Victorian Civil and Administrative Tribunal|2001-02-28|Before: Mr P

The application is refused. The Tribunal upholds the decision of the Responsible Authority and directs that no permit issue.

Mr P Barber of Deacons appeared for the Responsible Authority.

Mr Mark Dreyfus QC, instructed by Peter Lustig, Solicitor, appeared for the Applicant.

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by Sorrento Apartments Pty Ltd to review a decision of the Mornington Peninsula Shire Council ("Council") to refuse a permit for the construction of a six unit integrated development on 2 back to back lots, one at 11 Albany Court, and the other 14 Bowen Road, Sorrento.

2. Mr Attiwill raised the preliminary question that the Applicant is not the owner of the Albany Court lot which is registered in the name of Maureen Anne Tighe, and he referred to Section 47 of the Act which requires that if the permit applicant is not the owner of the land for which the permit is applied, a permit application must be:

(b) include a declaration by the applicant that the applicant had notified the owner about the application.

3. He submitted the Applicant had not complied with this requirement which is mandatory and a failure to comply makes the application for permit invalid, although he conceded the defect may be cured by the Tribunal pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") by the Applicant providing a signature or declaration to the Tribunal.

5. Mr Dreyfus advised that Mrs Tighe holds that land as trustee for Sorrento Apartments Pty Ltd and was in a position to produce a declaration of trust.

6. Mr Attiwill accepted this assurance and conceded that this Company was the beneficial owner of the land.

7. The Applicant proposes to demolish the existing six single storey dwellings and construct in their place six double storey detached dwellings for the purpose of short and long term rental accommodation. Mr Tighe intends to reside in one of the new dwellings at 11 Albany Court and to allow his family to the adjacent new dwelling at 11 Albany Court when not used for rental purposes, an arrangement similar to his use of the existing 2 buildings at that address.

8. The permit Applicant will own and continue to manage the use of dwellings on the land although it was proposed that the land will be subdivided with each dwelling on a separate title.

9. The Report of Ms Sandra Rigo, of Hansen Partnership, who gave evidence for the Applicant described the proposal as follows:

"â the demolition of the existing single storey fibro-cement dwellings:

â construction of 5 double storey, two bedroom, weatherboard dwellings (Units 1-5) with vehicular access from Albany Court;

â construction of 1 double storey, three bedroom, weatherboard dwelling (Unit 6) with vehicular access from Bowen Road;

â all dwellings will be painted in muted tones taken from Dulux Master Palette Range, with complementing Colorbond pitched roofing in various grey tones.

â Construction of a formal crossover to Albany Court and driveway servicing Units 1-5 along the south western boundary of the site;

â Construction of a driveway and double car garage on the south-western boundary for Unit 6 accessed via a new crossover in Bowen Road;

â The provision of 9 car parking spaces for dwelling for Units 1´-5 (in the form of carports and tandem spaces);

â Construction of driveways using exposed aggregate concrete with White River Pebbles;

â Excavation and fill generally below 1m except for the northern corner of Unit 2, where a 1.5m cut is required and along the boundary in this area;

â Removal of vegetation along south-western boundary to allow for construction of the driveway and re-landscaping along boundary using native vegetation;

â Landscaping along boundaries and throughout the site, including trees with spreading crowns, as detailed in Landscape Plan (Ref No: 99214, Sheet 3/3);

â Provisions of separate private open spaces for each unit, varying between 62 and 220 square metres;

â A maximum of two storeys and building height of 8m;

â A building setback of 7.5 metres to Albany Court;

â A building setback of 8 metres to Bowen Road (6.5 metres to verandah);

â A minimum 2.4 metre setback of buildings from the north eastern boundary; and

â A minimum 1.5m setback of the Unit 6 garage from the southwestern boundary, and a minimum dwelling setback of approximately 5.1m."

10. Also her report describes the subject site as follows:-

"The subject site comprises two titles, Lots 1 & 2 LP 7560, also known as 14 Bowen Road and 11 Albany Court.........The subject site is located in close proximity to the Sorrento Township, approximately 500m from the centre of the township and approximately 200m south west of the Sorrento Front Beach. The site is situated between Point Nepean Road to the North-east and Newton Avenue to the south-west. It extends from Bowen Road through to Albany Court, providing dual frontage.

