After the hearing of these matters I made orders on 31 October 2013 refusing both applications. I have since noticed an accidental slip in paragraph 128 of the reasons. Orders 1 and 2 on the first page of the determination are correct but section 117(6) of the Victorian Civil and Administrative Tribunal Act 1998 provides that the reasons for an order, whether oral or written, form part of the order. As the current wording achieves the opposite of what was intended it is appropriate to make the correction substituting the word "certificate" for "declaration". The intended meaning was always that a certificate is not the appropriate remedy for difficult, doubtful and contentious cases. On the contrary, a declaration is the appropriate remedy in those circumstances.

1. In relation to declaration application P1658/2013, the application is refused and no declaration is made.
2. In relation to application P1657/2013 for review of the decision of the responsible authority to refuse to grant a Certificate of Compliance, that application is refused and the decision of the responsible authority to refuse to grant a Certificate of Compliance is affirmed.

Ms Teresa Bisucci, solicitor of the firm Best Hooper, solicitors, appeared for the applicant, Studley Park Developments Pty Ltd. She presented written and oral submissions and called two witnesses who gave sworn evidence. They were Joanna Kordos and Gary Kyriakos Kyriacous. They gave oral evidence and adopted the contents of statutory declarations. Ms Bisucci also tendered a statutory declaration of Monica Davidovitz

Ms Adeline Lane, solicitor of the firm of Maddocks, solictors, appeared for the responsible authority. She presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under section 149A of the Planning and Environment Act 1987 for a declaration

Application under section 97P of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a Certificate of Compliance

Declaration that the land has existing use rights for use as a dwelling

A Certificate of Compliance under section 97O of the Planning and Environment Act 1987 certifying that the use of the land as a dwelling complies with the Yarra Planning Scheme

Commercial 2 Zone and subject to a Design and Development Overlay (Schedule 2) under the Yarra Planning Scheme. The land was previously in a Business 3 Zone and prior to that a Light Industrial Zone

Lots 1 and 2 on Plan of Subdivision No. 30241 being the land and Certificates of Title Volume 8065 Folios 456 and 457

A parcel of two adjoining rectangular allotments of land located on the southwest corner of the intersection of Studley Street and Hoddle Street, having a frontage to the south side of Studley Street of approximately 30m and to the east side of Hoddle Street approximately 9.6m with an overall area of approximately 288m²

City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139

Manningham CC v Treefern Nominees Pty Ltd (Beasleys) [2008] VCAT 1104 at [63]

City of Northcote v El Alam (1993) 13 AATR 28 (where the case is misnamed City of Northcote v Alam)

El Alam v Byard & Northcote CC (1994) 13 AATR 355

VBI Properties Pty Ltd v VCAT & Port Phillip CC [2001] VSC 22

Brickworks v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568

Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1QB 416

McDonald v Nillumbik SC (2000) 5 VPR 311; [2000] VCAT 772 at [10]- [15]

Logie v Campaspe SC [1999] 2 VPR 54 at [85]; [1999] VCAT 431

Diamond Waters Pty Ltd v Melbourne CC [2010] VCAT 419 at [64] - [66]

1. Each of these two proceedings raise a single issue. That issue is as to whether land known as 1A and 1B Studley Street, Abbotsford enjoys existing use rights for the use of the land as a dwelling.
2. Existing use rights were originally to enable the continuation of a land use commenced lawfully before the imposition of a restricting or prohibiting planning scheme provision. The continuation of such rights, where they exist, is subject to certain provisos. Originally there always had to be a lawful commencement and continuation of the use.
3. Clause 63 of the Yarra Planning Scheme contains its provisions in relation to existing use rights. It is common ground, in this case, that there is no existing use right based on lawful commencement and continuation. Rather, reliance is sought to be placed on more recent provisions found in clauses 63.01 and 63.11 of the planning scheme.[1]
4. These relatively new alterations create what is commonly referred to as the "fifteen year rule". In contrast to the original concept of existing use rights, these provisions endow existing use rights on illegal use of land, such as use for a purpose prohibited under the planning scheme, provided that the illegal user is able to establish that the use has been carried on continuously for fifteen years.
5. This case[2] raises the question of whether this land has acquired existing use rights for its continued use as a dwelling on the basis of fifteen years or more of illegal use for that purpose.
6. Studley Street Developments Pty Ltd (the company) now owns the land and it claims existing use rights based on the fifteen year rule. That proposition is not admitted or agreed to by the responsible authority.

1. There is plentiful authority for the proposition that the onus of proof in relation to the existence of existing use rights is borne by the party who asserts the existence of such rights. It is common ground between the current parties that this is the correct approach so I will proceed on that basis without going into those authorities. Apart from the attitude of the parties, I am satisfied that this proposition, that the onus of proof lies with the person who asserts the existing use rights, is correct. It was also submitted that the standard of proof is on the balance of probabilities.

1. Clause 63.01 lists the means by which existing use rights may be established. The list therein includes:

"Proof of continuous use for 15 years is established under clause 63.11"

1. Clause 63.11, so far as presently relevant, provides:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 96N 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 on continuously for 15 years prior to the date of the application or proceeding."

1. The burden of persuasion, in this case, clearly rests with the company. If I am not satisfied to the necessary standard, these applications must fail. Something more than my being left in trembling, even the balanced, doubt; is required.
2. It will be necessary to assess the evidence available in relation to the history of the use of this land for the purposes of ascertaining whether, on the facts, and to the necessary degree, the circumstances creating an existing use right can be established. In this connection findings of fact rather than law will need to be made.

1. The company has brought two applications in relation to this question. The parties in each proceeding are the same with the company being applicant and the responsible authority being the respondent.
2. In proceeding P1657/2013 it has applied for a review under s 97P of the Planning and Environment Act 1987 (PE Act) of a decision of the responsible authority to refuse to grant a Certificate of Compliance under s 97O PE Act as to the existence of the existing use rights sought. This, of course, raises the question of the existence of the alleged existing use rights, but so does the second proceeding, P1658/2013. The second proceeding is an application to this Tribunal, not by way of review, but as an original application, for a declaration that the alleged rights exist.
3. The essential issue in each of these proceedings is identical. There are certain doubts and difficulties about the Certificate of Compliance but, if I thought the issue was to be decided in favour of the company, I would make a declaration to that effect.

Why does the company seek to rely on existing use rights?

