Robin Cowcher; Body Corporate 304011C; Martin Paul Maloney.

The premises at 2 Enfield Street, St Kilda are not currently being used for a purpose which is allowed by any `existing use rights' attaching to the land (if any).

______________________________

Mr J Cicero, Solicitor of Best Hooper appeared on behalf of the applicant (Council). He called the following witnesses in the first five days of the hearing, Mr Jeff Lyons, Community Housing Manager with the St Kilda Rooming House Issues Group Inc.; Ms Robin Cowcher, neighbour; Mr Edward Cook, neighbour.

Mr H McM Wright QC, with Mr Gary Testro, Lawyer, instructed by Gary Testro, Lawyer, appeared on behalf of the respondents VBI Properties Pty Limited and MTS Management Services Pty Ltd on the first day of the hearing.

Mr H McM Wright QC with Mr C Townshend of Counsel and with Mr Gary Testro, Lawyer, instructed by Gary Testro, Lawyer, appeared on behalf of the respondents VBI Properties Pty Limited and MTS Management Services Pty Ltd, on the second and subsequent days of the hearing. Mr Wright QC called David Townshend, Director of VBI Properties and MTS Management Services Pty Ltd and Father Maguire of the Open Family Association, to give evidence during the first six days of the hearing.

Mr Steven Curtain, Solicitor of Deacons Graham & James, Lawyers, appeared on behalf of the Commonwealth Bank of Australia, on the first two days of the hearing, whereas Ms Tamara Brezzi, Law Clerk appeared on the third day, Mr Nick Rintoul, Solicitor, appeared on the fourth day and Ms S McIndoe appeared on the fifth and sixth days.

Ms Robin Cowcher read her affected persons statement as a witness statement on the third day of the hearing. Mr Martin Paul Maloney read his affected persons statement on the fourth day of the hearing. Mr Kazimerz Gorzadek had his affected persons statement read on the fourth day of the hearing.

Chronology of Planning Controls affecting the subject land dealing with

ANALYSIS OF TWO ISSUES - EXISTING USE RIGHTS AND

The Case Law Tests - Existing Use Rights and Characterisation 51

Characterisation of motel as opposed to a residential building - a useful case 54

Characterisation of the use in prior legal decisions concerning this site 57

Permit directed to issue on 22 November 1990 by Member Rooke 58

The Case Laws Tests - Representations, Reliance and Estoppel 72

Analysis of the Facts and Application of the Estoppel Principles 74

1. On 12 August 1999 the City of Port Phillip, as Responsible Authority, filed Application No 1999/063690, pursuant to the Planning and Environment Act 1987 s. 149A (`the Act'), seeking a number of declarations.

No existing use right has been established or exists in relation to the use of the building or the land at 2 Enfield Street, St Kilda for the purpose of a `backpackers hostel'.

Without the grant of a permit, the continued use of the building at 2 Enfield Street, St Kilda for the purpose of a backpackers' hostel is not permitted.

4. The Council seeks the following two additional declarations concerning Planning Permit No 249/002/P3 dated 20 February 1991:

18(b) "Whether the planning permit requires that the use of the land for the purpose of a backpackers' hostel be carried out in accordance with the conditions of the planning permit".

(hereinafter referred to as `the paragraph 18 declarations').

5. At a directions hearing before Deputy President Bruce on 31 January 2000 counsel for the respondents VBI Properties Pty Limited and MTS Management Services Pty Ltd (hereinafter referred to as `VBI' collectively), Mr Michael Wright QC, took issue with the breadth of the paragraph 18 declarations sought by Council. From the remarks issued by Deputy President Bruce subsequent to this directions hearing, it appears that Mr Wright submitted that this part of the application dealing with the validity of the permit was beyond the scope of section 149A application and should have been brought before a presidential member pursuant to section 149B of the Act. Council's solicitors indicated willingness to amend so as to limit the scope of the declaration sought if necessary. However, Deputy President Bruce noted that it would be preferable to have a presidential member available for the hearing if only to avoid argument at the commencement of the hearing.

6. On 1 February 2000 Council's solicitor, Mr Cicero, gave notice of the following amendment to its Application for declarations so that paragraph 18 would instead read as follows:

18(a) Is [permit 249/002/P3] operative or has it lapsed.

