the land. The Council chose not to investigate further at that time.
10. Even if both the Council and I am wrong about this, and the certificate did purport to establish an existing use right for the whole of the land, then that may evidence a mistake in relation to the issue of the certificate that could found jurisdiction for the s 97Q application. It would still not prevent existing use rights being considered via the s 149B application.
11. It follows that the existence of the certificate of compliance in this case does not operate as an impediment to the making of declarations under s 149B of the Planning and Environment Act 1987 about existing use rights. Whilst I consider that VCAT would have the power to make declarations under s 149B that are inconsistent with the certificate, particularly based on a more forensic examination or new material and at a different date, the declarations I have made are not inconsistent with the certificate when it is read in the manner I have described above.

THE SECTION 149B APPLICATION (DECLARATIONS)

1. As I have said, the Simpkin's s 149B application has changed over time, to reflect changing circumstances. Essentially, declarations are sought to the effect that:
   • an existing use right for the operation of 'a timber mill for sawn timber production, including firewood, fence posts and rails, bench or table tops and other sawn timber' is limited to the yellow-hatched area within the Front Paddock on the Buchholz land.
   • timber milling or sawmill operations outside of this area are unlawful in the absence of a planning permit.
   • the existing use rights do not extend to the use of the chipper, and the separate commercial wood chipping operations.
   • the large structure or screen in front of the mobile chipper is unlawful in the absence of a planning permit.
   • the use of the land fails to comply with the NIRV guidelines.
2. Here, the Buchholz' and Kirleys rely solely upon existing use rights established under clause 63.11 of the Mansfield Planning Scheme, which provides as follows:

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 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. This has become known as the so-called '15 year rule'.
2. In Wellington v Surf Coast Shire Council & Ors (Red Dot)[14], I set out in some detail the background to the '15 year rule' under clause 63.11, and the principles applying to existing use rights established under this rule. I also referred to many of the authorities relating to the characterisation and extent of existing use rights. All parties before me endorsed the commentary and analysis in Wellington. I therefore adopt the principles set out in Wellington without repeating them here, and without referring again all of the supporting authorities. As in Wellington, I have separated some issues for convenience of discussion, but I have ultimately considered the matter in a holistic way to lead to the decision I have reached.

What is the 'relevant date' for assessing continuous use for 15 years?

1. Under clause 63.02 of the planning scheme, if a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use 'at the relevant date'. For the purpose of the 15 year rule, clause 63.11 requires that the use has been carried out continuously for 15 years 'prior to the date of the application or proceeding'. The lawfulness of the use within that period is not relevant.
2. What is important under clause 63.11 is therefore an inquiry into the use between two relevant dates, to establish continuous use over a period of 15 years. The use that must have remained continuous, so the inquiry is essentially whether land has been used continuously for the same purpose over that period. What occurred prior to the relevant period is less relevant, as the underlying purpose of the 15 year rule is itself one of expediency, to avoid an inquiry beyond 15 years.
3. As indicated, clause 63.11 refers to 'the date of the application or proceeding' and elsewhere to an application or proceeding 'including an application for a certificate of compliance under Section 97N'.
4. Here, the Council treated the request for acknowledgement of existing use rights lodged by the Buchholz on 7 January 2013 as an application under s 97N of the Planning and Environment Act 1987. I find this to be the relevant starting date for the calculation of the 15-year period.
5. There are other possible 'relevant' dates, but none differ materially from this date. For example, the s 114 proceeding was filed with VCAT on 22 November 2012, but the fee was not paid until 11 January 2013, and the Buchholz grounds asserting existing use rights were not filed until 29 January 2013. These dates are all proximate to 7 January 2013. Whilst the issue of existing use rights was initially canvassed in the earlier VCAT proceeding in 2012, the extent of the existing use right was not directly 'in question' or dealt with in that proceeding.
6. I therefore agree with the Buchholz that what is relevant in this proceeding is an inquiry of what the use was in the continuous period of 15 years prior to that s 97N application on 7 January 2013 - i.e. between 7 January 1998 and 7 January 2013.
7. Even if the relevant dates were a few months either side of these dates, it would not change the outcome in this proceeding.

Can there be more than one use within the 15-year period?

1. At all relevant times, the Buchholz land has been used lawfully for farming. As will be seen, some parts of the land have been used exclusively for that purpose, with the grazing or agistment of animals.
2. However, it is possible for land to be used for more than one purpose. The fact that sheep may have continued to graze in the Front Paddock, as the timber milling business evolved from its modest beginnings as a wood cutting operation, does not mean that the land continued to be used only for farming. Whether and when an additional separate use is established is a question of fact and degree. If a separate and independent additional purpose is established, it is irrelevant whether one use is dominant or overshadowed by others.
3. Here, the Simpkins do not now dispute a separate existing use right for the timber milling and firewood business, established in addition to the use of the land for farming. They only contest the extent of that existing use right, and the area of the land to which it applies.

What is the purpose of the use to which existing use rights apply?

[115] Much has been written over the years on the characterisation of a use for the purpose of existing use rights, and how the purpose of the use should be ascertained. As the Full Court stated in City of Nunawading v Harrington[15]:

The purpose of the non-conforming use is to be characterized by the appropriately designated purpose of the actual use at the approval date and not by its classification in the list of prohibited purposes such as is to be found here in Column 5 of the PSO: Shire of Perth v O'Keefe [16]

[116] This common law position is also largely reflected in cl 63.02 and 63.03 of the planning schemes[17].

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

63.03 Effect of definitions on existing use rights

The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.

1. It follows that, although the land use term 'sawmill' is defined in the Mansfield Planning Scheme as 'land used to handle, cut and process timber from logs', and although the Buchholz' timber milling activities would generally fit within that definition, the existing use right should not be automatically characterised as a 'sawmill' on that basis. I must look to the purpose of the actual use at the relevant time, which may conceivably be narrower.
2. Equally, it is now almost trite law that statutory provisions designed to protect and preserve existing use rights should be as liberally construed as the language in its context allows[18]. As I indicated in Wellington, courts have refused to categorise a use so narrowly or prescriptively that natural changes in the method of using the land or carrying on a business will render the existing use right valueless. Equally, the courts have been concerned not to categorise the purpose of a use so broadly that the land could be used for a prohibited purpose which was not part of its use at the relevant date. In Wellington, I referred to the decision in Mornington Peninsula Shire Council v Anderson[19], where the court commented on the liberal construction of existing use rights, but added that the provisions should also be construed to give them a sensible operation.
3. Here, the Council's certificate of compliance described the existing use right as at 7 June 2013 as being for the operation of 'a timber mill for sawn timber production, including firewood, fence posts and rails, bench or table tops and other sawn timber'.
4. I am reluctant to depart too far from this Council characterisation of the purpose of the use for a number of reasons. In particular:
   • the characterisation was developed by an experienced planning lawyer with the Council's solicitors, following a forensic examination of background plans, photographs and other documents. This examination revealed a continuous use over 15 years that emphasised both the firewood business, and a limited milling operation of sawn timber for fence posts, table tops etc.
   • the Simpkins do not contest this description of the use, a matter strongly relied upon by the Buchholz.
   • the Buchholz did not seek to review this characterisation of the use following the issue of the certificate of compliance, despite having the opportunity to do so under s 97P of the Planning and Environment Act 1987.
   • ultimately, the Buchholz submission to VCAT was that the Buchholz 'do not have any objection' to the Council characterisation[20], and the Kirleys adopted a similar position.
5. I nonetheless agree with the Buchholz that I am not confined to this characterisation in the s 149B proceeding, and that it remains 'an issue for the Tribunal to determine when assessing existing use rights'. I do not however agree with the Buchholz and the Kirleys that I should now find that the existing use rights are more generally for a 'sawmill'.
6. The Council characterisation attempts to address the actual use at the relevant time, and the primary activities within that use, during the relevant period between 1998 and 2013. Implicitly, it reflects that the timber milling purpose of the use was a more limited purpose than the broader operations of a 'sawmill' generally - again, given the emphasis on sawn timber production rather than the processing of timber generally. Accordingly, I do not consider that this nuanced description is one of semantics, but rather it reflects a genuine attempt to link the characterisation to the actual and slightly more limited purpose that has continued for the relevant 15 years, rather than the broader use as a 'sawmill' that arguably now exists. In doing this, it attempts to give proper effect to clause 63.02 of the Mansfield Planning Scheme, which I have set out above. [In saying this, I note that the Statement of Agreed Facts dated 2 March 2015, as between the Simpkins and the Buchholz', acknowledges that the current use is now as a 'sawmill', although the lawfulness of this current operation clearly lies at the heart of the proceedings.]
7. Nonetheless, I agree with the Buchholz that the last half of the Council characterisation is superfluous. It is couched in inclusive terms and, despite its reference to fence posts and tabletops etc, it ultimately includes all sawn timber. If the mill expanded its end product to include timber for housing construction - e.g. for frames and floors etc. - that would not necessarily be of the same type as fence posts and table tops, but it would still be for 'other sawn timber'. I consider it would be unduly prescriptive, and contrary to a liberal construction, to limit the characterisation of the purpose of use to particular types of sawn timber products.
8. The emphasis in the Council description though is clearly on 'sawn timber'. I agree that this is a sensible acknowledgement of the true purpose of use that existed in 1998, and has continued over the relevant 15 years. It avoids stating the purpose too broadly in a manner that might encompass and authorise other discrete operations that were not part of such use over that period.
9. It must be remembered that, as at 7 January 1998, at the start of the relevant 15-year period, even the first Lucas mill had not yet been purchased. There was a modest firewood and timber milling business being conducted on the land. The mechanical aspect of the timber milling was then limited to the small Alaskan mill purchased in 1994. Whilst this use can intensify over time, with new and larger equipment, the underlying purpose of the use is established by reference to what was then actually occurring (i.e. a firewood business, and timber milling for sawn timber production), and whether that purpose of use has continued.
10. I therefore generally endorse the Council's approach to the characterisation of the purpose of use for the relevant period, in the sense of limiting the purpose of the use to reflect the emphasis on firewood and sawn timber production. I consider that this is an appropriately liberal construction that reflects the purpose of the actual use, whilst not unduly broadening that purpose to include separate additional operations that were not part of the given purpose with the relevant period.
11. Having said that, I consider that there are two important qualifications to the Council's characterisation of the use that better clarify and preserve its intent.
12. First, as I have indicated, the reference to specific end-products such as fence posts, tabletops etc. is not particularly helpful. Having regard to the case law, it purports to categorise the use more prescriptively than is necessary to describe the underlying purpose of use which, in this respect, is timber milling for sawn timber production. Having regard to the inclusive nature of the description, and the catch-all reference to any 'other sawn timber', the reference to particular end-products is also superfluous.
13. Secondly, the Council description refers to ' ... sawn timber production, including firewood ...'. Technically, the firewood production arises primarily through the splitting of timber rather than by sawing it, although in some cases it will be a combination of both processes. To describe it as only part of the 'sawn timber production' is problematic. The parties did not directly address me on this, but the firewood component of the business has never been materially in dispute. The Simpkin's evidence clearly acknowledges that the firewood business has an existing use right, and there was no material dispute about the intensification of that activity from the manual splitting of firewood or use of a chainsaw in the 1990's through to the current use of a large mechanical wood splitter to achieve a similar outcome on a much larger scale. The dispute is still essentially about the area of land used for that purpose, and its noise impacts. Even for the current operations, the parties have described them as 'a sawmill and firewood business'[21], perhaps acknowledging the separate operation of the firewood production from the 'sawn timber' production. I consider that the term 'firewood' should be more correctly referenced as a separate component of the use, rather than being included as only part of the sawn timber production.
14. I therefore find that the existing use right is better described as being for the purpose of 'a timber mill for the production of sawn timber and firewood'. Whilst there may be little difference between a timber mill and a sawmill in general parlance, the reference to a timber mill rather than a sawmill avoids confusion with the broader planning scheme definition of a 'sawmill'. The emphasis is on the production of sawn timber and firewood, rather than the mill, or the broader handling and 'processing' of timber encompassed in the defined term 'sawmill'. Further, the reference to a 'mill' is not limited to the historical derivation of that word. A modern timber mill can use a variety of mechanical and powered equipment (including various forms of saws, mills and splitters) to produce the sawn timber and firewood.
15. I therefore declare that the relevant existing use right established for the operations on the Buchholz land is for the purpose of 'a timber mill for the production of sawn timber and firewood'. I obviously do so without yet declaring the area to which that existing right extends.
16. What is important in either the Council's characterisation, or my own, is that the emphasis remains on sawn timber production and firewood, as the actual purpose of use that has continued for 15 years. In my view, as will be seen, under either characterisation, this use does not include commercial wood chipping - even as an alternative means of disposing of timber off-cuts and other waste from the timber milling business. The wood chipping may comprise the processing of timber (which is relevant to the defined term 'sawmill), but it is not sawn timber production within the more limited characterisation of the actual use over the relevant 15-year period.
17. There is nothing in what I have just outlined that prevents the Buchholz' or the Kirleys from seeking a planning permit for other purposes, including the wood chipping operation. A 'sawmill' is a Section 2 use in the Farming Zone under the Mansfield Planning Scheme, and a permit could be granted for any other lawful use and development on the land. All I have done is to clarify the extent of the current use of the land that has the benefit of an existing use right through proof of 15-years continuous use under clause 63.11 of the planning scheme.