1. At the commencement of the alleged fifteen year period the land was in a light industrial zone under the Yarra Planning Scheme. Under the planning scheme then in operation various forms of accommodation, including attached house were prohibited uses in the relevant zone. It is really attached house that is relevant. "Attached house" was a land use term appearing in the relevant planning scheme at that time. That expression does not appear in the current planning scheme. The nearest present equivalent would be "dwelling". The company seeks to establish existing use rights for use of the land for what is now the land use "dwelling". So far as such a prohibited use is concerned it is not and has not been lawful to commence such a use. It can only be lawful to carry it on in the event of being able to establish existing use rights. Existing use rights at that time could not be created by the fifteen year rule. One had to prove lawful commencement and continuation.
2. There was, at that stage, an exception in that land in a light industrial zone could be used for the land use "Caretaker's House".
3. In those days the then planning scheme had its light industrial zone provisions in clause 116. Clause 116-1 contained a Table of Uses in a format similar to the Table of Uses that now applies under the present Victorian Planning Provisions (VPP) planning schemes. The table was divided into three sections. Land uses in section one could be carried out without the need of a permit provided that any related conditions specified in section one was complied with. Section three contained a list of land uses that are prohibited in the zone. These included "Attached House". Section two of the table contained a list of land uses that could be lawfully carried out on the land, but only provided that a valid planning permit permitting such use was in force.
4. Thus, in 1998 attached house was land use that was prohibited and for which no permit could be granted and caretaker's house was a so-called "as of right use" that could be carried out without the need to obtain a permit. (There was no condition specified in section one of the table in respect of caretaker's house.)
5. At that time the then planning scheme defined "caretaker's house" as follows:

A dwelling on the same site as a building, operation, or plant, and occupied by an owner or supervisor of that building, operation, or plant."

1. This concept has proved to be of some importance in relation to this case.
2. As already noted, caretaker's house was then a variety of dwelling, but it was the only dwelling type of land use that was not prohibited in a light industrial zone. Other forms of dwelling, such as attached house were prohibited.
3. The current zoning of the land is Commercial 2 Zone, although, until recently, it was a Business 3 Zone under the Yarra Planning Scheme. Although the name has changed, the distinction is not material for the purposes of this case. Under each of those zones the land use "Accommodation" (other than Caretaker's house, Motel and Residential hotel) are prohibited.
4. Motel and Residential hotel are not presently relevant. There is no question in this case of the land ever having been used, at any relevant time, as a motel or residential hotel.
5. Under each such zoning caretaker's house had become a section two use (without any condition) so that land could be used for that purpose only with a valid planning permit. If a caretaker's house land use had commenced under the light industrial zoning it could be carried on lawfully without the need of a permit. Existing use rights would preserve the right to continue using the land as a caretaker's house if that use was lawfully commenced under the light industrial zoning and continued lawfully in accordance with the provisos in the existing use provisions.
6. At all times use of the land as a dwelling, or indeed, human habitation, other than caretaker's house, has always been prohibited. It has always been illegal to start such use, but now the fifteen year rule can nevertheless bestow existing use rights if the necessary facts can be established.

"Dwelling" as a land use as compared with dwelling as a noun meaning a development or structure

1. Care has to be taken where planning scheme changes use alternative words and phrases. As noted, the current planning scheme no longer refers to attached houses.
2. Under the present planning scheme the land use definitions are found in clause 74. The land use term "Accommodation" is defined as follows:

1. That broad concept includes a number of land uses where people are accommodated. The list includes "Dwelling". Dwelling includes two subcategories namely "Bed and breakfast" (irrelevant for present purposes) and "Caretaker's house".
2. However, it is important to keep in mind the distinction between "Dwelling" as a land use term on the one hand, and dwelling meaning a building constructed as a house on the other. One is the land use, the other is a development on land. It is only the land use meaning that is relevant to a Table of Uses. As already noted, all "accommodation" except caretaker's house (and two other but irrelevant exceptions) is prohibited. Therefore dwelling, as a land use, being a subcategory of "accommodation", is prohibited.
3. The expression attached house in the planning scheme as it stood in 1998 is now covered by "dwelling".
4. The current land use definition of "dwelling" in clause 74 of the current planning scheme is as follows:

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling."

1. This particular land use definition does not trouble itself with distinction between attached houses, detached houses and other forms such as, for example, "row house" which used to have currency.
2. Thus there is some ambiguity in the word "dwelling". To spell it out, a building constructed as and for a house or dwelling might be referred to, in terms of it being a development of the land, as a dwelling. A structure or development constructed 50 or 100 years ago as and for a house or residence, though referred to as a "dwelling", will not necessarily be within the concept of the land use of dwelling. Something built as a house might subsequently be used as an office or a store or for some other use not involving the accommodation of human beings. A structure originally built as a house but now used as, for example, an office means that the land use is now office, not dwelling.

1. The land is a rectangular parcel of two allotments located on the southeast corner of the intersection of Studley Street with Hoddle Street. It is comprised of two allotments namely Lots 1 and 2 on Plan of Subdivision No. 30241 and being respectively the land in Certificates of Title Volume 8056 Folios 456 and 457. They are known as 1A and 1B Studley Street. 1A Studley Street is on the actual corner with frontages to the east side of Hoddle Street and the south side of Studley Street. No. 1B is immediately to its east and having only a frontage to the south side of Studley Street.
2. At relevant times the area has been zoned light industrial and subsequently Business 3 Zone and ultimately Commercial 2 Zone.
3. Most of the surrounding land is used for industrial or commercial premises. There are a couple of residential properties used for residential purposes. As I understand it these adjoin the southern boundary of the parcel and are Nos. 196 and 194 Hoddle Street. It has been noted by the responsible authority that these are non-conforming residential uses. I take this to mean that they enjoy existing use rights.
4. The company has sought to make something of the status of these properties but the point is irrelevant. Whether or not No. 196 Hoddle Street has existing use rights is no indication, one way or the other, as to whether any other land (and in particular 1A and 1B Studley Street) enjoy similar rights.
5. Studley Street is a one way street running from east to west past the frontage of the parcel of land to Studley Street and connecting with Hoddle Street to its west at a "T" intersection.
6. There is a single storey building that straddles both Nos. 1A and 1B.
7. I am prepared to accept that this building has stood on the parcel of land since the first half of the 20th century. There was a suggestion that it may have been built in 1930 although I note that that would have been at the depth of the worst depression for 100 years. Be that as it may, it is likely that the building was constructed before there were town planning controls in the area. I am certainly prepared to accept that the building was in existence since before the Melbourne Metropolitan Planning Scheme or its interim development orders came into operation in 1955. There could have been planning bylaws prior to that.
8. I am also prepared to accept that the building was originally constructed as and for two attached cottages. Fifteen years ago they were separated internally by a party wall.
9. A development in that form would then have been two attached houses in terms of the then planning scheme but only if used for residential purposes. Of course that does not mean that they were used fifteen years ago for dwellings or attached houses or the like.