Access to the site is via Bowen Road and Albany Court, both of which are sealed roads. Bowen Road services a large number of residential properties between Point Nepean Road and Melbourne Road. Albany Court provides access to approximately ten properties.

The site is rectangular in shape with two frontages measuring 22.53m. The site is 92.94m in length, yielding a site area of 2,093.94m2.

My inspection of the site and its surrounds revealed the site is located in a pocket of gently undulating land. The site has a pronounced 2 metre rise from the Albany Court boundary to the proposed location of Unit 1. There is a 1m fall near the northeastern boundary, adjacent to 12 Bowen Road and two retaining walls from where the site rises to a knoll on 9 Albany Court.

There is some limited established vegetation located along the side boundaries of the site. The Albany Court frontage contains an established tree. There is no boundary vegetation at the Bowen Road frontage as this area is currently used as an informal car park. Open lawn and some small shrubs are situated in the Bowen Road frontage. Some of the existing vegetation will be retained and new landscaping will be provided as per the landscape plan.

â Four single storey attached fibro-cement dwellings located on the lot fronting Bowen Road and two attached fibro-cement dwellings located on the lot fronting Albany Court;

â A small area of lawn at the Bowen Road frontage used as an informal car park for residents with direct, unconstructed access from Bowen Road.

â An existing crossover and unconstructed driveway providing vehicle access from Albany Court to the two dwellings on 11 Albany Court; and

â Open communal lawn area surrounding the dwellings and an informal garden setting.

The current use of the land is mixed but residential in nature. There are 6 dwellings on the land. According to the Council Officer's report, the buildings have existing prior to 1967. From my inspection of the site, the form and style of the fibro-cement buildings are typical of the 1960s holiday style development evident throughout the Peninsula.

The existing dwelling at the front of Albany Court is presently used as a permanent residence by Mr D Tighe. Mr Tighe also conducts his accountancy business from this dwelling. The attached dwelling is used occasionally by Mr Tighe's family. The remaining four dwellings are rented for short and long term accommodation. Mr Tighe resides on the land and manages the use of the land on behalf of the permit applicant.

12 Bowen Road adjoins the subject site to the north-east and comprises of a single storey, white weatherboard dwelling and garage (located to the rear of the site). The relative floor level of the dwelling is located approximately one to two metres lower than the floor level of the existing buildings at 14 Bowen Road due to the fall of the land. The historically significant North Esk building is located further north-east and visually dominates the locality because of its significant size and location of a relatively higher level than surrounding properties.

9 Albany Court adjoins the subject site to the north-east and shares a rear boundary fence with 12 Bowen Road. It comprises a large double storey timber dwelling, setback approximately 20 metres from the street and sited on a knoll, creating another dominant element in the immediate landscape.

Adjoining the subject site to the south-west are the rear of five properties which front Newton Avenue. The dwellings at property numbers 26, 28, 30 and 32 are single storey with a mix of brick or weatherboard construction. 34 Newton Avenue has frontage to both Newton Avenue and Albany Court and contains a split-level dwelling with undercroft car park.

The surrounding area is generally characterised by both single and double storey dwellings in a variety of styles, ranging from small cottages to substantial two storey homes. Many of the two storey dwellings are located on prominent positions of the land to capture Bay views."

11. There is a debate as to whether the existing buildings are "dwellings" as Mr Barber submitted they were only partly "self contained" in that some facilities such as sewerage, hot water and gas are shared and access, car parking, laundry and open space areas are in common use.

12. The land is within a Residential 1 Zone under Clause 32.01 of the Mornington Peninsula Planning Scheme. Under the Zone "Dwelling (other than bed and breakfast)" is a Section 1 as of right use. "Accommodation (other than a Dependent person's unit and dwelling)" is a Section 2 use requiring a permit.

13. Under Clause 32.01-4 a permit is required (inter alia) to construct two or more dwellings on a lot, and under that Clause, in addition to the decision guidelines in Clause 65, the Responsible Authority must consider as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and Local Planning Policies.

* Good Design Guide for Medium Density Housing No 2, April 1998 and any local variation incorporated in this scheme.

14. The land is also subject to the Vegetation Protection Overlay in Clause 42.02 of the Scheme, under which (Clause 42.02-2) a permit is required to remove, destroy or lop any vegetation specified in a schedule to this Overlay. However the Responsible Authority concedes that no significant vegetation removal is involved in this application but the Council's policy is to seek landscaping of the site.