Are there any conditions or restrictions on the use? - clause 63.05

1. Clause 63.05 of the Mansfield Planning Scheme provides as follows:

63.05 Sections 2 and 3 uses

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. I will deal in a separate section with the extent of land subject to the existing use right, which I consider arises as a matter of fact and law in the circumstances of this case, rather than necessarily as an 'implied restriction' under clause 63.05. Other than that, I do not consider that there are any implied conditions or restrictions on the use for the purpose I have ascertained.
2. In Wellington, I cautioned against confusing the purpose of the actual use, with conditions or restrictions that apply to the continuation of that use once an existing use right is established. Although the Simpkins contended that I should find that the use was subject to implied restrictions as to the nature, location, hours of operation, compliance with the NIRV guidelines, or the amenity impacts of particular activities, I believe that its submission in this regard was misconceived. There is no generally implied restriction that a use protected by an existing use right cannot be intensified in any manner that creates an adverse amenity impact.
3. Moreover, in Stonnington CC v Southern Property Corp Pty Ltd and Abgol Pty Ltd[22], the Supreme Court stated that no implied restriction on the extent of existing use rights can be derived from a meticulous cataloguing of the extent of particular activities at the relevant date. Without deciding the matter, the court "inclined strongly to the view" that such a restriction (for the purposes of clause 63.05) would need to be founded in a planning control, or at least some external source. There are no such planning controls or external sources here. Even the NIRV guidelines relied upon by the Simpkins did not exist when the use was first established for the purpose of the 15-year rule, and it is not a guideline that applies as a planning scheme control under the Mansfield Planning Scheme.
4. Further, as indicated in Wellington, and having regard to the principles relating to intensification of an existing use, the expression 'change in activities beyond the limited purpose of the use' in the third dot point in clause 63.05 must mean a change in activities that amounts to a change in the purpose of the use[23]. The clause cannot be read as prohibiting any change in any activity within the existing use right that has a detrimental amenity impact, including noise. If the Buchholz or Kirleys purchase new or additional milling equipment that is louder, but which is still for the same broad purpose of sawn timber production, that is not a change in activity beyond the limited purpose of the use. Nor is a change from an Alaskan mill to a Lucas mill or a Mahoe mill, nor a change in hours, nor the repositioning of equipment within an area having the benefit of the existing use right, nor a change to the access point or bringing in larger trucks, nor a change to the particular sawn timber end-products.
5. It follows that an existing use right may be continued, even with additional amenity impacts, provided the purpose of the use does not change. The establishment of the existing use right itself cannot be read down on the basis of a change to the off-site amenity impacts over time as part of an intensification of use.
6. The Simpkins argued that, read in this way, clause 63.05 would have no work to do. I disagree. An example, and one of the reasons I understand was behind the drafting of clause 63.05, was the attempt to offer some regulation of inner-suburban pubs during their renaissance in the 1990's. A hotel having a purpose of an existing use right limited to the service of food and beverages, and accommodation, could obviously not be limited in changing its hours or patron numbers, or turning more into a wine bar or gastro-pub. The same underlying purpose of use would be continued. But, at least for some hotels, the introduction of gaming machines or late-night live entertainment was arguably a change in the nature of activities to a sufficient degree that the purpose of the use could no longer be described in the same terms. A new or additional activity for a different or broader purpose was arguably being established, and its amenity impacts could be regulated without offending the existing use right established for the narrower purpose. [I say this as a matter of background to deal with the Simpkin's contention, rather than expressing any concluded view about existing use rights for hotels.]
7. Here, the purpose of use is 'a timber mill for the production of sawn timber and firewood'. The use of the land for commercial wood chipping may be a change in activity that invokes clause 63.05, as it does not involve the production of firewood or sawn timber. Clause 63.05 would thus prevent the amenity of the area being damaged or further damaged by a change in the activities at the timber mill that introduces a new activity (e.g. the wood chipping) beyond the limited purpose of the use preserved by the existing use right. A new planning permit would be required for that new or additional activity for a new or broader purpose.

What is the area to which the existing use right applies?