18(b) Does [permit 249/002/P3] require that the use of the land for the purpose of a backpackers' hostel be carried out in accordance with the conditions of the planning permit.

Application for Enforcement Order No 1999/067164

7. On 25 August 1999, the City of Port Phillip issued an application for enforcement order No 1999/067164, against VBI Properties Pty Limited as owner of the subject land and MTS Management Services Pty Ltd as occupier, seeking an order that:

The use of the land at 2 Enfield Street, St Kilda for the purpose of a backpackers' hostel cease.

The respondents pay Council's costs of this application.

8. At the outset of the hearing, which was listed to start on 14 February 2000 as a hearing on the merits, Mr Wright QC for `VBI', raised a number of preliminary legal points.

9. Firstly, Mr Wright QC sought a preliminary legal ruling on the question of estoppel based upon a representation of fact. He wanted that question resolved before the Council led evidence, because it went to the threshold question of whether the Council was entitled to lead evidence in relation to these factual issues inconsistent with statements made in and after 1987, that a `youth and student hostel' would be considered use for the purpose of a `residential building'.

10. Secondly, he continued to take issue with the jurisdiction of the Tribunal, as constituted with a non-presidential member, to hear the paragraph 18(a) and (b) declarations even as amended by the solicitors for the Council.

11. Thirdly, he also raised the issue of the validity of clause 63.05 Port Phillip Planning Scheme. Clause 63.05 reads:

A use in section 2 or 3 of a zone for which an existing use right is established may continue provided:

...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.

12. Mr Wright expressed his third argument as follows:

The respondents submit that the basic existing use right is conferred by section 6(3) of the Act. Having regard to the basic principles established by case law, that existing right enables a change in the way in which the use is carried on, or in the type of activities associated with that use, provided that the basic purpose for which the land is used does not change.

The respondents submit that to the extent that any provision of a planning scheme purports to qualify or restrict the right conferred by the Act it is ultra vires.

13. Two previous directions hearings had occurred on 23 November 1999 and 31 January 2000. Pursuant to the Tribunal's respective practice directions in force at those times, these preliminary legal points should have been raised and dealt with prior to the commencement of the hearing on the merits. No such preliminary hearing had been listed and it had been understood by all parties that the case would proceed, together with the witness evidence, on 14 February 2000.

14. Mr Wright QC required these preliminary points to be determined prior to the leading of evidence by Council.

15. Upon my querying the propriety of converting a merits hearing, at which witnesses were waiting to give evidence, into a preliminary legal hearing, it was agreed between the parties by 9.30 am on the second day of the hearing that:

(i) if the Tribunal was not disposed to make a preliminary ruling in relation to the estoppel issues, `VBI' would not continue to insist on same. Instead, `VBI' would permit the evidence to proceed and would indicate what evidence it considers is barred by the estoppel. In other words the evidence can be received by the Tribunal subject to the estoppel objection;

(ii) the first question to be resolved by the Tribunal by way of an interim decision is:

Whether the premises at 2 Enfield Street, St Kilda are currently being used for a purpose which is allowed by the `existing use rights' attaching to the land.

(iii) the Council reserves its right to raise the clause 63.05 argument at a deferred hearing date in the event that the above question is resolved against the Council;

(iv) Council would defer its paragraph 18 applications for declarations (concerning the 1991 permit 249/002/P3) until after the Tribunal had handed down its interim decision on the first question.

16. Part and parcel of this first question to be answered is the issue of estoppel based on a representation of fact, raised by VBI. VBI maintains that representations made by council in January 1987 and subsequently corroborated by its actions and statements of its lawyers that the use and the proposed use of the premises by VBI was for the purpose of a "residential building", prevent the Responsible Authority from now denying those facts.

Deferred Legal Matters for Future Consideration

17. After the Council opened its case there were further discussions during the course of the proceedings as to the mechanics of splitting the matters to be decided. It was agreed that the enforcement order arguments would be dealt with upon resumption. It was agreed that the issue of equitable relief against enforcement orders (based on estoppel and other evidence which went to the enforcement order applications) as well as the cl. 63.05 legal point, would be deferred until after the interim decision had been handed down. A directions hearing would be called to resolve the balance of the hearing procedure. I now summarise the deferred arguments.