15. The land is also subject to the Design and Development Overlay ("DDO") in Clause 43.02 of the Scheme.

16. Under Clause 43.02-2 a permit is required to construct a building or construct or carry out works unless a schedule to the overlay specifically states that a permit is not required.

17. Clause 43.02-5 of the DDO contains decision guidelines.

18. Schedule 3 to the DDO relates to Coast and Landscape Design and Clause 1.0 sets Design Objectives.

19. Clause 2 of that Schedule contains a general provision that no permit is required to construct dwelling extensions, alterations or outbuildings or construct or carry out associated works providing certain following requirements set out in the Clauses are met and a permit may be granted to vary these requirements.

20. However Clause 2 of Schedule 3 also later specifically provides:

"No more than one dwelling, excluding a dependent relative unit, may be constructed on a lot. This requirement cannot be varied with a permit."

(a) prior to the approval of the new format Planning Scheme on 6 May 1999 the subject land was within a Clifftop Residential Zone under the Flinders Planning Scheme, in which the house was a Column 2 permit required use, but Housing Use and Group Uses were prohibited,

(b) this zone was first introduced to Amendment No 200 after a 2 year public submission process. An independent panel recommended in 1984 that "multi dwelling units would require a permit and will be confined to the Bayside Urban, Bayside Residential 1 and Village Residential 1 Zones whilst dual occupancy and Group House would be possible also in the Bayside Residential Zone. The Panel does not consider that these forms of usage should be extended to other zones.",

(c) because the Ministerial direction on the Format and Content of Planning Schemes did not permit the new planning scheme to retain an equivalent of the Clifftop Residential Zone, it was necessary to have essential elements of the prior zoning included in the DDO Schedule 3.

22. Section 6(3) of the Act and Clause 63 of the Planning Scheme is relevant as the Applicant is claiming existing use rights permit the redevelopment of the property.

23. The Responsible Authority's reasons for refusal were:

"1. The proposed development and use will cause substantial material detriment and loss of amenity;

2. The proposal will significantly impact on the amenity of the streetscape and adjoining properties;

3. The existing use rights do not extend to having six separate dwellings but only apply in so far as group accommodation in the form of holiday units use for temporary accommodation of holiday residents;

4. The proposed development will substantially and irrevocably alter the existing low density character of the area;

5. The proposed development fails to provide satisfactory carparking for all dwellings;

6. The proposal is an over intensive development and use of the land and is not serviced by suitable sewerage and drainage infrastructure;

7. The proposed development is prohibited by the current planning controls that apply to the land.

8. The proposed development will generate a substantial increase in material detriment to residence in Albany Court through a disproportionate increase in traffic and noise; and

9. The proposal does not meet the objectives of the Design and Development Overlay Schedule 3."

24. The Respondents called Mr Alastair Kellock of Alastair Kellock and Associates, Town Planner to give evidence.

25. Mr Dreyfus called Mr Daniel Tighe and Ms Sandra Rigo, Town Planner of Hansen Partnership to give evidence.

26. The Tribunal has conducted a view of the land and the surrounding area.

27. The principal issue in this matter is whether the development is prohibited by the provision in Clause 2 of Schedule 3 to the DDO prohibiting the construction of more than one dwelling on a lot, or whether the Applicant's existing use rights extend to a right to redevelop the 2 lots as proposed and override that provision.

28. It is common ground that Section 6(3) of the Act, sets a minimum level of protection of existing use rights, providing instances of use and the continuance of use which shall not be prevented by a planning scheme.

29. It is also common ground that Clause 63 of the Planning Scheme may confer existing use rights beyond the ambit of the protection afforded by Section 6(3).

30. It is not contended by the Council or the Responsible Authority that the Applicant's existing use of the existing buildings on the land is not protected by Section 6(3) or Clause 63.

31. It is useful at this point to set out Clauses 63.01 to 63.05, 63.08 and 63.10 to 63.12 of the Scheme:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

* The use was lawfully carried out immediately before the approval date.

* A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

* A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

* Proof of continuous use for 15 years is established under Clause 63.11.

If the 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.

63.04 Section 1 uses

A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met.