1. I have earlier set out the initial positions of the parties. In particular:
   • the Simpkins claim that only the yellow-hatched area within the Front Paddock has the benefit of an existing use right for timber milling for sawn timber and firewood.
   • the Council now contends that the whole of the Front Paddock, and a small part of the North Paddock just to the north of the Front Paddock, has the benefit of the existing use right.
   • the Buchholz and the Kirleys, contend that the whole of the land has the benefit of the existing use right, although the Kirleys concede that there is no clear evidence to support the establishment of an existing use right in the House and Garden Area, the Rocky (East) Paddock, or the Middle Paddock, if those areas are considered separately
2. The question is therefore whether the existing use right applies to the whole of the land, or only part of it. This became by far the most contentious aspect of the proceeding, taking up several days of evidence, but it is not ultimately the most difficult to decide.
3. The Simpkins were critical that the Council had not had recourse to aerial mapping, and had failed to properly consider the extent of land having the benefit of the existing use right when issuing the certificate of compliance. The Simpkins also referred to the advice from the Council's solicitors that the existing use right may apply to the whole land, but that further inquiries would need to be made to determine the actual area of land having the benefit of the existing use right. A former council employee, Adam Layfield, was called to give evidence about what aerial mapping was available to the Council for the relevant period.
4. I have earlier indicated that the Council could have made this enquiry, but did not need to do so for the certificate of compliance it issued. That certificate simply indicated that the then use complied with the scheme. The Council did not state in the certificate that the existing use right applied to the whole of the land, and its position before VCAT is that the existing use right does not apply so broadly, but only applies to the Front Paddock and a small undefined part of the North Paddock. The Council chose not to investigate that matter further at the time it issued the certificate. The issue of the area having the benefit of the existing use right remained a live issue, and now falls for separate determination in this s 149B proceeding. The matter of what the Council did or did not do when it issued the certificate in 2013 is largely irrelevant to that task.
5. This arguably raises the issue of whether there is some other area or part of the land that better represents a 'planning unit' to which the existing use right applies, if not the whole of the land. The Council's legal advice and Mr Bismire's letter, to which I have already referred, both refer to the possible identification of a 'planning unit' within the Buchholz land.
6. There was discussion in some of the parties' submissions about the decision in Able Demolitions & Excavations Pty Ltd v Yarra Ranges City Council[24] in this regard. In context, I consider that decision reflects the following propositions:
   • the concept of the 'planning unit' will not always have utility in its application to the use of land.
   • in particular, the concept does not have great utility in its application to a proposed use of a greenfields site, and historically evolved to assist in the assessment of an existing use of land.
   • it is sometimes just as easy, and more accurate, to ask what is the land of the proposed use (or, by analogy for an existing use, what is the land to which the existing use right applies).
   • where the label 'planning unit' is used, it should not be used a substitute for a statutory provision or legal principle.
   • a reference to a 'planning unit' will not comprise an error of law if the decision maker correctly applies the relevant statutory provision or legal principle. It will comprise an error of law if the use of the label 'planning unit' leads to the decision maker asking itself the wrong question.
7. The decision in Able Demolition is perhaps not directly applicable here, as that decision related to the proposed use of a greenfields site (where the concept of a 'planning unit' was found to be unhelpful), rather than to an existing use right. However, the discussion in that decision is still apt. It is therefore preferable to address the matter before me not by looking for a 'planning unit' per se, but by simply applying the relevant legal principles to the inquiry of whether the whole of the land has the benefit of the existing use right, or whether the existing use right attaches to only part of the land. The ascertainment of a 'planning unit' may thus be a shorthand way of describing the consequence of that enquiry, rather than its starting point. I have approached the matter in this way, and treated the parties' references to a 'planning unit' accordingly, and with caution.
8. I agree with the Buchholz' and the Kirleys that an existing use right may extend to the whole of a parcel of land even though there may not have been physical use of the whole parcel. As I indicated in Wellington, whether land enjoys existing use rights in this way will depend on whether the totality of the land is properly regarded as an integrated whole[25]. For example, in Harrington, it was said:

Where land may properly be regarded as an integrated whole, it is unnecessary to show that all of it is used for the given purpose. Where part of the land is unused but part is used for the given purpose, the whole of the land may be regarded as used for that purpose[26].