18. In the event that the Council is unsuccessful in its declaration that no existing use rights pertain to the subject land for the purposes of a backpackers' hostel, the Council seeks to rely, in the alternative, on the loss of any continuing use rights because `the amenity of the area has been damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right' - see clause 63.05 of the new format Port Phillip planning scheme.

19. By way of rebuttal, the respondent `VBI' argues that to the extent that clause 63.05 of the planning scheme purports to limit or restrict existing use rights conferred by section 6(3) of the Act, the clause is beyond power, ultra vires and has no legal force or effect.

20. The issue is whether Permit 249/002P3 is still alive and in force or has expired. Counsel for VBI maintains it is still alive and in force, but it has never been acted upon because prior to its commencement there was a condition precedent that had not been performed. Counsel for the Responsible Authority maintains the permit has expired.

21. The respondent also contends that the Tribunal cannot under s.149A grant any meaningful relief particularly in relation to Council's paragraph 18(b), because the Respondent is not a specified body for the purposes of s.149A(2).

22. However, prior to the determination of these issues, there is a preliminary legal dispute between the parties as to the jurisdiction of the Tribunal to determine the matter.

23. In response to the applicant's paragraph 18(a) and (b) declarations concerning the 1991 Permit the respondent `VBI' responds that the declaration sought:

... does not relate to the `interpretation' of the permit or any condition of the permit. The permit and its conditions are so far as the respondent is aware clear and unequivocal. Rather what is sought is a declaration as to whether certain things required to be done by conditions of the permit have in fact been done. Such a declaration is not within the jurisdiction of the Tribunal under section 149A of the Act. Further, the declaration sought in 18(b) is as to whether the respondent is bound by the permit in the conduct of its use of the subject land. Again this is not something relating to the `interpretation' of the permit as with the declaration sought in paragraph (a) it goes beyond the jurisdiction conferred by section 149A.

24. I commented to the parties that there were either two methods of proceeding:

(i) both parties agree to seek the partial reconstitution of the Tribunal (together with the continuing presence of myself) by the President, pursuant to s.108 of the Victorian Civil and Administrative Tribunal Act 1998, for the discrete portion of the determination dealing with the permit; or

(ii) both parties agree to a rewording of paragraph 18 (a) and (b) declarations so that both agree that the Tribunal has jurisdiction to deal with that amended question pursuant to s.149A of the Act.

25. Upon the suggestion of the Tribunal, Mr Cicero agreed to seek a discrete reconstitution of the Tribunal to include a presidential member for the limited purpose of determining the section 18(a) and (b) declarations.

26. At 4.30pm on 18 February, Mr John Cicero of Best Hooper for the Council gave an undertaking that he would seek a reconstitution of the Tribunal with a Presidential Member and myself for the purposes of determining the paragraph 18 declarations, prior to resumption of the balance of the hearing.

27. On 23 February 2000 Best Hooper sent the following letter to the Honourable Mr Justice Kellam, President of the Victorian Civil and Administrative Tribunal:

You may be aware that this proceeding is part heard before Member Komesaroff. We act for the City of Port Phillip.

In substance, the Council in this proceeding seeks a declaration:-

(a) as to whether land at 2 Enfield Street, St Kilda has any existing use rights and if so for what purpose; and

(b) the status of a planning permit issued in respect of the land pursuant to a determination of the then Administrative Appeals Tribunal in 1991.

The application has been issued by the Council pursuant to Section 149A of the Planning & Environment Act. Mr Wright QC and Mr Townshend who are appearing on behalf of the Respondent have raised a jurisdictional issue. In substance, they argue that the declaration sought as set out in paragraph 18 of the Application for Declaration which we have foreshadowed to amend in the way advised to the Tribunal, notwithstanding that proposed amendment, is not a declaration which can be made pursuant to Section 149A and should have been brought under Section 149B of the Act.

Member Komesaroff has directed that I write to you requesting that the Tribunal be reconstituted solely for the purposes of hearing argument in relation to the matters raised in paragraphs 17 and 18 of the Application for Declaration. Such reconstitution to comprise a Presidential Member and Member Komesaroff.

A copy of this letter has been forwarded to Member Komesaroff, the Respondent and Deacons Graham & James who are the solicitors for the Commonwealth Bank which is a party to this proceeding.