63.05 Section 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 and which applies to the use in Section 2 of the zone continues to be met. This includes any implied restriction on the extent of the land subject to the existing use eight or the extent of activities within the use.

* The amenity of the area is not damaged for further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights."

63.10 Damaged or destroyed buildings or works

If at least 50 percent of the gross floor area of a building or at least 50 percent of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with this scheme, unless a permit is granted to continue the use, and to construct or carry out buildings or works.

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.

Before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the Responsible Authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met."

(a) that the provision in Schedule 3 of the DDO that

"no more than one dwelling excluding a dependant relative unit, may be constructed on the lot. This requirement cannot be varied with a permit,"

(b) Clause 63.04 confers the right to continue the existing use and overrides any use controls in the planning scheme which are inconsistent with that right (see Section 7(4) of the Act), and referred to the definition of use in the Act as:

"Use" in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed."

(c) The DDO 3 provision is a control on use, not a control of development and that it prohibits the use of a lot for more than one "dwelling", exempts from the prohibition another type of use, "dependent relative unit" and that references to the definition in the scheme confirm these are uses.

33. The Council and the Respondents to the application to the contrary submitted that this provision was not a control on "use" but a control on development and submitted that it did not prevent the continuance of the use of the land for more than one dwelling in the existing buildings constructed on the site.

34. The Tribunal does not accept Mr Dreyfus's propositions that the control in DDO 3 is a control on "use" rather than "development" and considers it is not inconsistent with Clause 63 for the reasons submitted by the Council and the Respondents. The terminology of the control refers to construction of more than one dwelling, which must be regarded as a reference to development, and does not impose any restriction on the current use of the 6 units on the land. It is true to say that the inability to construct more than one dwelling per lot ultimately prevents the lot being used for more than one dwelling, but the wording of the control is that of a control on development, not on use.

Intensification Cases - Does "Use" include "Development"

35. Mr Barber submitted that the implication there is some kind of existing development right which may be prevailed upon is a concept totally foreign to planning law in Victoria.

36. Mr Dreyfus contested this proposition and submitted it has been long established that an intensification of, expansion of or alteration in the method of carrying out an existing use does not alter the nature of the use, and he referred to a number of cases:

* Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83 at 86,

* Parramatta City Council v VV & F Martelli & Co Pty Ltd [ 1997] 2 NSWLR 818,

* City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 at 645,

* Dorrestijn v SA Planning Commission [1984] HCA 76; [1984] 54 LGRA 99 at 105,

* Woollahra MC v Banool Developments Pty Ltd (1973) 129 CLR 134 at 144,

* Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, andRoyal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310.

37. In Parramatta City Council the issue was an expansion in the area of a shop/mixed business activity. The premises had shortly before the application been "blown up" and the permit applicant proposed to demolish the existing buildings and erect larger modern retail premises. The Court upheld the right to increase the degree of use as between the existing use of the existing building and the proposed use of the new building and held that this was not a change of use. However that it was conceded between the parties that "development" consent for the construction of the new buildings was not necessary for such use, and Mr Barber referred to the specific provision in the planning ordinance referred to at page 21 of the decision of Justice Gibbs conferring the right to alter, enlarge, rebuild, extend or add to an existing building.

38. Shire of Perth v O'Keefe involved the expansion of an existing non-conforming use which was not permitted in the current zone. The High Court held that the land might continue to be lawfully used for pottery making but not for the purposes of any other activity within the category of light industry. However the issue of development rights for the construction of additional or replacement buildings was not the subject matter of the decision. It solely dealt with the continuance of non-conforming use rights and their categorisation. The decision is reflected in Clause 63.02 of the Planning Scheme which requires that "the use is to be characterised by the purpose of the actual use of the relevant date and not by the classifications in the definitions to the planning scheme or in Section 1, 2 or 3 of any zone."

39. Royal Agricultural Society contains the much quoted passage at pages 309 to 310 referred to by Mr Dreyfus and this Tribunal accepts the principles in that passage. However there is nothing in the passage that refers to construction of buildings or development of property being included in the concept of use. The subject matter of the decision was whether the holding of open air concerts was within the existing use rights of the showgrounds and did not involve the construction of works.

40. City of Nunawading v Harrington related to the use of premises for a bakery, and pages 664 to 645 of the decision set out concisely the principles applicable to the continuance of non-conforming existing use rights and confirmed:

"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."