1. As I also noted in Wellington, in many cases, there is a single title, in single ownership, and an absence of physical division of land into separate parts, and it is relatively easy to ascribe existing use rights to all of the land in a particular title.
2. Some authorities have attempted to address the issue of whether the land is an integrated whole (for the purpose of looking at existing use rights) by looking at what I might loosely term the 'intent' of the acquisition. If the whole of the land was acquired for a particular purpose, then the whole of the land may have an existing use right for that purpose even if only part of the land is being used for that purpose at a particular time[27]. However, as noted in both Parramatta and Eaton & Sons[28], mere acquisition with the intention of using it for a particular purpose in the future is not alone sufficient. There must still be a 'present use' of part of the land, albeit not necessarily a physical use of all of the land. An obvious example is land acquired for a quarry, where the area of actual area of excavation changes or expands over time.
3. Essentially, this is still part of the same test of looking at whether the land is properly regarded as an integrated whole. I agree nonetheless with the Buchholz' and the Kirleys that it is relevant for me to look at the purpose for which the land was acquired but, having done so, it does not really advance the issue. First, there is no evidence from the actual owner, Pamela Buchholz, in the proceeding at all. I have no evidence of the purpose for which she acquired the land. Secondly, although the evidence of Dieter Buchholz is relevant to this issue, it is inconclusive.
4. Mr Buchholz indicated that he and his wife looked for land out of the town, and that the land in Barwite Road was ideal for him to start a 'wood business'. The land was also purchased as their principal place of residence. Shortly after the land was purchased in 1990, he started his business 'Dieter's Fire Wood Service', cutting firewood and fence posts. There is no evidence that the whole of the land was acquired for the purpose of a timber mill, and the first mill was not purchased until some years later, in 1994, and still used initially to cut firewood and fence posts. The evidence is that it was only then that the business branched out to include sawn timber products such as fence rails and tabletops, and it was only after these proved popular that the business expanded through the purchase of a larger mill in 1999. The business name then changed to 'Dieter's Fire Wood Service and Lucas Mill' (my italics). The business understandably evolved to follow the market opportunities but, again, there is no evidence that the whole of the land was acquired for the timber milling business that later evolved through this process. The land was acquired for the purpose of part a house to live in, part farming and part firewood business. That was its initial use. It was not purchased for the purpose of 'a timber mill for the production of sawn timber and firewood', which is the use relevant to the 15 year rule. Even that purpose of use was established some time later.
5. I must still therefore address the issue of whether the land is properly regarded as an integrated whole. The purpose of acquisition is not wholly determinative. It may be, for example, that the functional layout or use, or other relevant factors, still lead to the land being properly regarded as an integrated whole, or not.
6. Here, there is land in a single title, and in single ownership. But, equally, there is a physical division of the land into recognisable separate parts through the clearly defined and separately fenced paddocks that have historically been used for different purposes - the house and garden area, the grazing and agistment areas to the east of the house, and the front paddock in the south and west where the firewood business and timber mill has evolved.
7. The evidence before me included many, many photographs taken on the land over many years, and several aerial photographs. These confirm overwhelmingly that discrete fenced areas such as the House and Garden Area, the Rocky (East) Paddock and the Middle Paddock, have never been used for the purpose of the timber milling business during the relevant period. These parts of the land not being used for the timber milling business were not 'unused', nor on the evidence is there any indication that these parts of the land were vacant or dormant and awaiting a future or progressive expansion of the timber milling business. The evidence is that these other parts of the land have been used for a different purpose during the relevant 15-year period. In particular, the Rocky (East) Paddock and the Middle Paddock have been used for farming, albeit hobby farming on a relatively modest scale. Indeed, for a period, part of the farming land to the east of the Buchholz' house was used by Sharyn Simpkin to agist her horses.
8. I say that these other parts of the land were 'never' used for the timber milling and firewood business whilst acknowledging that there were a few photographs[29] that purported to show a small amount of timber stored near the fence line of the House and Garden Area and the Middle Paddock. However:
   • it appears that there may have been one or two isolated instances in or around 1992 when firewood was stacked in the House and Garden Area (in the vicinity of where the carport was later constructed), and a similar isolated occasion in or around 1994 in the Middle Paddock. These instances well pre-date the 15-year period of enquiry between 1998 and 2013, and do not demonstrate a continuing existing use for the purpose now claimed across the entire site for that period. There is no evidence of any use of these two areas for the purpose of a timber mill or firewood business in the 15-years prior to 7 January 2013.
   • it appears that there may have been a small quantity of sawn timber (other than firewood) stored near the fence line of the House and Garden Area and the Middle Paddock, also in or around 1992 or 1993, and perhaps again in the Middle Paddock in the period before 1996. Again, this pre-dates the 15-year period of enquiry. Moreover, the evidence is however that at least some of this was timber used for the construction of the carport in that vicinity, rather than the commercial output of any timber milling operation on the land.
9. Mr Buchholz also presented a supplementary statement at the resumed hearing indicating that he had been reminded by his wife (and wished to change his earlier statement) to indicate that he had cut wood in the Middle Paddock occasionally from 1991 to 1994. This predates the 15-year period of enquiry. Moreover, it even pre-dates the purchase of the Alaskan saw in 1994, which is the event claimed by his advocate as the commencement of the timber milling business giving rise to the existing use right.
10. There was nothing in the oral evidence of Mr Buchholz or Mr Kirley, or the historical chain of documents provided by Mr Buchholz, that changes this position, or that provides a materially different position to that revealed by the photographs. As I noted earlier, the Kirleys conceded that there is no clear evidence to support the establishment of an existing use right in the House and Garden Area, the Rocky (East) Paddock, or the Middle Paddock, if those areas are considered separately, even though the Buchholz' were more reluctant to do so.
11. I find on the evidence that, for the relevant period, the land has not been used as an integrated whole, and the purpose of use of the land has not been as an integrated whole. There is no evidence of any use, even an intermittent use, of the House and Garden Area, the Rocky (East) Paddock and the Middle Paddock, for the purpose of the timber milling and firewood business in the 15-year period prior to 7 January 2013. These areas were always being used for the Buchholz' main dwelling, and for farming purposes, even though the farming was on a relatively modest scale. There is no material evidence that these areas were also being used for an additional purpose in connection with the timber milling and firewood business.
12. Even if I am wrong on this, and there has been some rare or intermittent use of these parts of the land, such use has certainly not been 'continuous' for 15 years in a manner that might establish the existing use right in those areas under clause 63.11 of the Mansfield Planning Scheme. For example, there was oral testimony from Mr Buchholz that, on one occasion in 2006, a large timber log had been brought via the Rocky (East) Paddock and the Middle Paddock into the North Paddock, where it was cut with a portable mill. That is certainly not enough to establish a continuous use for the given purpose in these areas.
13. If the Buchholz land is not an integrated whole, what area does then have the benefit of the existing use right for the purpose of 'a timber mill for the production of sawn timber and firewood'? Following the above discussion that excludes the House and Garden Area, the Rocky (East) Paddock and the Middle Paddock, the area of enquiry becomes limited to the Front Paddock and the North Paddock.
14. I have mentioned earlier that the Buchholz land has clearly defined and separately fenced paddocks, including the Front Paddock and the North Paddock. These fenced areas have remained the same over the years. Fences are not conclusive of the boundaries of areas having existing use rights, but they may be indicative of that. Just as one looks initially at whether the whole of the land is an integrated whole, it is perhaps useful to consider whether a discretely fenced paddock should be considered as an integrated land parcel, and treated holistically in establishing the purpose of its use. It is problematic to attempt to draw an invisible dividing line across a farm paddock to delineate a separate purpose of use - at least in the absence of some good reason for doing so.
15. Although I was not given exact dimensions for each, the area of the Front Paddock is probably less than 1.5 ha, and the North Paddock is probably less than 2 ha. Considered in isolation, both are relatively small parcels of land.
16. The Simpkins have attempted to divide the Front Paddock into a yellow-hatched area (having the benefit of the existing use right) and a black-hatched area (in which they claim the timber milling use is unlawful). The dividing line they have drawn is a dotted line on an unscaled aerial photograph, with no survey accuracy.
17. That said, I can understand why the Simpkins have at least attempted to limit the existing use right in this way. The Buchholz' need to establish 15 years of continuous use for the period preceding 7 January 2013 (i.e. from 7 January 1998) in order to prove a legitimate existing use right. However, almost the entirety of the evidence provided by the Buchholz' and the Kirleys that shows the use of the black-hatched area for the timber milling and firewood business is for the period after 1999. Having heard the detailed evidence over several days, including many photographs, I accept the Simpkin's contention that the timber milling and firewood business was a modest business that was largely confined to the yellow-hatched area until 1999. From that time, stacks of timber and firewood were progressively stored in the black-hatched area, and the use evolved progressively from then across the whole area of the Front Paddock[30]. This theoretically gets the Simpkins to first base in their argument. A use of the black-hatched area only from 1999 is insufficient to establish 15 years of continuous use for the purpose of 'a timber mill for the production of sawn timber and firewood' prior to 7 January 2013.
18. I say 'almost the entirety of evidence' supports the Simpkin's contention because there were some tendered photographs where the date or location was disputed[31], even as between Mr Buchholz and Mr Kirley, and where it was not entirely clear whether timber stacks were in the yellow-hatched area or the black-hatched area. In some of these photographs, timber stacks were in the distant background, and it was difficult to plot locations even by reference to other site features. In addition, Mr Buchholz gave evidence that he had used the black-hatched area, albeit intermittently, from as early as 1995, and he did not intentionally confine himself to the yellow-hatched area in his firewood business activities. In the early days, he mainly used this area because it was close to the sheds and his equipment.
19. Despite detailed oral testimony and cross-examination over several days, I do not find it necessary to resolve these finer points of factual dispute. I consider all parties on all sides of the debate were genuine in their recollections. As I have said, I accept the Simpkin's contention that the timber milling and firewood business was largely confined to the yellow-hatched area of the Front Paddock until at least 1999 and, in reality, I do not consider that this contention was seriously contested by the Buchholz' and the Kirleys through the evidence they led. But that is not enough to justify a declaration in the Simpkin's favour on this issue.
20. In particular, the yellow-hatched area is a land-locked part of the Front Paddock. The only access to the yellow-hatched area from Barwite Road through which timber logs came in, and through which firewood and sawn timber products went out, was across the black-hatched area. Although this access was historically limited to the eastern part of the black-hatched area, it was nonetheless part of the area used for the purpose of the timber milling and firewood business.
21. In my opinion, this access is alone sufficient to dispose of the issue on a factual basis, and to demonstrate that the black-hatched area was also being used for the given purpose. In saying this, I also agree with the advice of the Council's solicitors, given on 4 March 2013 when first assessing this matter, that any 'planning unit' identified as having the benefit of an existing use right '...would include areas used for access, loading and unloading, storage, and the mill and any associated buildings and works' (my italics).
22. More generally, I am also not satisfied that the Simpkins have demonstrated that the Front Paddock was being used other than as an 'integrated' parcel of land. The dividing line between the yellow-hatched area and the black-hatched area is somewhat arbitrary in a relatively small fenced paddock area. It is a dotted line on a photograph that cannot be defined by reference to any obvious physical features. There is no real evidence to 'fix' this line with any precision, nor to determine why the line should not be, say, 10 metres to the north or south, or angled differently.
23. I do not consider it is appropriate, or correct, to devise a notional 'planning unit' in the manner contended by the Simpkins. Having regard to the test in Harrington, although the whole of the Buchholz land is not an integrated whole, the Front Paddock considered alone is in my opinion an integrated whole. It is therefore unnecessary to show that all of it was physically used for the given purpose as at 7 January 1998. Although only part was clearly being physically used for the timber milling purpose at that time, the other part of the Front Paddock was largely 'unused' rather than being used for a clearly different purpose. Unlike the other paddocks, there is no exclusive use of the black-hatched area for another purpose. The sheep grazing in the Front Paddock did not keep to one side of a notional line, such that the black-hatched area was being used only for farming, and the yellow-hatched area only for the timber milling and firewood business. It is more likely that there was use for more than one purpose across the entire paddock, or that the sheep grazed in this Front Paddock (including in and around the timber stacks) just to keep the grass down.
24. Having regard to the test in Harrington, the whole of the Front Paddock may thus be regarded as being used for the purpose of the timber milling and firewood business at the relevant time. On the evidence, the whole of the Front Paddock has been used continuously for the same purpose for 15 years since 7 January 1998. Indeed, for the 13 years from 1999, this is undisputed by any party.
25. Subject to my finding that the Front Paddock considered alone is an integrated whole (rather than the whole of the Buchholz land), this view is also consistent with the decision in Eaton & Sons[32], a case that concerned land used for timber storage. There, the court had found that a relevant fence within the land did not limit the physical use of the land because timber had been stacked beyond the fence into adjacent areas to a significant extent (unlike here). That distinction aside, the court held that notionally vacant land integrated with land in actual physical use would rarely be found to not have the same existing use. Progressive physical use of a lot for timber storage, even though the progress may be irregular and at long-spaced intervals, would mean that if a notional dividing line was drawn, it would always be necessarily conterminous with the actual physical use, which may vary from time to time[33]. The court did not think it would be often that such a line could be easily drawn to so confine the existing use to 'doubtfully defined parts' relating to its actual physical use at any given point in time, and the existing use was carried out on the whole of the integrated land parcel. The court found this would be particularly the case for a relatively small suburban allotment. By analogy, the same may be said to apply to a discrete and relatively small land parcel such as the Front Paddock in this case, rather than necessarily to the whole of a broad-acre farm.
26. Based on all of the foregoing, I find that the whole of the Front Paddock is an integrated land parcel, and that the existing use right for the purpose of 'a timber mill for the production of sawn timber and firewood' applies across the whole of the Front Paddock, and has continued for that same purpose since at least 7 January 1998.
27. What then of the North Paddock? Having considered the evidence, the Council submitted that the 'planning unit' that encompassed the existing use right extended into a small part of the south-west corner of the North Paddock. It was unable to define that area. The evidence that led it to this view was that Mr Buchholz had occasionally cut or stacked firewood behind a shed on the fence line between the Front Paddock and the North Paddock, just within the North Paddock, and customers occasionally purchased firewood from that stacked pile. The Council however contended that there was no evidence that the main area of the North Paddock had been used for the purpose of the timber milling or firewood business during the relevant period of enquiry.
28. The Council submission in relation to the North Paddock was perhaps well-intended, but in my view misconceived. No other party adopted this position. In my view, the Council case for splitting the North Paddock notionally into two parts fails for the same reason as the Simpkin's case for the Front Paddock. The North Paddock, like the Front Paddock, is a separately fenced paddock that is generally used as an integrated land parcel. It is not an area that can be easily or notionally divided into 'doubtfully defined parts' (using the words in Eaton & Sons) for the purpose of existing use rights. Until recent times, the North Paddock has been used separately for farming purposes. Only in very recent times, primarily in the last year or so, has it been regularly used for the mobile chipper, the wood splitter, and for the storage of large timber logs awaiting milling.
29. In my view, the Buchholz' and the Kirleys failed to establish on evidence that the North Paddock has been used continuously for the purpose of 'a timber mill for the production of sawn timber and firewood' for 15 years prior to 7 January 2013. The aerial photographs at periodic intervals do not show any such use, albeit that they are only snapshots in time from 2002 onwards. Mr Buchholz' oral testimony was inconclusive, but at most points to a very rare or very intermittent use of this paddock in connection with the timber milling and firewood business, and the occasional stacking of firewood behind the shed. Only one photograph[34] was produced for the North Paddock, being a photograph showing the milling of a large log with a portable mill in the North Paddock in or around 2006. There was no indication that this was anything other than a one-off event, with Mr Buchholz' evidence being that this log had been separately brought to the North Paddock via the gates through the Rocky (East) Paddock and Middle Paddock. It was not an extension of the use from the adjacent Front Paddock. It is not indicative of any integration of the North Paddock and the Front Paddock either physically, functionally, or with the purpose of progressively extending the business from the Front Paddock into this area over time. Indeed, there was a suggestion that, in the previous VCAT proceeding, Mr Buchholz had contended that the North Paddock could not be used for the timber mill operations over the longer term (despite a Tribunal view that this might be desirable) because the North Paddock contained a boggy depression that rendered it unsuitable for such purpose.
30. I therefore find that the North Paddock does not have the benefit of the existing use right. It is not part of an 'integrated whole' with the Front Paddock.
31. Again, there is nothing in what I have just outlined that prevents the Buchholz' or the Kirleys from seeking a planning permit for the areas of the Buchholz land that does not have the benefit of the existing use right as 'a timber mill for the production of sawn timber and firewood' or more generally as a 'sawmill'. All I have done is to clarify the extent of the area of the land that has the benefit of an existing use right through proof of 15-years continuous use under clause 63.11 of the planning scheme.