I refer to your letter of 23 February 2000 and am prepared to make the order reconstituting the Tribunal suggested by Member Komesaroff. As I will be out of Melbourne for the next week or so, I have referred your letter to the Vice President in charge of the Administrative Division, His Honour Judge Wood, for him to attend to supervision of the practical arrangements arising from the request for reconstitution.

29. On 7 March the Senior Registrar sent the following letter to the parties:

I refer to your letter of 23 February to the Honourable Mr Justice Kellam.

You are advised that when Member Komesaroff has published her interim decision on the proceedings to date, the application will be listed for a Directions Hearing to ascertain how the proceedings, including the application for a declaration, should proceed.

A Presidential member, namely Deputy President Horsfall or Deputy President Bruce, will sit on the Directions Hearing and on any subsequent hearing of the application for declaration.

You will be advised of the date of the Directions Hearing when Member Komesaroff has given her interim decision.

30. Another deferred issue is the respondents' claim for equitable relief against any discretion to make an enforcement order, on the basis of equitable estoppel, based on the same set of facts as relied upon with the estoppel argument adverted to above. The Mortgagee, the Commonwealth Bank who was represented throughout the hearing on a watching brief, would also make submissions to the Tribunal at the resumed hearing.

31. The two issues for my determination at this stage of the proceedings are whether the current use of the land enjoys existing use rights and whether estoppel operates against the Responsible Authority.

32. Continuing use rights are enshrined in the Planning and Environment Act 1987, s.6(3):

Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall:

a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which is was being lawfully used before the coming into operation of the scheme or amendment (as the case may be);

b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation.

Planning and Environment Act 1987, s.6(3)(b)

33. It was agreed between the parties that subsections 4 and 4(A) are not applicable.

34. The central issue in both proceedings is whether the premises are lawfully able to be used for their present purpose without a planning permit by virtue of existing land use rights attaching to the land. To that end the following questions must be answered:

1. Firstly, for what purpose was the land lawfully used immediately prior to the relevant date? A sub-question that must be asked and answered is what is the relevant date? Is the relevant date prior to the inception of planning controls in 1954 or, pursuant to cl.63.11 of the Port Phillip Planning Scheme, 10th August 1984, being 15 years prior to the date of the applications to this Tribunal? The Application for declaration is dated 11/8/99.

2. Secondly, for what purpose is the land currently being used?

3. Thirdly, is the purpose for which the land is currently being used different to the purpose for which the land was lawfully used immediately prior to the relevant date?

35. The other issue in both proceedings is whether council is estopped from denying that the land was being used for the purpose of a `residential building' :

(i) shortly prior to VBI's purchase in early 1987 and

(ii) after VBI's purchase - (the `corroborative evidence' argument raised by Mr Wright QC).

36. A chronology is a useful recitation of the history of the premises.

Enfield House described as `Kings Club Private Hotel'

Toorak Times Advertisement of facilities including `as a guest you will be attended by our beautiful hostesses whenever you stay'.

Described Use of `Kings Club' as a boarding house

Internal Report by LJ Crocker, St Kilda's Chief Health Surveyor to council

Boarding House Use continues but street kids sheltered

VBI commences investigation of accommodation for its proposed business

Various discussions with council officers from tourism, rate, health, building and planning departments about a number of properties

Discussed `use' categorisation with Andrew Widdicombe

He asked about use for "travellers, youth groups and students"

Letter from David Townshend to Planning Dept. missing from council's files and Mr Townshend has no copy

VBI enters into contract to purchase `Enfield Boarding House'

Inventory of Furniture in contract describes premises as `Enfield Private Hostel'

I can confirm that a town planning application for a Youth and student hostel would be considered under the MMPS definition of `Residential building'."

George Bennett Town Planner letter to David Townshend

Renewal of registration of `Enfield Private Hostel' by Open Family Foundation Inc on 30/1/87

Health Act 1958 and Health (Registration) Regulations 1984

Number of boarders approved: `as per Health Act'

renewal of registration of `Enfield Private Hostel' by VBI's predecessor Maranoa Close P/L

Health Act 1958 and Health (Registration) Regulations 1984

1. Objectors' appeal against determination to grant a permit to VBI for buildings and works

2 Enfield Street application for development only, (not use) and development.

Renewal of registration of `Enfield Private Hostel' by VBI's predecessor Maranoa Close P/L

Health Act 1958 and Health (Registration) Regulations 1984

Enforcement proceedings issued against VBI by Responsible Authority

Use and development permit granted subject to 25 conditions. Bare order made to avoid enforcement proceedings 1989/24391 resuming on 26/11/90.