1. The company acquired these two allotments several years ago. They are currently let by the company as two separate dwellings.
2. On 26 September 2011 the company applied to the Council of the City of Yarra as responsible authority for a planning permit in relation to the land. This application was given the number PLN11/0782.
3. The land was then in the Business 2 Zone. It was also subject to a Design and Development Overlay (Schedule 2) under the Yarra Planning Scheme. It is still subject to that overlay, but that overlay control has no relevance to the present case.
4. The proposal was for the construction of a five storey building on the land to be used as a convenience shop on the ground floor with twelve dwellings above with a reduction of standard car parking requirements.
5. The responsible authority gave or required the giving of notice of the proposal. Objections were received. An objector raised the question of the proposed residential use of the upper floors claiming that (correctly) such use is prohibited under the planning scheme and would be unlawful unless existing use rights for that purpose exist. The objector took the point that no such existing use rights are in existence and therefore that aspect of the proposal is prohibited.
6. The responsible authority considered various aspects of the proposal but determined to refuse it on the ground that a residential use is prohibited in the Business 3 Zone (as it then was) where no existing use rights were established to allow such use.
7. The company applied to this Tribunal for a review. It put forward a proposal for a similar building but with a changed use of the upper floors. This modification would have seen a convenience store on the ground floor and offices on the upper floors.
8. This proposed amendment was considered by this Tribunal and refused. The view was taken that such modification would amount to a transformation of the proposal and the Tribunal was not prepared to allow that.
9. That did not necessarily mean that such a proposal could not be advanced, but rather that a new permit application would need to be made. The company has not, as yet, made any such new application for development and use of the land as a convenience shop or offices, or anything else.
10. It has the land let to tenants as two dwellings. It is said that these current proceedings are to assert the existence of existing use rights as a dwelling. The existence of such rights would enable the company to continue to let the land, or perhaps only one of the units, as a dwelling for the time being, whether or not it ultimately decides to redevelop the land.
11. Its basis for claiming existing use rights may be limited to 1B. The first part of the fifteen years it seeks to rely upon relates to alleged illegal occupation of the land, or part of it, for the purpose of a dwelling. It is not necessary, for present purposes, to determine whether the portion involved was limited to 1B, or whether there was some encroachment on 1A.
12. It appears that the company may wish to assert that, if it has existing use rights at all, then it would not or may not be limited to one dwelling but might have two or twelve. It is not necessary, for the purposes of this case, to go into that aspect.
13. That then is an account of how the question in these proceedings came to arise. It also gives some account of recent planning history in relation to the land. That portion of the history is out of chronological sequence in as much as it is necessary to consider the fifteen years of alleged continuous use.

What is the point of time relevant to establishing fifteen years of alleged use as a dwelling?

1. I previously quoted the first paragraph of clause 63.11.[3] I did so in relation to the standard of proof and what might be meant by "sufficient proof" being an expression that appears in that clause. The proof of continuous use required to establish existing use rights on the basis of clause 63.11 is a continuous period in fifteen years prior to the date of the application or proceeding in which the question of the existence of existing use rights arises.
2. The company's permit application previously referred to was an application in which the question of existing use rights arose. That application was made to the responsible authority on 26 September 2011. Fifteen years prior to that would take the start of the fifteen years back to 26 September 1996. On my assessment evidence in the case fails to establish even illegal use of the land as a dwelling at that date. On the contrary, without altogether excluding that as a possibility, in my assessment the evidence, insofar as a probability can be established, is that at that time, the land was not being used at all.
3. Both these current proceedings before the Tribunal were commenced when they were filed and the filing fee was paid on 16 July 2013. Both these are proceedings within the meaning of clause 63.11 and one can also be regarded as an application.
4. If anything, this later date is more favourable to the company in its attempt to establish existing use rights, but even taking that more favourable finishing date the company has failed to persuade me, on the evidence, that it has existing use rights. On my finding no residential use of the land existed on 16 July 1998 or for some time thereafter.
5. I accept that there has been illegal occupation of the land as a dwelling or dwellings, but such occupation commenced some time after 16 July 1998, that is to say, some time after the date sought to be relied upon for existing use purposes.
6. The responsible authority also submits that there have been more recent gaps in the continuity of residential occupation, after it commenced. There might be actual gaps in occupation, or at least a failure to establish that there were not such gaps. Having regard to my findings on the evidence it is not necessary for me to consider whether existing use rights (if any) survive such subsequent gaps. They cannot survive if they have not been created in the first place.

Evidence as to the use of the land on and about 16 July 1998

1. In attempting to establish its continuous fifteen years usage the company relies, at the first part of its period, upon the evidence of Joanna Kordos. She, or rather her family trust company, Minagia Pty Ltd, became the registered proprietor in relation to the title to each allotment on 29 July 1998. That is already too late for fifteen years starting on 16 July 1998 and ending 16 July 2013. It is well within fifteen years before the company permit application seeking permission for a convenience shop and twelve dwellings.
2. The evidence of Ms Kordos is presented in two statutory declarations and sworn oral evidence that she gave in the course of the hearing. I have found her evidence to be less than satisfactory and less than reliable. There are too many inconsistencies between the oral evidence and the statutory declarations, and within the oral evidence. I do not mean that she is necessarily dishonest but, as a witness, she is careless, loose in what she says and relies on hearsay, guesswork and assumptions without what I would regard as proper bases for her conclusions.
3. She claims that her company bought both pieces of land constituting the parcel by contract of sale on some date in March 1998. She is unable to specify when settlement occurred. The date that I can have confidence in is the date of her company becoming registered proprietor as that is recorded on the titles.
4. Ms Kordos is an artist in that she is a painter of pictures. She says that she acquired the property for the purpose of establishing an art gallery and café therein. Such uses required planning permission. On 7 August 1998 she applied, in the name of her company, for a planning permit.[4] The proposal for which permission was sought is expressed in the application for a permit[5] in the following terms:

1. Her intention, as she has expressed it, was to create an art gallery for the display and sale of her own work and of other painters and artists. The studio was to be a place on the premises where she could paint. The café was either a second land use or ancillary to provide refreshments for reward.
2. There is no indication on the permit application of any intention to reside on the land. She would not then have needed a permit to reside there as a caretaker's house but other residential land uses were prohibited. She does not claim caretaker house usage but rather other residential use to found existing use rights as a dwelling. She now says that she had the intention of living there from the beginning. It may be so, but if it is so, it is an intention that she did not disclose on her permit application. If she had she would have immediately attracted the attention of the responsible authority to whether there was to be a prohibited land use. The responsible authority could not then, as it cannot now, grant a permit to use the land as a dwelling. Indeed, it has a public duty under s 14 of the PE Act to carry out and enforce the planning scheme, including the prevention or cessation of illegal uses.
3. The permit application form calls for a description of the way the land was then used. That requirement has been completed in the following words:

1. In her evidence Ms Kordos attempted to pass off responsibility for the contents of the permit application form to David Blutman of David Blutman & Associates, building designers, consultants and project management. Mr Blutman did have some participation. The permit application form was submitted with a covering letter of David Blutman & Associates.[6] However, in her oral evidence Ms Kordos recognised her signature on the application form (dated 27 July 1998) and that the other handwriting on the form, and in particular the statement about the way the land was used, are also in her hand. It may be that the name "Minagia P/L" and the costs of development at "$50,000.00" are in a different hand. That does appear to be the case, but the rest of the form appears to be in her hand. It contains a section in relation to the owner of the land. There the name "David Blutman & Assoc PO Box 1240 Caulfield Junction 3161" appears.
2. It is apparent that this was an error. Mr Blutman may have acted as an agent for some purposes, but her company Minagia Pty Ltd was the owner of the land.
3. The permit application and its covering letter were accompanied by application plans.[7] These plans show the proposed works. They involve creating a corridor connecting what were apparently once two separate but attached dwellings. Original rooms are altered so as to turn entrance doorways into wide openings so as to be more suitable for gallery display of paintings. There would be three such gallery rooms along the Studley Street side of the building as a whole with a large area at the western or Hoddle Street end that originally constituted two rooms each labelled as "seating" but with the one on the Studley Street road having that notation crossed out and replaced with the word "gallery". In the southwest corner partitions are shown as removed to create an enlarged workshop area, presumably studio. To the west of that there would be male and female toilets with a hand basin in between and then a store with shelves and a preparation and sales area with counter, benches, sink, espresso machine and the like to serve the café facility at the eastern end. Outdoors, between the building and the Hoddle Street frontage, an outdoor seating area is depicted but with the word "seating" struck out and replaced with the word "display".
4. The idea of a café was never proceeded with. Ms Kordos explained that she decided that the area was insufficient and that the café would not work.
5. Nowhere on the plans is there any indication of human habitation. There is no bedroom, no bathroom and the only food preparation area is the preparation and sales area associated with the proposed café. If Ms Kordos intended to reside on the premises, as she has later claimed, she made no disclosure of that intention on the plans, any more than on the permit application.
6. On 5 November 1998 the responsible authority granted planning permit 980975 in relation to the land. It allows art gallery, studio and café in accordance with endorsed plans. The first condition provides that the layout of the uses on the endorsed plan must not be altered without the written consent of the responsible authority. Condition 2 provides that all development must accord with the endorsed plans and any alterations must be approved by the responsible authority. Endorsed plans[8] accompany the permit. They are the same as the application plans save for a couple of inconsequential alterations to notations. According to her evidence the work later carried out departed from these plans in some ways.
7. On 29 January 1999 a building permit was obtained from Anthony Stokes of Stokes Building Surveying Pty Ltd. The permit is No. 1133 990146/0 Job No. 4339. It is in relation to the proposed building works to be carried out to enable use as a gallery. The approved plans in relation to the building permit[9] are substantially in accordance with the planning application plans but there is some alteration in relation to the toilets. There is a separate staff toilet and a single unisex and disabled toilet to contain a toilet bowl and hand basin. The layout with removed or enlarged access ways where doors had been and partitions had existed is similar with four galleries along the Studley Road frontage and rooms marked "workshop" at one end on the southern side and "seating" at the other end on that side together with an outdoor display area. There are details of proposed toilet pedestals but no indication of a proper bathroom or of any bedroom or intention to reside on the premises. The works in fact carried out again departed from these plans too.
8. Ms Kordos has given evidence that she did move into the premises and live there from January 1999 or, at the earliest, late December 1998. Both these dates are too late to constitute the required fifteen years.
9. Even when she did move in the premises and use did not satisfy the present requirements for dwelling as that land use is defined in clause 74 of the planning scheme. (I am aware that the present definition may not have been extant at the time.) She moved in while works were proceeding and before a certificate of occupancy or completion was obtained. According to her, when she moved in, she brought in a bed but she had to bathe (shower) elsewhere and she could not prepare food. She relied on obtaining pizzas from commercial premises elsewhere. She claims she later used the kitchenette for the café for cooking and the toilet for bathing. Although the toilet was for the art gallery customers this was said to be possible on account of there being a drain hole in the floor. She says she used a showerhead at the end of a flexible hose for bathing.
10. She claims that after she moved in the land was used as an art gallery but also as her "principal place of residence". It may be that she had no other place of residence and that this was her principal place, but that does not constitute it as a dwelling or distinguish it from a caretaker's house. On the evidence, her evidence, the land was used as an art gallery and any occupation as accommodation was in fact as a caretaker's house. Her evidence satisfies that definition rather than some other form of house, dwelling or accommodation.
11. It is quite possible for land to be used for more than one purpose at the same time but if this was used for a purpose in addition to art gallery the other use was as caretaker's premises. It could not constitute or create use as a dwelling more generally or form part of a fifteen year period of use as a dwelling. After all, by title and definition, caretaker's houses are occupied by caretakers. It must be rare indeed for a caretaker to have more than one dwelling. In these circumstances that dwelling, the caretaker's house concerned, will be the caretaker's principal dwelling.
12. At the time occupation commenced caretaker's house was not a prohibited use under the then planning scheme, and it did not require planning permit. She could in fact reside there as a caretaker without infringing on the land use provisions for the then light industrial zoning of the land.
13. Such occupation could even have been the basis of existing use rights as a caretaker's house. This could have been under the original notion of lawful commencement with no reliance on the fifteen year rule. However, if there were such existing use rights as caretaker's house, they have since lapsed. She continued there for only about four years and then moved out. She ceased to use the land as either an art gallery or a caretaker's house. In fact alterations were made without permission and the premises were let, via a government department, for residential purposes. Such residential use was prohibited under the planning scheme although I assume the government department and the tenants were unaware of that situation.
14. The use as a caretaker's residence, for those several years, cannot contribute to the alleged fifteen years continuous but unlawful use as a dwelling. There is not fifteen years anyway, as she moved in too late. When she did move in, her occupation cannot count towards existing use rights created under the fifteen year rule. Thus there are two bases, independent of each other, whereby the claim of existing use rights must fail.

Can mere future intentions create existing use rights?

1. If Ms Kordos had formed an intention to reside on the land prior to 16 July 1998, even though she concealed or did not disclose that intention when making her planning permit application, could that count towards the fifteen years? The answer must be 'no' for two reasons. One reason is, of course, because any such use was as a caretaker's house, not a dwelling or other form of habitation.
2. Furthermore, an intention to do something is not the same thing as doing it. The intention to use land for a particular purpose is not the same thing as the actual using of the land for that purpose.
3. If I intend to travel to Bendigo on the train on 1 December, that is not the same thing as my actually travelling to Bendigo on the train on that date. In the meantime I might change my mind, become sick or incapacitated, get a better offer, die or for some other reason not travel on the train on the day intended. I might decide to defer travel until another day or I may never go (never start). The question 'on what day did he travel?' can only be answered on the day of actual travel. There can be no commencement unless and until I do commence.
4. In a similar way, an intention to commence use of land for a purpose is not actual use of it for that purpose.
5. I make mention of this because there was reference, in the course of the hearing, to the decision of the Full Court of the Supreme Court of Victoria in City of Nunawading v Harrington.[10] In that case land was used as a bakery. It had been actively used for that purpose and then, for a period, was maintained for that purpose with some activity on the site and with the intention to resume actual baking or intention to retain the possibility of a resumption of actual baking. It was held on the facts of the case and in the circumstances that the period when no actual baking was carried on did not constitute a cessation of the land use for the purpose of a bakery. That is clearly different to a mere intention, at some time in the future, to use land for a particular purpose.
6. Here the intention, as disclosed in the permit application, and as realised in the evidence of Ms Kordos, was not the use or continued use of the land for a dwelling. At most it was use of the land as an art gallery, perhaps with ancillary studio and, at most, a caretaker's house.
7. Harrington's case is often quoted as authority for the proposition that a liberal interpretation should be applied in relation to the existing use provisions in the PE Act and for planning schemes. That is fair enough, in as much as the existing use provisions, in their original form and intention, were to do justice to somebody who had commenced use lawfully and continued it lawfully though planning controls may have changed to make the use a prohibited one in land use terms so that such a use could not be commenced. There are a number of other authorities to similar effect listed in [431,460] of Planning and Environment Victoria, published by the law publishers LexisNexis (previously known as Butterworths). All those authorities, save one, related to the original notion of existing use rights as doing justice to innocent users with no fifteen year rule to grant legal rights to those who have got away with illegal use for fifteen years. The exception is my own decision in Manningham CC v Treefern Nominees Pty Ltd (Beasleys).[11] In that case I said:

"Therefore (it) does not necessarily follow that the liberal approach should apply in the same way to fifteen year rule cases where it is plain that the prohibited use was commenced and has continued illegally. The provisions must be interpreted and applied fairly, and in accordance with their terms, but the onus of establishing the fifteen year rule exception lies on the party asserting it and I do not think that there should be concessions in favour of a party seeking to discharge that onus."

1. Although I still adhere to that view, I mention it only because it was referred to in passing in the course of the hearing in connection with Harrington's case. I do not think it is necessary, in this case, to be concerned about any possible distinction between liberal and strict interpretations because I am satisfied that any proper interpretation leaves the company without the remedy that it seeks.

1. In paragraph 9 above I quoted the first paragraph of clause 63.11 in relation to the fifteen year rule and the creation of existing use rights under it. I did not there quote the second paragraph of the clause. It reads:

"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 the commencement of the 15 year period the use has been held to be unlawful by 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 second dot point has been satisfied and constitutes a further reason why these proceedings must fail. On 3 March 2003, while the land was still owned by the company of Ms Kordos, the responsible authority sent a letter to the company in the following terms:

I refer to a recent inspection of the above land by Council's Planning Enforcement Officer, Mr. Greg Fairall.

The inspection resulted from information received at Council that the use of the land has changed from a commercial use, with ancillary caretakers accommodation, to that of wholly residential accommodation.

The inspection confirmed that the land is being used solely for the purpose of residential accommodation.

The land is located within a Business 3 Zone under the provisions of the Yarra Planning Scheme. Using land within this zone for accommodation (other than a caretaker's house) is prohibited by the scheme.

Section 126 of the Planning & Environment Act 1987 states:

(1) Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.

(2) The owner of any land is guilty of an offence if -

(a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or

(b) there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.

(3) The occupier of any land, is guilty of an offence if -

(a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or

(b) there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.

(4) This section does not apply to the owner of Crown land.

You are therefore requested to cease the above mentioned use of the land immediately.

Failure to comply with this request might result in Council taking enforcement action against you without further notice.

Section 127 of the planning & Environment Act 1987 states:

Any person who is guilty of an offence against this Act for which a penalty is not expressly provided is liable to -

(a) a penalty of not more than 1200 penalty units; and

(b) if the contravention or failure is of a continuing nature, a further penalty of not more than 60 penalty units for each day during which the contravention or failure continues after conviction.

Should you have any queries regarding this letter do not hesitate to contact Council's Community Amenity Unit on 9205 5063.

1. I consider that this letter, and in particular the paragraph that reads

"You are therefore requested to cease the abovementioned use of the land immediately."

amply satisfies the notion of a clear and unambiguous written direction from the responsible authority to cease the use by reason of non-compliance with the scheme.

1. No doubt the receipt of this letter put Ms Kordos and her company in something of a quandary. She was not, by that stage, living on the land or even using it as an art gallery. On the contrary, it was let for residential purposes. The income from such lease would cease if the direction of the responsible authority was complied with, to say nothing of the embarrassment that might obtain in having let the land for a purpose that was unlawful.
2. This gave rise to Ms Kordos sending a handwritten letter dated 3 March 2003 in reply to the responsible authority.[12] She refers to the Council's "notice", confirms her purchase, (she there says on 28 March 1998) and her continuous occupancy as her principal place of residence since the purchase of the property as of early July 1998. These dates are not confirmed by the sworn oral evidence that she gave at the hearing. She says that at the time of her purchase she understood the land was used as a residential dwelling referring to the certificates of title dated 11 March 1953 as if that might imply residential use back to that date. Of course it does not. Neither does it comply with her assertion in her art gallery permit application that the land had been vacant for ten years prior to her purchase. In fact the letter of 3 March 2003, perhaps conveniently, omits all reference to the application for that permit and to the permit itself. It seems to me that the application, the permit and subsequent use as an art gallery were materially relevant in the circumstances. I also note that in her oral evidence she specifically said that she knew the history of the land at the time of purchase. She further said, probably incorrectly, that settlement was on 29 July 1998. In re-examination she was asked about the statement in the permit application. She said that at the auction the then owner had told her that the land had been kept for investment purposes and had been held for a long, long time. She also described the land at the time of her purchase as being very dilapidated, in need of considerable renovation and rubbish clearance. At purchase it was unoccupied although later the eviction of squatters became necessary. Although she did not use the phrase "unfit for human habitation", her descriptions persuaded me that this was the situation. That was corroborated in the evidence of three affidavits relied upon by the responsible authority. I note that it was submitted, on behalf of the company, that I should bear in mind that the deponents were not called, and that there was no opportunity to cross-examine them. That is true although I find no reason to discount this statement by Mr David Fricke of 36 Studley Street, Abbotsford where, on oath, he said (in part):

"I moved into my property at 36 Studley Street in January 1998. At that time I recall that the subject site was derelict and I suspected that if anyone was living there it may have been squatters, as there were never any lights on. I recall rubbish being piled high at the back and the property being extremely unsightly."

1. Mr Ross Liddell of 72 Yarra Street, Abbotsford deposed that he moved to Abbotsford in 1995, that he passed the property every day walking to and from work and that it appeared to be vacant until a major renovation around the end of 1999 when it was opened as an art gallery.
2. Gavin Boardman of 73 Yarra Street, Abbotsford deposed:

"I bought my property at 73 Yarra Street, Abbotsford, in 1993.

From my recollection, at this time, the property on the corner of Studley Street and Hoddle Street looked very run down. It did not appear to be lived in and was quite grotty."

1. The letter of Ms Kordos of 3 March 2003 attempts to dissuade the responsible authority from taking action in relation to what it had detected as illegal use of the land for residential purposes. Her third numbered paragraph reads:

"I enclose various documents, statements, bills, held in my file, that will confirm my occupancy. That 1a and 1b continued and always remained two separate dwellings, for at least the 50 years."