Has the purpose of the use changed within the 15 years?

1. It is clear that there have been some changes in individual activities within the use within the relevant 15-year period, and some intensification of the use. However, with one critical exception, over this entire period, I am satisfied that the real and substantial purpose of the actual use did not change. Save for that one exception, the use was and remained for the purpose of 'a timber mill for the production of sawn timber and firewood'.
2. Under the principles commonly applying to existing use rights, land may continue to be used generally for the same purpose. In Shire of Perth v O'Keefe[35], it was stated:

First it is required that a purpose be identified as the end for which it can be seen that the premises are being used ... . 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 the use generally for that purpose may continue.

1. As indicated in Wellington, the case law clearly establishes that a use may be intensified over time, even with a change in activities within the use, without changing the purpose of use[36]. The use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served[37]. There may even be greater amenity impacts created through the intensification of the use, without the purpose of the use changing[38].
2. Here, there has undoubtedly been a massive intensification of the use from its humble beginnings, and that intensification continues. In particular, the activities intensified in 1999 when Mr Buchholz purchased his first Lucas Mill, and again in 2006 when Mr Kirley commenced his related activities on the land. But the sawn timber production and firewood business is still for the same underlying purpose, and protected by the existing use right. I cannot regulate that right by imposing conditions or restrictions on the type or positioning of equipment or access arrangements (save for any development control), or hours of operation, or the volume of output, or noise. If the current milling equipment is louder, and annoying to the Simpkins, but for the same broad purpose of firewood or sawn timber production, that operation is protected by the existing use right - at least for planning purposes. The EPA may still have jurisdiction to enforce a noise complaint, but that is not a matter within my discretion in these proceedings under the Planning and Environment Act 1987.
3. I find that, in relation to the purpose of use of 'a timber mill for the production of sawn timber and firewood', that purpose has continued for 15 years within the 'Front Paddock' without a change in its underlying purpose. It has the benefit of an existing use right for that purpose and in that 'Front Paddock' area under the 15 year rule in clause 63.11.
4. I have mentioned above that there is one critical exception to whether the purpose of use has changed. That exception lies in relation to the mobile chipper and the commercial wood chipping operation. It is arguable that the original purpose of use has changed such that what is now occurring on the land is a full-blown 'sawmill', and that the purpose for which the land was being used on 7 January 1998 (i.e. 'a timber mill for the production of sawn timber and firewood') is not the same as the purpose for which the land is now being used (i.e. a 'sawmill' (as defined) including the processing of timber through wood chipping). Strictly speaking, if the use is now for a different purpose, it is arguable that there has been no 'continuous' use for the same purpose for 15 years, and no existing use right has been established under the 15 year rule at all. However, the Simpkins did not argue the matter in that way.
5. I note again that the given purpose I have ascertained is a refinement of the Council's characterisation of the purpose of use as 'a timber mill for sawn timber production, including firewood, fence posts and rails, bench or table tops and other sawn timber'. It has the same intent. The emphasis is on sawn timber production and firewood. I also note again that the Simpkins did not contest the Council's characterisation (but rather the area it applied to), and the Buchholz' and the Kirleys formal positions were that they had 'no objection' to it. There is thus an implicit concession by all parties that the existing use right is established over part of the land for the timber milling for sawn timber production and firewood, but not for the wood chipping.
6. Accordingly, I find that the use of the mobile chipper and the commercial wood chipping operation constitutes a use for a new and additional purpose that does not have the benefit of the existing use right. It is a new discrete purpose of use on the land, involving an activity and operations beyond the limited purpose of the use preserved by the existing use right.
7. Wood chipping is a quite different operation to timber milling for sawn timber production. I have already noted the Council emphasis on the existing use right stemming from 1998 (with which I have agreed) as involving sawn timber production and firewood. The end-product here is not sawn timber at all, but wood chips and/or sawdust. It involves a quite different process, using quite different equipment, in a different location on the land, with a quite different output, and with quite different amenity impacts - including a high level of noise. Moreover, here, it operates as a quite separate business commenced well after the other timber milling and firewood business. Whilst none of these matters, in isolation, is determinative, the evidence here leads to a conclusion that the wood chipping operation is in no sense interdependent with the business of sawn timber production and firewood, nor a natural progression or intensification of the underlying purpose of that use. It is simply convenient for Mr Seaton to bring his chipper to the site.
8. There was no wood chipping within the timber milling and firewood business on the land in 1998, or even in the period shortly afterwards when the business started to expand following the purchase of the Lucas Mill in 1999. The evidence of Mr Buchholz was that the waste generated by the milling business in the early days (e.g. sawdust and timber off-cuts etc.) was usually burnt on-site. The evidence of Mr Buchholz and Mr Kirley is that, as the business expanded, and until late 2013, this waste was trucked off-site by the Bark King Group for use in garden supplies. The evidence of Mr Buchholz and Mr Seaton is that, in 2009-10, and perhaps once or twice in those years, a small amount of timber off-cuts were chipped in the Front Paddock using a small 12-inch mobile chipper. This was done to meet a couple of specific orders, although the main waste was still trucked off-site via Bar King. The evidence of Mr Seaton is that, from 2010, he brought his larger RC1824 mobile chipper onto the land two or three times a year. It was 'minimal use' and 'once every 4 months or so'. Mr Seaton did this as part of his own business, using one of his six crews who operate a small number of mobile chippers and other equipment that are transported to different sites as required. The wood chipping was not part of Mr Buchholz' or Mr Kirley's operations, they did not share in the profits with Mr Seaton, and the main waste was still trucked off-site via Bar King until late 2013.
9. On this basis, as at 7 January 2013, it is difficult to establish any use of the land for a purpose that included wood chipping, let alone a purpose of use that had continued for 15 years.
10. On the evidence I have referred to, I do not accept the contention of the Buchholz' that the commercial wood chipping operation is just another form of waste disposal of the timber off-cuts, as an alternative to burning on-site or trucking off-site by Bark King. It is not an incidental use or activity to the limited purpose of use that has the benefit of the existing use right.
11. In or around August 2014[39], Mr Seaton brought an RC20 (20 inch) chipper onto the land, although the evidence is that it was broken for much of the time, and not often used. It was stored and used in the North Paddock, and was particularly noisy and annoying to the Simpkins when used, but has now been removed. Mr Seaton then started bringing the RC1824 (18 inch x 24 inch) chipper more regularly onto the land, again used in the North Paddock. It is also operated by another member of Mr Seaton's crew as part of Mr Seaton's business, which is separate to the timber milling and firewood business of Mr Buchholz and Mr Kirley.
12. A new commercial wood-chipping operation has thus developed on the land in very recent times. As I have indicated, it is a use for a new, additional and separate purpose, and is not part of the use for the purpose of 'a timber mill for the production of sawn timber and firewood'. The wood chipping use was probably sufficiently rare and intermittent, and using portable equipment, such that it did not constitute a separate use of land through the initial use of the 12-inch mobile chipper on one or two occasions in 2009-10. The use for planning scheme purposes probably did not evolve until after 2010, and possibly not until 2014. I do not need to decide this. It clearly does not have the benefit of any existing use right. Even on the best scenario, the use for this purpose was established no earlier than 2009 and cannot obtain the benefit of the 15-year rule under cluse 63.11 of the Mansfield Planning Scheme. The use of any part of the Buchholz land for the purpose of a wood chipping operation is unlawful in the absence of a planning permit.
13. I have mentioned that the use of the large chippers is particularly noisy. Indeed, the acoustic experts for both the Buchholz' and Simpkins agree that, without mitigation, the use of the RC1824 chipper exceeds the NIRV guidelines when measured at the front of the Simpkin's dwelling. Lest there be doubt, I do not consider the noise issues to be directly relevant or determinative to the ascertainment of the purpose of use of the wood chipping operation, or to my decision that this is a new and additional purpose of use. That is a separate matter for possible enforcement that I will deal with later in these reasons. Equally, for reasons I will deal with later, I do not consider it necessary or desirable to make a formal declaration in relation to the exceedance of the NIRV guidelines. I will deal with the acoustic evidence under the s 114 (enforcement) proceeding.
14. Towards the end of the hearing, it became apparent that the Buchholz' and the Kirleys have constructed a large structure in front of where the RC1824 mobile chipper usually operates in the North Paddock. As I have indicated, it is almost 4 metres high, over 20 metres in length, and more than a metre thick. Although perhaps constructed in good faith to try to screen and reduce noise from the chipper, it is now common ground that this structure also required a planning permit under the Mansfield Planning Scheme, and does not have a permit.
15. The Simpkins sought that I make a declaration in relation to this structure. Although it is perhaps a matter more germane to enforcement, I find for the record that the construction in or around March 2015 of a structure within the North Paddock to screen the mobile chipper is unlawful and requires a planning permit.

Conclusions on s 149B proceeding

1. It follows from all of the above that I am unwilling to make declarations in the exact form sought by the applicant. However, s 149B of the Planning and Environment Act 1987 empowers me to make any declaration I consider appropriate in the circumstances.
2. In relation to the land at 285 Barwite Road Mansfield, I consider that there is utility in making certain declarations (in the form set out in my orders) in substitution for those sought by the applicants. These will give effect to my key findings, and provide a degree of certainty to all parties as to the nature and extent of the existing use right that exists over part of the land.

THE SECTION 97Q PROCEEDING (CERTIFICATE OF COMPLIANCE)

1. Having decided the s 149B proceeding in the manner that I have, it becomes unnecessary to consider in detail all of the matters raised in the s 97Q proceeding. However, I still deal with those matters necessary to dispose of that separate proceeding before me.