However there is nothing in the decision which refers to or supports the proposition that existing use rights per se include a right to redevelop the property. The decision refers to the facts under consideration at page 646 as follows:

"the subject land and improvements remain substantially in the same physical state, which may fairly be described as a bakery."

41. In Woollahra Municipal Council v Banool the general principle of continuance of existing use are discussed but the High Court overturned a decision of the Supreme Court of New South Wales which allowed the redevelopment of existing shops in circumstances where Section 309(2) of the Local Government Act 1919 (NSW) at the time not only allowed the continuance of the use of any building for any purpose for which the same was used immediately before the date of the proclamation but also:

"the alteration, enlargement, rebuilding or extension of any building use for such purpose....."

Redevelopment was not permitted by virtue of an extension of the concept of use but by specific statutory provisons.

42. Dorrestijn and Norman v Gosford are decisions where the adoption of the intensification principal was accepted in existing use rights situations which involved work on the land. The appellants in pursuit of farming purposes cleared land not only of scrub regrowth since a bush fire but also of trees surviving the fire. The High Court upheld the right of the appellants to do so. However the decision relied on an interpretation of Section 56 of the Planning Act 1982, applicable in that case, which provided that:

"(1) Notwithstanding any other provision of this Act, no provision of the Development Plan shall:

(a) prevent the continued use, subject to and in accordance with the conditions (if any) attached to that use of land for the purposes for which the land was lawfully being used at the time the provision took affect, or

(b) prevent the carrying out or completion of a development, subject to and in accordance with the conditions (if any) affecting the development for which every consent, approval or authorisation required under any act authorising or permitting the development had been obtained and was current when the provision took affect."

43. The conclusion of the majority was stated at page 105 as follows:

"The competing interpretation is that "continued use" in s56(1)(a) and "development" in s56(1)(b) are not mutually exclusive concepts and that the content of "continued use" includes such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. This interpretation is to be preferred. It gives s56(1)(a) a role to play which is appropriate to its position in the subsection in association with s 56(1)(b) as a transitional provision which is designed to protect a continuing use in the broad sense. It gives primacy to the protection of a continuing use on the footing that it is necessary to invoke the protection given by par (b) to development in the defined statutory sense only in the event that the development is not one which is embraced by the concept of continuing use. And it conforms to the principle of construction that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 25; [1972] HCA 21; 26 LGRA 437; Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 at 144; 27 LGRA 396."

44. Norman v Gosford Shire Council involved the removal of top soil and filling and a substantial increase in production which was not prohibited by the relevant controls at the relevant times. The Responsible Authority brought an action to restrain the use of the land for this purpose on the ground that its consent to the use of the land for an extractive industry had not been obtained and the Court held that both before and after the relevant time the use to which the land was put was the removal of top soil and filling and the nature of the use had not been altered by an expansion in production or a change in the method of production or because excavation brought about a change in the appearance of the land. Accordingly the land was being used for the "existing use" to which it was put on the stipulated date and the consent of the Responsible Authority was not required.

45. Mr Dreyfus submitted that these cases and particularly Dorrestijn and Norman v Gosford Shire Council supported the proposition that the concept of "use" inherently included "development" for the purposes of continuing that use.

46. However Mr Barber submitted that the nature of the use in Norman v Gosford Shire Council involved "working" or "excavation" of the land in the same way as Dorrestijn involved working on the land, and accordingly these cases should not be used as authority for a general proposition that an existing use right inherently included the right to further develop a property by the construction of buildings.

47. Mr Attiwill for the Respondent/Objectors supported Mr Barber's contention that the nature of an existing use right under the Act and the Scheme did not purport to give owners or developers of land "development rights" and he referred to a number of texts which supported that proposition.

* Planning and Environment Victoria at paragraphs 22,036, 22,041 and 22,106

* The New Planning System in Victoria by Julia Bruce (1998), [a Deputy President of this Tribunal] which on page 23 in discussing the meaning of "use" referred to the decision of the High Court in Nancy Shetland Pty Ltd v MMBW (1974) 48 ALJR 448 and said

"in that case the appellant had acquired a large parcel of land for the purpose of subdivision and sale. The first stage was subdivided and sold. Tentative approval was given to the next stage, and a road was laid out and formed; then an interim development order came into effect.