1. That sentence is quite misleading except insofar as she suggests that she has lived there for some period which, on all the evidence, is much less than fifteen years, but rather in the order of four years. There is no basis for the assertion, if it is meant to be implied, that the land has been used as two separate dwellings for 50 years. It clearly was not while she had the art gallery going, and this statement confuses the distinction between something being built as and for a dwelling on the one hand and it being used for that purpose on the other.
2. The letter goes on to enclose a list of items as follows:
   1. Certificate of Titles (sic)
   2. Plan of Drainage
   3. City West Quarterly accounts of 1a and 1b
   4. My car registration address and infringement notice
   5. Visa statement - address
   6. Mastercard - "
   7. Pulse United Energy - address
   8. Rates instalment notices - 1999 of 1a and 1b Studley Street
   9. Primus telephone bills

"I hope the above satisfies and I look forward to your further correspondence, and written acceptance of our statements. Should you require anything don't hesitate to call."

1. I do not consider that those enclosed documents advanced the case under the fifteen year rule. She may have lived there using the land as a caretaker's house but any use as the two dwellings was only after she moved out. I do not doubt that the building was originally constructed as two "attached cottages"[13] but none of the enclosed documents establish fifteen years use for the purpose. I do not accept that the municipal rates documents, though emanating from the Council, are reliably indicative of the relevant land use for town planning purposes at any particular time. That is not particularly the concern of the rates department, just as it is not of the building surveyor. I also note that some of the rates notices display specific disclaimers that they can be relied upon as to the use of the land.
2. In passing I note that the full copy of the certificates of title, unlike the incomplete ones enclosed with the letter of 3 March 2003, disclosed that the two allotments on the two separate titles only came into common ownership on 6 February 1985. On that date C & L Davidovits Nominees Pty Ltd became the registered proprietor of 1A whereas that company had owned 1B as registered proprietor since 16 August 1983. Prior to 6 February 1985 different people owned each lot under the separate titles. Both certificates of title are dated 11 March 1953. Each lot was created by a single plan of subdivision which may or may not been registered at about that time. Common ownership ceased in 1958 until 1985. I consider that there is no reliable evidence as to the actual use of the land prior to its acquisition by Ms Kordos. I will return to that point. In the meantime her letter of 3 March 2003 at least achieved a reprieve.
3. By letter dated 11 April 2003 the responsible authority wrote to Ms Kordos[14] in the following terms:

I refer to you (sic) your letter dated 3 March 2003 and your conversation with Council's Planning Enforcement Officer, Mr. Greg Fairall, on 9 April 2003.

As you are aware inspections of the above land have confirmed that the land is being used solely for the purpose of residential accommodation.

The land is located within a Business 3 Zone under the provisions of the Yarra Planning Scheme. Using land within this zone for accommodation (other than a caretaker's house) is prohibited by the scheme.

You were requested to provide Council with information that would support a claim that the use of the land for accommodation benefited from an existing use right established through the continuous use of the land for that purpose over, at least, the past 15 years.

Thank you for the information that you have provided.

While that information, on it's (sic) own, might not conclusively prove an existing use right exists Council cannot, at this time, provide evidence to the contrary.

It is therefore accepted that the land may continue to be used for the purpose of residential accommodation unless evidence comes to light that would discount any existing use right for that purpose.

Should you have any queries regarding this letter do not hesitate to contact Council's Community Amenity Unit on 9205 5063.

1. Whilst the previous letter of the Council was unequivocal, this one is decidedly equivocal. In effect Ms Kordos has talked the Council out of taking further action against her in relation to the residential use of the land, at least for the time being. The letter regards her evidence as inconclusive but, forgetting that the onus is on her, observes that the Council could not, at that time, contradict her proposition. If it had gone into the evidence as I have done it should, in my opinion, have concluded that there were no existing use rights and that the land was indeed being used illegally and in contravention of the planning scheme. This letter does not authorise or make legal residential use of the land. In effect it says that, for the time being, the responsible authority does not intend to take further action in relation to residential use of the land although it reserved the right to take such action if further evidence becomes available. The implication of this is that such evidence would or could end the amnesty suggested by the letter and revive the need or the requirement of the responsible authority that residential use should cease.
2. It was submitted to me that there is no such new evidence. In the first place, that is not to the point. I must make a decision on the evidence before me. I am not bound by any decision that the responsible authority might, rightly or wrongly, have made. Secondly, there is an abundance of new evidence, at least before me, going far beyond what was in the letter of 3 March 2003. This includes evidence about the application for and existence of the art gallery permit and the use of the land under that permit. All that was known to Ms Kordos at the time of writing her 3 March 2003 letter but was not disclosed. It goes way beyond the latter and would be "new" to anyone reading the letter in isolation. If even that additional evidence had been disclosed I entertain some confidence that the reply of the responsible authority would have been in quite different terms.

1. It was submitted that the responsible authority is estopped in denying the contents of the contents of 11 April 2003. It is even suggested that it is authority for the residential use of the land. Estoppel means that, by means of words or actions, a party has induced another party to believe in and rely upon a situation so that the party who made the representation cannot retreat from it but is bound by it, whatever the true situation might have been.
2. The short answer to this is that estoppel does not lie against a public authority in the discharge of its public duties. Even if the responsible authority had made an unequivocal statement that Ms Kordos or her company had a right to use the land for residential purposes, it cannot be bound to that statement if it should prove to be unjustified. Of course it did no such thing.
3. A simple way of understanding this is to remember that we are dealing with a public authority carrying out its public and statutory duties. The enforcing planning laws might be pursued by a member of the public. The planning laws are public laws and the public has an interest in them being observed and enforced. The responsible authority has a duty, but a member of the public has a right to enforce. Either may bring enforcement proceedings or other proceedings aimed at securing compliance with the law. The outcome of an enforcement application, a prosecution or an application for a declaration cannot be different according to whether the proceedings are commenced by the responsible authority pursuant to its duty or a member of the public pursuant to his or her or its right.
4. As mentioned at the hearing, such issues were discussed in the case of City of Northcote v El Alam[15] which decision was affirmed by the Supreme Court in El Alam v Byard & Northcote CC.[16] Having gone into such questions at some length there, referring to relevant authorities, I do not propose to recapitulate the proposition that a public authority cannot be estopped from performing its statutory public duty. I consider the proposition to be beyond doubt.
5. In saying this I distinguish the cases referred to in paragraph 70 of the written submissions on behalf of the company where VBI Properties Pty Ltd v VCAT & Port Phillip CC[17] is referred to and which, in turn, refers to Brickworks v Warringah Corporation[18] and Southend-on-Sea Corporation v Hodgson (Wickford) Ltd.[19] As they were explained at the hearing on behalf of the company, I do not consider these to be estoppel cases. On the basis of what was then said it is clear that these were cases where planning permission was held to have been granted and where the responsible authority could not then change its mind without perhaps taking proceedings such as the declaration of invalidity or cancellation under s 87 PE Act. They were cases where a permit could be granted and were held to have been granted so that the responsible authority could not then later back out of the situation. In this present case no planning permit to use the land for a dwelling (other than caretaker's house) could ever have been granted, that being, at all times, prohibited.