1. Section 97Q(1) of the Planning and Environment Act 1987 provides:

(1) Any person may request the Tribunal to cancel or amend a certificate of compliance issued under this Part if the person believes that the person has been adversely affected by a material mis-statement or concealment of fact in relation to the application for the certificate or a material mistake in relation to the issue of the certificate.

1. Section 97Q is a little used provision. It has similarities to s 87 of the Planning and Environment Act 1987 and, indeed, s 97Q(5) adopts (with any necessary changes) a number of corresponding provisions of the s 87 process. These include:
   • s 88 - to the extent the power relates to development, as opposed to use, the power to cancel or amend a certificate cannot be exercised once the relevant development is completed; an
   • s 89(3) - a request may be refused unless VCAT is satisfied that the request has been made as soon as practicable after the person had notice of the relevant facts.
2. I will deal with the relevance of these two 'adopted' provisions first.
3. First, it is now common ground that the certificate contains at least one mistake. It indicates that both the use and development (i.e. all buildings and works) comply with the Mansfield Planning Scheme as at 7 June 2013, whereas there were some buildings that had been constructed without a permit. Indeed, the Council resolution of 7 June 2013 that preceded the issue of the certificate of compliance expressly referred only to a compliant 'use', and required that an application for all buildings and works constructed since May 2003 be made within 60 days. Strangely, the certificate that issued did not reflect the actual Council resolution in this regard.
4. It is problematic to apply s 88 to this scenario. The relevant development had been completed, albeit unlawfully, so the power to amend the certificate is arguably lost. Indeed, s 88 would arguably always prevent such a mistake being rectified through a request under s 97Q. I do not need to resolve that dilemma here. A retrospective permit was issued on 7 March 2014 in relation to the non-complying buildings and works, and the Simpkins did not rely on this mistake with the certificate to found their request under s 97Q.
5. Secondly, the certificate was issued on 7 June 2013, and the Simpkins did not make a request under s 97Q until 11 July 2014. The Buchholz contended that I should refuse the request because it was not brought 'as soon as practicable', having regard to s 89(3). In the circumstances, I would decline to exercise my discretion in that way. The Simpkins made their s 149B application, seeking similar relief, very soon after the certificate was issued. They did not sit on their rights. As I have already indicated, the Simpkins also made the s 97Q application following a submission at a practice day hearing by the respondents' advocate that such a proceeding may be more appropriate than the s 149B application, and the Simpkins made the application promptly after that hearing and in accordance with leave granted by VCAT. It thus ill-befits the Buchholz' to argue the application was not made 'as soon as practicable' when it was made, at least in part, at their behest and with the leave of the Tribunal.

Has there been a material mistake in the issue of the certificate?

1. Having dealt with two preliminary issues, there is a further, more significant, threshold issue for the Simpkins to overcome in the s 97Q proceeding. The Simpkins must show that there has been a material mis-statement or concealment of fact in relation to the application for the certificate or a material mistake in relation to the issue of the certificate.
2. In this regard the Simpkins assert a material mistake in relation to the issue of the certificate, being:

... the failure by the Council to properly assess that part of the land which benefits from existing use rights, and a failure to address the further amenity impacts arising from the activities on the site[40].

1. I will address these two aspects in turn.
2. First, I do not consider that the Council failed to properly assess that part of the land that benefits from the existing use right. I have already dealt with this issue earlier in these reasons. The Council could have used the certificate of compliance process to assess the extent of area to which any existing right applied, but it did not need to do so for the certificate of compliance that it issued. From its material, it appears that the Council concerned itself with the then operation of the timber mill in the south-west quadrant of the land, rather than whether the existing use right extended into other quadrants. The Council was not obliged to assess the exact extent of any broader area that benefitted from the existing use right, provided it was satisfied that the area in which the physical use was actual being conducted had that benefit. Although it did not perhaps express itself clearly at the time, the Council was obviously so satisfied in relation to the south-west quadrant. Because the Council was not obligated to undertake an assessment of the exact part of the land having the benefit of the existing use right, beyond the particular area of operation where compliance was then in issue, it cannot be said to have failed to properly assess that matter.
3. Moreover, the main evidence the Simpkins rely upon for this ground is the purported failure of the Council to obtain and consider aerial mapping that, according to Mr Layfield, would have been available to it. However, Mr Layfield's oral testimony suggested that the 'MapInfo' system would only have provided comparative information for two main periods in 2001/02 and 2005/06. It would not have assisted with the ascertainment of the area of operation, to the extent it may have been relevant, as at 7 January 1998 at the start of the 15-year period of enquiry, or for continuous use over 15 years.
4. I do not therefore consider the Council's decision not to access aerial mapping to be a 'material mistake' in its consideration of matters leading to the issue of the certificate of compliance. Even if the aerial mapping may have assisted with the ascertainment of the area of the physical operation of the timber mill, it would not have addressed the issue of whether vacant or unused parts of the land had the benefit of an existing use right, and whether the land, or part of it, was operating as an integrated whole. That is to be decided on a broader base of evidence, and the Council had access to its solicitor's advice and officer assessment of those additional matters. I agree with the Buchholz' and the Kirleys that, in the absence of more, there should be a presumption of regularity in the way the Council considered the matter.
5. As I have indicated, the certificate of compliance simply indicated that the then use complied with the scheme as at 7 June 2013. The Council did not state in the certificate that the existing use right applied to the whole of the land, and its position before VCAT was that the existing use right does not apply so broadly, but only applies to the Front Paddock and a small undefined part of the North Paddock.
6. In the s 149B proceeding, I have reached a similar finding to the Council in relation to the existing use right for the Front Paddock, but not in relation to the North Paddock, and I have refined the characterisation of the existing use right without materially changing the intent of the Council's characterisation of the use.
7. To the extent I have disagreed with the Council about whether a small undefined part of the North Paddock has the benefit of the existing use right for 'a timber mill for the production of sawn timber and firewood', that could conceivably expose an error in the certificate of compliance if that part of the North Paddock was in fact being used unlawfully for such purpose on the date of the certificate (i.e. on 7 June 2013). In such a circumstance, the Council's certification that the use of the Buchholz land on that date complied with the Mansfield Planning Scheme would be wrong in that respect.
8. Putting to one side whether such an error would comprise a 'material mistake' in relation to the issue of the certificate, as opposed to an error in its content, I simply have no evidence to decide this issue. The Simpkin's case under s 97Q was pitched at a different level (based upon their attempt to distinguish between the yellow-hatched and black-hatched areas in the Front Paddock) over an extended period. It was also based on an argument that the certificate of compliance purported to establish the existing use right across the whole of the Buchholz land generally and for an extended period of time whereas, consistently with the Council's approach, I have construed the certificate in a different way.
9. The Simpkins did not lead any evidence about the Council's contention in relation to the small undefined area of the North Paddock. Nor was this area ever defined by any party by reference to its size or any notional dividing line from the balance of the paddock, save for being said to be an area generally in the south-west corner of that paddock. Nor was there any evidence that specifically related to the use of the land on 7 June 2013 or, more specifically, the use of the south-west corner of the North Paddock on 7 June 2013. There is no evidence that any of the main timber milling activities (i.e. the specific use of mills and saws) have ever occurred in this area. There were no photographs for the period in or around 7 June 2013 to assist in ascertaining whether this area was being used for other activities forming part of the existing use right - e.g. the storage of timber logs or firewood, the use of the wood splitter, or other activities. Whilst those activities were occurring in this location at the time of my site inspection on 8 May 2015, and whilst there is some evidence of firewood being stored behind the shed just inside the North Paddock in the early 1990's, I do not know what was occurring there in June 2013. There may have been no unlawful activity in that area in or around 7 June 2013.
10. Accordingly, I do not find any material mistake established on this basis.
11. The second part of the Simpkin's claim of a material mistake is a purported failure to address the further amenity impacts arising from the activities on the site. This was raised in the context of clause 63.05 of the Mansfield Planning Scheme. I have previously found that there are no implied conditions or restrictions on the use for the purpose I have ascertained. I have disagreed with the Simpkin's contention that the use was subject to implied restrictions as to the nature, location, hours of operation, compliance with the NIRV guidelines, or the amenity impacts of particular activities. Given this, the use for the limited purpose of 'a timber mill for the production of sawn timber and firewood' can lawfully intensify even in a manner that has adverse amenity impacts.
12. The Council was well aware of the Simpkin's concerns about noise and traffic when it considered the certificate of compliance, but these were not directly relevant to the matters it was obliged to consider in issuing the certificate. There is thus no material mistake established on this basis.
13. In its final submissions, the Simpkins asserted a further mistake, and an alleged concealment, in relation to the use of the chipper and the amenity impacts arising from it, alleging that a chipper has been in use on the site from 2009. The chipper is highly relevant to matters I have dealt with elsewhere in these reasons, but I will deal with it summarily on the issue of whether it is relevant to the issue of a 'material mistake'. It is not.
14. The chipper than was in use in 2009 was the much smaller 12-inch mobile chipper that was brought onto the land very occasionally (once or twice a year, according to Mr Seaton) from in or around 2009/10. The Simpkins have not expressed any material concerns about the occasional use of this smaller chipper in any of their initiating material, and it was not mentioned as a noise source in the summary of acoustic evidence in the previous VCAT decision in 2012. It was not in use when the Buchholz' lodged their request for a certificate of compliance on 7 January 2013.
15. The RC1824 chipper had also been used every 4 months or so, from 2010, according to Mr Seaton. Again, this is not mentioned in the Simpkin's initiating material as a source of concern, and neither was it mentioned as a noise source in 2012. There is no evidence that it was regularly in use when the Buchholz' lodged their request for a certificate of compliance on 7 January 2013 or that it was actually in use in or around 7 June 2013 when the certificate was issued.
16. I find no evidence of concealment, nor any mistake in the issue of the certificate of compliance, resulting from this.
17. The RC20 chipper was first brought onto the land in or around August 2014, and the RC 1824 chipper was more regularly used in the Northern Paddock shortly thereafter. This is clearly well after the date of the certificate, and does not evidence any mistake in the certificate as at 7 June 2013.