The statutory definition of "use" was no help to the appellant. The Court found that "use" did not extend to "development" or "subdivision", both of which were separately defined."

48. Mr Attiwill referred to Tribunal decisions which supported the proposition that the protection of existing use rights did not extend to development that would ordinarily require the obtaining of a permit (e.g., White v Shire of Ballan 4 PABR 272).

49. Rather than deal with general principles, most of these cases deal with existing use rights in the context of particular legislation in each case and it is my view that the decision in each case is limited by that legislative context, leading to the conclusion that the Tribunal's task in this matter is to consider the Act and the Planning Scheme applicable to ascertain whether the existing use right provisions can be interpreted to find a right to redevelop attaching to existing use rights even though it is otherwise prohibited by the scheme. I accept Mr Barber's submissions as to distinguishing Dorrestjin and Norman v Gosford, and these decisions do not discuss the uses in the language of "development" or "construction", but onlu in terms of "use. Section 6(3) is insufficient, and it is necessary to review the provisions of Clause 63 of the scheme.

50. I consider that these decisions do not justify an extension of the concept of "use" per se to imply a right of redevelopment for the purposes of carrying on an existing use right, and therefore in interpreting Clause 63 "use" must be given the definition it has in the Act, which does not include development. To find that Clause 63 permits a development otherwise prohibited by the scheme in my view requires express provision in sufficient terms to override the prohibition, as discussed below.

51. Whilst the use in this case was lawfully carried out immediately before the approval date and proof of prior continuities for 15 years is established, Clause 63.01 only refers to use and does not permit further development.

52. As "dwelling" (other than bed and breakfast) is a Section 1 use in a Residential 1 Zone, Section 63.04 is applicable to this case. However for the reasons stated above it only refers to "use", and once the proposition theat "use" inherently includes "development" is discarded, there is no specific reference in the clause from which to establish or imply any right to redevelopment.

53. This Clause of the Scheme only applies if the use is in Section 2 or 3 of a zone for which an existing use right is established. This is not the case and accordingly the clause is not applicable. However if it were, the conditions set out in the Clause for the continuance of the existing use rights are not satisfied. The first dot point is that no buildings or works are constructed or carried out without a permit. A permit must not be granted unless the buildings or works comply with any other buildings or works requirements in this scheme. In this case the schedule to DDO 3 prohibits the grant of a permit for the buildings in question. The third dot point, namely that 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 is not satisfied. The new dwellings will be two storey dwellings and as a consequence of this there will necessarily be some damage to the amenity of the surrounding properties. The condition is not concerned with the extent of the damage, it is merely sufficient that there is some damage. Accordingly the third condition would prevent the application of Clause 63.05. The clause operates on the basis that development of land subject to existing use rights is subject to the scheme, not that the existing use rights override the need to comply with the scheme, underpinning the proposition that the reference to "use" rights in the Clause does not extend to development or construction of buildings.

54. This Clause is not applicable because it only applies if a permit is sought for an alternative use which is not the case in this matter.

55. In my view this Clause underpins the the proposition that the reference to "use" rights in the Clause does not extend to development or construction of buildings inherently under Clause 63, except when development is expressly authorised, because it regulates when buildings may be reconstructed if they are damaged or destroyed. The Clause has the effect that if at least 50% of the gross floor area of a building or of the area of any works is damaged or destroyed so the use cannot continue, then the land must be used in conformity with the scheme unless a permit is granted to continue the use or to construct or carry out the buildings or works. In this case the proposed development involves demolition of all the buildings, and thus would require a permit in conformity with the scheme..

* The existing use rights referred to in Clause 6(3) of the Act and in Clause 63 of the scheme do not extend to the development of six new buildings on the site,

* There is no inconsistency between the prohibition in the schedule to DDO 3 and Section 6(3) of the Act and Clause 63 of the scheme.

* The prohibition in the schedule to the DDO 3 prohibits the construction of the six units.

For these reasons alone the application should be refused, and it is not necessary for me to address the other grounds of refusal.

Local Government Act 1919(NSW)

Environment Act 1987

Sorrento Apartments v Mornington Peninsula SC [2001] VCAT 367 (28 February 2001)

Sorrento Apartments v Mornington Peninsula SC [2001] VCAT 367

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)

Sorrento Apartments v Mornington Peninsula SC [2001] VCAT 367 (28 February 2001)