Is there evidence of relevant use of the land prior to its acquisition by Ms Kordos?

1. In her art gallery permit application Ms Kordos asserted that the land had been vacant for ten years. In her oral evidence she claimed to have knowledge of prior history of the use of the land. Her evidence is at least consistent with the land having been unfit for human habitation prior to her acquisition and this is corroborated by the evidence in the affidavits filed by the responsible authority. If the land was vacant and unused, it is consequently not being used for dwelling or attached house or, for that matter, any other purpose. On this basis I would conclude, prima facie,[20] that the land was not used for dwelling or attached house prior to acquisition by Ms Kordos. Without more, I might conclude that the land was vacant and unused for ten years, or at least for two years prior to acquisition by Ms Kordos.
2. Two years is a relevant period in as much as clause 63.06 of the planning scheme deals with expiration of existing use rights. It provides:

• The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
• In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession."

1. If the land was vacant and unused for two years prior to its acquisition by Ms Kordos or her company, any existing use rights that might previously have been in existence, expired by that circumstance.
2. There is some evidence of vacancy and non-use prior to acquisition, but this might be rebutted by evidence to the contrary. In any event, the onus is not on the responsible authority to show that there was vacancy or non-use. On the contrary, the onus would be on the company to show, if it can, that there was relevant use prior to acquisition by Ms Kordos or her company.
3. Is there any such evidence? The company seeks to rely upon a statutory declaration of Monica Davidovits declared on 16 September 2013.
4. On the first day of hearing an explanation was given that this person was unable to attend on that day. It was said that the company would rely upon the statutory declaration for what it might be worth, in spite of the fact that there could be no cross-examination. However, the case did not finish on that day. The hearing was adjourned part-heard for approximately ten days. Ms Davidovits could have been called on that second day. No explanation was advanced for her failure to appear on that day. If reluctant, she could have been subpoenaed.
5. I find that I am not prepared to rely on her statutory declaration. C & L Davidovits Nominees Pty Ltd became the registered proprietor of one of the lots of land on 16 August 1983 and of the other on 6 February 1985. That much is clear from the certificates of title. It says nothing as to the use of the land.
6. The statutory declaration goes on to say that she is a director and secretary of the Davidovits company having been appointed director of the company on 21 October 2007 and secretary on 3 October 2012. Both these dates are long after that company owned or had anything to do with the relevant land. The declaration then goes on to say that Lesley Davidovits was the director of the company from 13 May 1977 until 3 October 2012, that he was Monica Davidovits' husband, and is now deceased. The declaration does not say when Lesley Davidovits died although he ceased to be a director on the day that Monica Davidovits became secretary.
7. I note that the name of this company includes the initials "C" and "L". I assume that the 'L' might be for Lesley Davidovits. I also note that the name of the company does not include the initial 'M', the initial of Monica Davidovits.
8. The relevant paragraphs of the statutory declaration read as follows:

"8. When the Company purchased the Property, to the best of my recollection, the dwellings on the Property were used for residential purposes. In fact, I recall an elderly couple residing in one of the dwellings.

1. 9. There were times when the dwellings on the Property were not tenanted. However, those periods never extended longer than 12 months.
2. 10. When the Property was sold to Minagia Pty Ltd on 29 July 1998, it was sold on the basis that the dwellings on the Property were used for residential purposes."
3. I think it is pertinent that what is said in paragraph 8 of the declaration is qualified as being "to the best of my recollection". I am left in the dark as to how good that recollection is or whether there is any basis for it. If the witness had been called the representative of the responsible authority could have tested whether there is any basis for this assertion and checked out the dates. As the declaration stands there is nothing to suggest that Monica Davidovits had any specific duties in relation to the company, its business, its ownership of the land or in relation to the land itself, at any rate prior to her becoming a director on 21 October 2007. I have no confidence that the recollection of the land being land for residential purposes when acquired by the Davidovits company is reliable. These acquisitions were approximately 18 months apart. Even if one of them was occupied it says nothing of the other or what happened thereafter including whether they continued to be occupied or whether they became vacant and unused for ten years or two years prior to them being sold to the company of Ms Kordos.
4. I note reference to the Davidovits company having applied in the mid 1980s for a planning permit to use and develop the land as an office, and that the permit application was refused. Also, in 1987 the company applied for a planning permit to use and develop the land as a warehouse. Of course the land could have been occupied at those times pending the outcome of the permit applications although it is also possible that the tenants (if there were any) were evicted, paid out or suffered non-renewal of their tenancy arrangements and/or that the land was held, vacant and unused, for ten or two years for the purposes of investment or possible further use or development.
5. I think the statutory declaration is vague and too doubtful to be relied upon. It certainly lacks particulars about times, dates and activities. I am not prepared to rely upon it.

1. I am not satisfied, on the basis of my findings, that there are existing use rights for residential purposes under the fifteen year rule or under the other provisions of clause 63 of the planning scheme. I am not satisfied that any use existed during the two years prior to acquisition by Ms Kordos. No existing use rights for a dwelling were acquired for the following reasons:

1. No fifteen year continuous use has established, any relevant period of attached house or dwelling use falls short of fifteen years. 2. The use whilst occupied by Ms Kordos as an art gallery and caretaker's house. Subsequent use as a dwelling or dwellings fall far short of fifteen years and any existing use right as a caretaker's dwelling established without reliance on the fifteen year rule it has subsequently expired having ceased for more than two years. An existing use right as caretaker's establishment is limited to that use and does not transform into a right to use for other accommodation uses such as dwelling.

1. There has been an unequivocal written direction of the responsible authority which is clear and unambiguous and which directs cessation of the non-compliant use of the land as a dwelling. I mean the notice dated 3 March 2003. (I note, by the way, that there is an incorrect date on the copy of the letter tendered on behalf of the company. A typed date of 30/03/2012 has been altered in pen to read 3 March 2003. That cannot be correct in as much as the reply letter of Ms Kordos of 3 March 2003 specifically refers to the notice number "CAPL03/00489" which matches the number on the letter being replied to, and which is repeated twice, firstly as to "in reply please quote" and also in relation to "our ref.").
2. It follows that I decline to make the declaration sought and that the review under s 97P PE Act for review of the decision of the responsible authority to refuse to issue a Certificate of Compliance is refused and that refusal is affirmed.