Conclusions on s 97Q proceeding

1. It follows from the above that the Simpkins have failed to demonstrate on the evidence that there has been concealment of fact in relation to the application for the certificate, or a material mistake in relation to the issue of the certificate. The Simpkins have thus failed the threshold test to an application under s 97Q of the Planning and Environment Act 1987, and I do not need to consider the request further.
2. The application is accordingly dismissed. For practical purposes, little turns on this, given the outcome of the s 149B proceeding in clarifying the nature and extent of the existing use right.

THE SECTION 114 APPLICATION (ENFORCEMENT)

1. As with other aspects of the proceedings, the issues for potential enforcement changed over the course of the hearing.
2. Section 114 of the Planning and Environment Act 1987 allows any person to apply to VCAT to enforce a contravention of the Act, a planning scheme, a condition on a permit, or a section 173 agreement. It is not a general power of enforcement in relation to more general planning issues, such as an impact on amenity, unless there is a specific contravention of the Act, planning scheme, permit, or a section 173 agreement. It is common ground that there is nor relevant section 173 agreement here.
3. I can quickly dispose of three issues.
4. First, the Simpkins had sought that I make an enforcement order about the western entrance to the land, and its purported non-compliance with the Council's engineering standard SD265 - Typical B-Double Vehicle Crossing (Rural Entrance). The Simpkins later withdrew this part of the application. Compliance with the standard SD265 is not referenced in the Planning and Environment Act 1987 or planning scheme. It was referenced in a planning permit relating to the western entrance, but that permit has expired without the specifically permitted works having been undertaken. There is therefore no relevant contravention that VCAT can enforce. The use of the western entrance nonetheless remains a live issue that the Council is seeking to resolve under other local government powers.
5. Secondly, the Simpkins had sought that I make an enforcement order that the use of the land generally comply with the EPA Guideline 'Noise from Industry in Regional Victoria' (NIRV guidelines). Compliance with the NIRV guidelines is not referenced in the Act, planning scheme, or any permit condition. As the name suggests, the NIRV guidelines are just that - they are guidelines. For planning scheme purposes, EPA noise guidelines are usually referenced only as matters of general policy, rather than as a control mechanism capable of direct enforcement. Whilst compliance with an EPA noise guideline is occasionally a matter for a permit condition, and becomes enforceable on that basis, there will usually be no relevant permit in a case of existing use rights (as here). Accordingly, although the Simpkins are understandably concerned about noise, there is no relevant contravention for the purposes of s 114 of the Planning and Environment Act 1987 that VCAT can enforce. VCAT does not have a general discretion to enforce EPA noise guidelines. That is a matter for the EPA. As will be seen below, however, if VCAT allows an otherwise unlawful activity to continue on an interim basis pending some other remedial event, that can be made conditional upon compliance with a relevant EPA noise guideline.
6. Thirdly, the final submissions made on behalf of the Simpkins sought a specific order that the mobile RC20 chipper be immediately removed from the site. On the last day of the hearing, the Buchholz' and the Kirleys advised that Mr Seaton had permanently removed that chipper. No enforcement order in relation to the RC20 chipper is thus required.
7. From the outcomes of the s 149B proceeding, it will apparent that I have found that:
   • only the 'Front Paddock' has an existing use right for the purpose of 'a timber mill for the production of sawn timber and firewood'. The use of the North Paddock (or potentially other parts of the balance of the land) for that purpose is unlawful in the absence of a planning permit.
   • the use of any part of the land for wood chipping, whether through use of a mobile chipper or otherwise, is unlawful in the absence of a planning permit.
   • the acoustic structure constructed in the North Paddock in March 2015 is unlawful in the absence of a planning permit.
8. It is appropriate that enforcement orders are made in relation to these matters, and my orders provide for this.
9. The Simpkins sought that any offending use or development cease immediately, although this was perhaps done with the aspiration that I would find that the use in the black-hatched area of the Front Paddock (the closest area to their residence) was unlawful. Instead, I have found on the evidence that it is the use of the North Paddock (furthest from the Simpkin's residence) that does not have the benefit of the existing use right, and that the acoustic structure in that paddock (designed to ameliorate noise to the Simpkin's residence) is unlawful in the absence of a planning permit.
10. Accordingly, I am not convinced as a matter of discretion that an immediate cessation of the offending use and development is the most desirable way forward, or that it really provides for the best planning outcome. Quite apart from the issue of the mobile chipper, an enforcement order having immediate effect would lead to other activities reverting to a more intense use in the Front Paddock - e.g. the wood splitter now operating in the North Paddock.
11. A large part of the hearing was taken up with evidence from the acoustic consultants for the Simpkins and the Buchholz'. I am indebted to the acoustic consultants for returning to the site between the two phases of hearing, in accordance with my orders, to conduct acoustic testing on the same day under the same conditions, and to prepare a joint report. Concurrent evidence was given by the acoustic consultants at the second hearing. As would be expected from the two firms involved (Watson Moss Growcott and Marshall Day), this led to a co-operative approach, objective agreement on most matters, and some valuable findings and recommendations. It is a pity the parties themselves had not adopted such a co-operative approach!
12. I do not need to recite all of the acoustic evidence in these reasons, particularly given the consensus reached by the two consultants at the second hearing. Their reports form part of the Tribunal file. It is perhaps useful to note:
    • with the acoustic fencing, gate and shelter constructed with a permit in 2014 near the Barwite Road frontage, and the relocation of some activities, all of the equipment currently used in the timber milling and firewood business (i.e. the various mills, saws, splitter etc., but excluding the chipper) now comply with the NIRV guidelines under the tested operating conditions, when measured at the Simpkin's dwelling. Compliance with the NIRV guidelines in this context means operating at or below the maximum recommended daytime limit under the guidelines.
    • any combination of up to five items of equipment used together (e.g. three saws and two loaders, but again excluding the chipper) will comply with the NIRV guidelines.
    • for compliance with the NIRV guidelines, the large chain saw must only be used within the acoustic shelter constructed near the Barwite Road frontage.
    • the wood splitter is not a major noise source when located in the North Paddock, and complies with the NIRV guidelines in the two locations where it has been tested. On the evidence of Marshall Day (for the Buchholz'), the wood splitter was not a major noise source when tested in 2013 in the central part of the Front Paddock, adjacent to the western boundary. There is no clear information on the use of the splitter saw, and Watson Moss Growcott (for the Simpkins) is 'not comfortable' with its use in the centre of the Front Paddock. This is the only material disagreement between the acoustic consultants.
    • the noise levels are unlikely to be materially higher if the gate at the eastern entrance is open, and will still comply with the NIRV guidelines.
    • without mitigation, the RC1824 mobile chipper being used in the North Paddock does not comply with the NIRV guidelines, when measured adjacent to the Simpkin's dwelling.
13. It is perhaps worth re-iterating that rural amenity, or residential amenity in a rural or farming zone, does not involve a pristine environment free of noise, odour or visual impact[41]. Expectations must be realistic, and the Simpkins are themselves farmers of their land. A 'sawmill' is a section 2 use in the Farming Zone and capable of being permitted. Although I do not have the power to enforce the NIRV guidelines in the absence of a specific planning control requiring compliance, I do consider that the NIRV guidelines provide a good basis for what reasonable and realistic noise expectations should be in a rural environment such as that in Barwite Road. Here, the agreed acoustic evidence is that those NIRV guidelines are met for all of the activities within the use that has the benefit of the existing use right, but are not met for the wood chipper that falls outside of that given purpose.
14. The only material issues relate to the wood splitter and the chipper. I do not consider that the Simpkins can have any legitimate concern about those operations that comply with the NIRV guidelines, notwithstanding that the noise may from time to time be annoying to them.
15. The wood splitter forms part of the use of the land for the purpose of 'a timber mill for the production of sawn timber and firewood'. It complies with the NIRV guidelines in the locations where it has been tested. These are in the North Paddock (some 340 metres from the Simpkins) where it technically operates unlawfully, and in the central west of the Front Paddock (still some 260 metres from the Simpkins) where it is lawful, albeit noisier. It would be beneficial if the Buchholz' and the Kirleys committed to operating the wood splitter no closer to the Simpkin's property, so that compliance with the NIRV guidelines was assured. I was surprised and dismayed that neither Mr Buchholz nor his advocate were willing to give a commitment about on-going compliance with the NIRV guidelines from any of their activities. Mr Kirley was more co-operative in this matter.
16. Alternatively, and perhaps even better, a consensus position could lead to a planning permit being issued for the timber milling and firewood business to also operate in the North Paddock, or in part of the North Paddock, to enable the wood splitter to continue to operate in that area, further away from the Simpkin's property.
17. The use of the chipper does not form part of the existing use right, and is thus easier to enforce and/or regulate. The agreed acoustic evidence was generally to the effect that the mobile chipper could be made to comply with the NIRV guidelines if the chipper:
    • is located in the North Paddock, and not in the Front Paddock.
    • is limited to the use of a single mobile chipper of no greater capacity or rated power level than the existing RC1824 chipper.
    • operates behind an acoustic structure of the general size and dimensions and location of the structure constructed in March 2015.
    • has the 'throat' of the chipper facing generally north, so that the main noise propagation is directed away from the Simpkin's residence.
    • operates for no more than 15 minutes in each 30-minute period.
18. The mobile chipper does not operate every day, but is only brought onto the land on a regular basis when there is timber to chip. I was not advised how often this occurs, but a limit could conceivably be imposed on the number of days or hours that the chipper could operate, on average - say, only on a weekday and for an average of no more than two days per week. This would give additional amenity 'protection' to the Simpkins.
19. It is not however for me to determine the longer-term outcome, in the context of the three proceedings before me. Unless a planning permit is ultimately issued for a wood chipping operation, the use of the mobile chipper must cease.
20. However, rather than make an enforcement order with immediate effect, I think it preferable that all parties have time to consider the decision in the s 149 proceeding about the extent of the existing use right, and for appropriate remedial action to occur within a defined timeframe, and for the enforcement order to only take effect if that remedial action does not occur.
21. In 2012, when VCAT considered the planning merits of the use of the site as a sawmill, it accepted that the use was supported by planning policy on many levels, and that there is capacity for the operation to occur on part of the Buchholz land with suitable measures to control off-site amenity and other impacts. The then proposal did not adequately address those impacts.
22. It may be that the Buchholz' and the Kirleys decide not to continue with the use of the land for wood chipping. It is not part of their business, but a separate business operated by Mr Seaton. If the chipper is no longer used, that most controversial (and currently unlawful) part of the operations will cease. If the Buchholz' and the Kirleys do wish to continue with a use for wood chipping, a planning permit would be required both for the use and the acoustic screen. The Council would then have the opportunity to consider the planning merits of any specific permit proposal. If the Council was minded to grant a permit, appropriate conditions could be placed on the permit to deal with any likely amenity impacts to the Simpkins - including conditions on the use of the chipper in accordance with the recommendations of the acoustic consultants, and to ensure compliance with the NIRV guidelines. The Simpkins could participate in that permit process, with an opportunity for mediation and review. Whether or not a permit was granted, the outcome would be clear, and enforceable.
23. I consider that a longer-term solution for the timber milling activities and firewood business also lies in a shift of the noisier activities to the North Paddock, rather than the reverse, subject of course to authorisation through a planning permit with appropriate conditions. That is consistent with the view expressed in the earlier VCAT decision in 2012. The site inspection on 8 May 2015 revealed that an expansion of activity into the North Paddock is already occurring, with the wood splitter now located there, albeit currently unlawful from a planning perspective.
24. It is difficult to know how long a period should be granted for this remedial process to occur, noting the time it takes to have any permit application prepared and processed and/or the time it might take to cease or change particular activities on the land that have commercial consequences for the Buchholz' and the Kirleys. Equally, the Simpkins are entitled to some finality, and future certainty, within a reasonable timeframe.
25. I consider six months from the date of my order is an appropriate balance, and I have included the date of 1 December 2015 in the enforcement order. Although I do not encourage it, that date could be extended by an application under s 121 of the Planning and Environment Act 1987, if the circumstances so justify. That would require a fresh application under that provision to vary the enforcement order.
26. As alluded to earlier, I have imposed conditions on the otherwise unlawful operations that may continue during this interim period. This includes giving effect to the recommendations of the acoustic consultants in relation to the use of the chipper, and an additional restriction limiting use of the chipper to no more than two days per week (on average) during this period.

1. Although I have reached my opinion independently on the evidence, I note that the position I have reached on the extent of existing use rights is not dissimilar from the position ultimately reached by the Council in its submissions at the hearing, in its capacity as responsible authority for the administration and enforcement of its planning scheme. That is comforting in a complex matter such as existing use rights, where even reasonable minds can sometimes differ. My differences with the Council position are in the refinement of the characterisation of the use (but with the same general intent), and the finding that the existing use right does not extend into a small undefined area of the North Paddock (but is only established in the Front Paddock).
2. Contested proceedings about existing use rights are almost always complex, particularly when a right is established under the 15 year rule following a period of unregulated and otherwise unlawful use. Often, as perhaps here, the parties in dispute have an unrealistic expectation that VCAT's jurisdiction can be used to resolve all of the underlying planning tensions created by the establishment of an existing use right. However, VCAT does not exercise a general discretion to restrict or modify an existing use right at will, on the basis of what it thinks is fair or necessarily the best planning outcome. VCAT must still decide the applications according to law, and within the limitations of its jurisdiction. The existing use right is what it is.
3. Where part of the use falls outside of an existing use right, the enforcement proceeding does however present an opportunity to exercise VCAT's jurisdiction with a pragmatic eye to a longer-term solution. It is up to the parties as to whether they take the next steps towards that solution over the next few months. If they do not, the enforcement orders will take effect.
4. It is time for the Buchholz', the Kirleys and the Simpkins to put aside their acrimonious dispute, and look to how they can re-establish a co-operative relationship for the future that recognises and respects the reasonable rights, needs and amenity of the other. The Council also has a continuing role to play in facilitating the best planning outcome.

[2] Simpkin v Mansfield SC [2012] VCAT 1433 per Potts M & Wilson M

[4] Mark Bartley of HWL Ebsworth. The two letters of advice were filed in the proceeding.

[5] Planning and Environment Regulations 2005 r 45(1) and Form 14

[6] The relevance of the date in May 2003 is that this was the time when the Mansfield Planning Scheme was amended to require a planning permit for buildings and works for a section 2 use in the zone. Prior to that time, it was contended that relevant buildings and works did not require a permit. However, this might be queried by reference to clause 63.05 of the planning scheme, which requires that the construction of any buildings and works associated with an existing use requires a permit.

[7] Late in the hearing, the Simpkin sought to amend the s 97Q application to seek cancellation of the certificate of compliance, rather than its amendment.

[9] There was evidence that Mr Seaton had previously undertaken wood chipping on the land 'once or twice a year' from 2009, to fill small customer orders for Mr Buchholz and using a small 12 inch chipper, but the large chipping operation did not commence until August 2014.

[10] The Barwite Timber Mill 'Feature Survey Plan' (Plan MCS1302) prepared by Mansfield Consulting Services, Revision 2 dated 30 January 2015. Other copies of this plan were also filed, indicating the position where photographs had been taken, and showing the location of the acoustic screen constructed in March 2015.

[11] [2011] VCAT 2317 per Dwyer DP at [20]-[28]

[12] [2014] VCAT 396 per Gibson DP

[13] Nightingale Vin v Latrobe CC [2009] VCAT 1676

[14] [2011] VCAT 2317 per Dwyer DP at [84]-[164]

[15] [1985] VicRp 64; [1985] VR 641, at 644. This quote was also adopted and endorsed in Stonnington CC v Southern Property Corporation Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [19] per Osborn J.

[16] [1964] HCA 37; (1964) 110 CLR 529

[17] In Greater Geelong CC v Geelong Markets Pty Ltd [2004] VCAT 781, Morris P indicated that cl 63.02 was a summary of what would otherwise be the position at common law. See also Stonnington CC v Southern Property Corporation Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [20] per Osborn J.

[18] City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 at 644, following Dorrestijn v SA Planning Commission [1984] HCA 76; (1984) 56 ALR 295 at 300, Parramatta CC v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 25, and Woollahra MC v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 at 144.

[19] [2009] VSC 301 at [11] per Pagone J.

[20] Buchholz written submissions at para [3.12] and [3.14]

[21] Statement of Agreed Facts dated 2 March 2015

[22] [2006] VSC 435 at [31] per Osborn J.

[23] To interpret it otherwise may also offend s 6(3) of the Planning and Environment Act 1987.

[24] [2008] VSC 294, particularly at [30] - [35] per Kyrou J.

[25] following Parramatta CC v Brickworks Ltd [1972] HCA 21; (1971-72) 128 CLR 1; Eaton & Sons Pty Ltd v Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270; City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 644-5; see also Stonnington CC v Southern Property Corp Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [25] per Osborn J.

[26] Harrington at 644-5, expressly following Eaton & Sons at 281

[27] e.g_. Parramatta CC v Brickworks Ltd_ [1972] HCA 21; (1971-72) 128 CLR 1 at [22]

[28] See case references in earlier footnote

[29] e.g. Photographs 8, 8A, and 24-27 inclusive of the photographs tendered by the Buchholz' and with the location plotted on the survey plan.

[30] This is evident, for example, from photographs 4, 6, 7, 9 10, 11, 13 & 30, of the photographs tendered by the Buchholz' and with the location plotted on the survey plan, all of which date from 1999 on the evidence of Mr Buchholz.

[32] [1972] HCA 33; (1972) 129 CLR 270

[35] [1964] HCA 37; (1963) 110 CLR 529, 534-5; see also Harrington at 644-5.

[36] e.g. Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83, 86 per Mason J.

[38] Rockdale Municipal Council v Clark (1982) 47 LGRA 159, 160-1. In that case, the lighting of tennis courts for night use was held not to be a new purpose of use, even though different and extended amenity impacts were created. See also Johansson v Glen Eira CC [2005] VCAT 1242 at [15].

[39] Mr Kirley produced an iPhone photo taken on 28 August 2014, showing the arrival of the RC20 chipper. This is preferable to Mr Seaton's more general evidence of a date of 'around' October 2014, (given without the benefit of having his diary) and Mrs Simpkin's evidence that a chipper truck started coming twice a week sometime in the 5 months prior to her statement in September 2014..

[40] This same wording appears in a letter from the Simpkin solicitor to VCAT dated 28 May 2014, and in a similar letter dated 10 July 2014 attached to the s 97Q application, and in the Simpkin written submissions to VCAT in October 2014. The Simpkin solicitor essentially confirmed this is it amended grounds referred to in its letter to VCAT dated 2 February 2015.

[41] see for example Goddard v Baw Baw SC [2003] VCAT 251 per O'Leary M