1. As to Certificates of Compliance I was asked, in the course of the hearing, to say something "authoritative" about the place and purpose of Certificates of Compliance. Their place in the scheme of things does appear a little obscure. I do not have a great deal to add to what I said in Logie v Campaspe SC[21] and McDonald v Nillumbik SC.[22] I adhere to what I said on those occasions. It appears to me that Certificates of Compliance are intended for clear-cut cases where the propositions to be certified can be ascertained by reference to planning scheme provisions. I suggested that certificates are intended to provide a quick, simple and cheap means for obtaining documentary evidence that a particular proposed or existing use or development can be carried on without a permit. The usefulness suggested was to break the impasse that might arise where a timid lender is unwilling to finance a proposal without documentary evidence that it can proceed lawfully in accordance with the planning laws where no planning permit is available. A use which can be carried out "as of right", with no occasion for there to be a planning permit, cannot obtain a planning permit. A lender who questions whether the proposal is lawful might have to interpret the planning scheme for himself or herself or itself, obtain legal advice or apply for a declaration. The most authoritative of these options would be to obtain a declaration. However, it is a bit ridiculous to have to obtain the declaration to satisfy a lender in circumstances where the legality of the proposal is quite obvious from a simple reading of the relevant portion of the planning scheme. I suggested that certificates of this sort are not appropriate to be resorted to in place of a declaration in difficult, doubtful or contentious existing use right cases where the situation can only be ascertained after a consideration of evidence, including evidence of the history of past use and planning controls and whatever existing use right provisions might apply or have applied. I suggested that it was not intended that the responsible authorities will be required to itself gather and assess evidence in relation to contentious allegations as to existing use rights and I noted that the onus for establishing such rights is on the party asserting them.
2. In Diamond Waters Pty Ltd v Melbourne CC[23] I considered a Certificate of Compliance which was found to contain mistakes. I said (amongst other things) at [64] that I did not think that, by means of a certificate, a responsible authority could conclusively determine something by an incorrect statement in a certificate. I said that the certificate, in that case, appeared to be useless, so far as the use of land was concerned, because it did not specify a land use or alternatively that the mention of "hotel" was referring to something that was clearly not a lawful use at the time the certificate was granted, or subsequently.
3. All this reinforces the notion that a declaration is not the appropriate remedy for difficult, doubtful and contentious cases and that the role of a Certificate of Compliance should be limited to obvious and clear-cut cases.
4. Sections 97N to 97R PE Act constitute Part 4A of that Act and deal with Certificates of Compliance. Those provisions provide for applications for certificates, consideration of such applications by the responsible authority which is to grant or refuse them, with a power to apply to the Tribunal for a review of a refusal or failure of the responsible authority to grant, cancel or amend a certificate and the keeping of a register of certificates.
5. I note that s 97O(4), relating to responsible authority consideration of an application, says that the responsible authority must refuse to issue a certificate if the use or development or any part thereof is prohibited under the planning scheme. I suppose there could be an argument as to what is meant by the word "prohibited" in this context. Normally it would mean contrary to law. However, it is used frequently in the zone provisions of Victorian planning schemes in contradistinction to uses that can be carried on as a right and uses that require a planning permit. Uses in s 3 of the Table of Uses of Victoria Planning Provisions planning schemes are said to be prohibited and they are unable to be lawfully commenced although, in spite of such prohibition might nevertheless be continued lawfully if existing use rights can be proved. Does "prohibited" in this subsection mean absolutely contrary to the law or could it mean prohibited subject to the establishment of existing use rights?
6. The status of Certificates of Compliance is a little puzzling in as much as there are no statutory provisions in Part 4A of the PE Act in relation to such certificates which give legal force or authority to such certificates. Are they merely advisory? The procedures seem to be overly elaborate for that yet, as indicated in the Diamond Waters case, I do not accept that a certificate would have a valid legal force against a declaration of a Court or the Tribunal that contradicts it.
7. When this question was raised at the hearing I asked those who appeared as to whether they had checked the second reading speech of the Bill which introduced these provisions to see if it threw any light on the status, standing or purpose of these certificates. They had not but I have since had a look at the Hansard report in this connection. The second reading speech of the then Minister does not throw much light on the subject. A parallel speech in the Legislative Council does not add anything. Under a subheading "CERTAINTY FOR PERMITTED USE OR DEVELOPMENT"[24] the speech says:

"One of the uncertainties under the Act is that if under a planning scheme a use or development does not require a permit, an applicant must proceed on the basis of his or her interpretation of the relevant provisions of the scheme. If detailed conditions are set out in the scheme, this can be a complex matter. Also, if the scheme changes before the use or development commences, additional requirements may need to be met.

Currently, there is no provision for a statement to be made that a proposed use or development meets the requirements of a scheme and does not need a permit. As the Minister for Planning intends to ensure that schemes provide for more permitted development subject to conditions, it is likely that there will be a greater demand to have a statement to this effect.

Clause 23[25] allows a certificate of compliance to be granted not only for proposed use or development but also for existing use or development. The certainty of a certificate will often be attractive to a person proposing a type of use or development that complies with the scheme. It will also be attractive to that person's financier."

The speech then goes on, in terms I have not been able to quite understand to deal with "Clause 4" and then finishes with the following:

"A certificate about existing use or development will add certainty to prospective owners and occupiers of land in cases in which there may be doubts about compliance. It should not normally be needed in straightforward cases such as buying a standard detached house in a standard residential zone."

1. As I have said, I am not clear as to how much "certainty" a certificate affords in as much as experience has shown that a certificate containing mistakes may be issued. A complicated situation could arise if somebody accepts the certificate and relies on it without questioning it or challenging it where it might subsequently prove to be mistaken. Where there is only an applicant to a responsible authority for a certificate there is no "contradictor" with an interest in challenging it, appealing or seeking a declaration. The categories of persons apparently thought likely to derive benefit from a certificate is somebody contemplating a use or development, someone contemplating purchase or those persons' financiers. Such persons might be comforted but might be better advised, in a doubtful case, to seek advice or a declaration. At any event, the reference to "financiers" supports the notion that meeting a lender's requirements is part of or a possible use of a Certificate of Compliance.
2. I fear that all this may add more doubt than clarification. In any event, these comments are made by the way and do not relate to my decision in either of the proceedings constituting this case.

[1] And indeed all Victorian planning schemes based on the Victoria Planning Provisions.

[2] Constituted by these two proceedings

[10] [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139.

[11] [2008] VCAT 1104 at [63]

[12] That letter is exhibit JK5 to her second statutory declaration

[13] A phrase sometimes used during the hearing in relation to them.

[14] Exhibit JK6 to her second statutory declaration.

[15] A decision of mine reported at (1993) 13 AATR 28 where the case is misnamed City of Northcote v Alam

[16] (1994) 13 AATR 355

[17] [2001] VSC 22

[18] [1963] HCA 18; (1963) 108 CLR 568

[20] That is to say on the face of it, at first impression

[21] [1999] 2 VPR 54 at [85]; [1999] VCAT 431

[22] (2000) 5 VPR 311; [2000] VCAT 772 at [10]- [15]

[23] [2010] VCAT 419 at [64] - [66]

[24] This quotation is from the second reading speech of the Minister representing the Minister for Planning in the Legislative Council

[25] Clause 23 of the amending Bill which ultimately inserted the Certificate of Compliance provisions of section 97N to 97R into the PE Act