Interim Enforcement Order application dismissed by D.P. Byard

Dismissed for lack of real urgency. Directions as to future conduct of hearing.

Formal withdrawal by Deputy President Bruce of Enforcement Order 1998/5693.

Chronology of Planning Controls affecting the subject land dealing With Accommodation

1 March 1955 - Melbourne and Metropolitan Board of Works Interim Development Order and MMPS 1954

37. At the inception of the planning scheme, `boarding house' is not separately defined.

38. The first planning control affecting the subject land was the MMBW Interim Development Order gazetted 1 March 1955. It referred to the Melbourne Metropolitan Planning Scheme Ordinance 1954. Under the latter document, the following definitions are incisive:

`Dwelling' means a building or part of a building which provides self contained accommodation for the exclusive use of a single family but does not include a residential building as herein after defined or part of such building;

`Flat' means a portion of a building used exclusively used for living purposes by a single family and which is a self contained unit including within its bounds a kitchen and a bathroom, but a caretakers dwelling is not a flat;

`Institutional Home' means an institution for the care and maintenance of children, the aged and the infirm, a benevolent institution or a nursing or convalescent home, but does not include a hospital or mental institution;

`Residential building' means a building used for human habitation, not providing self contained living accommodation for individual families, but does not include an educational establishment, a hospital, an institutional home, a mental institution, a reformative institution or a tourist establishment.

`Tourist Establishment' means a building, works or land used for the purpose of providing accommodation for travellers, tourists or persons engaged in recreational pursuits and for the provision of facilities for recreation for such persons, and includes caravan parks and the like.

39. Within the Residential B Zone which applied to the subject land, `tourist establishment' was a prohibited Column 5 use, whereas use of the subject land for the purpose of a `residential building' and a `flat' was a Column 3 permitted use provided certain conditions were met.

40. Around 1959, the definition of `residential building' in the planning scheme was amended to read:

`Residential building' means a building used for human habitation not providing self contained living accommodation for individual families, but does not include an educational establishment, a hospital, an institutional home, a mental institution, a reformative institution, a tourist establishment or a motel.

`Motel' means a building or group of buildings within the same curtilage used or intended to be used for the temporary accommodation of persons travelling by motor car, provision for the parking of which is made within the curtilage.

41. Within the Residential B Zone `motel' was a [Column 4] permit required use.

42. On 11 April 1962, the subject land was rezoned to Residential `A'. There were no relevant changes to the definitions.

43. The next relevant changes to the definition in the planning scheme occurred between 18 January and 23 April 1965, when the 1965 MMPS was exhibited. `Boarding House' was still not separately defined. The following relevant definition changes occurred:

`Apartment House' means a building (not being a residential building as hereinafter defined) used for human habitation not providing self contained living accommodation for individual families or facilities for persons other than residents or their guests, but does not include such accommodation where it forms part of an educational establishment, a hospital, a hotel, an institutional home, a mental institution, a reformative institution, a tourist establishment or a hotel;

`Residential building' means a boarding house or a common lodging house (as such terms are defined in the Health Act 1958) or a residential club, but does not include a restaurant, dining room or café available to persons other than residents or their guests or a motel.

`Dwelling' means any building or portion of the building including such out-buildings as a normal to the enjoyment of the dwelling which is used or intended, adapted or designed to be used for the purpose of a residence by a single family or an occupier, having the right to the exclusive use thereof and which contains bathing or sanitary facilities within its bounds, but does not include a `residential building' or `apartment house'.

44. The definitions of flat, institutional home, motel, tourist establishment did not change in a manner relevant to this decision.

45. The definition of apartment house was inserted into this 1965 planning scheme, at the same time as the definition of `residential building' was altered.

46. In the Residential A Zone, `apartment house' was a permitted column 3 use provided that the open area per habitable room is `not less than 180² feet'. `Residential building' was a permitted `column 3 use' provided that the open area is `not less in area than 30% f the floor area'.

47. A tourist establishment remained a prohibited use in a Residential A Zone whereas a motel was a column 4 permit required use.

48. It is necessary to turn to the Health Act 1958 definitions to understand the `residential building' definition in the planning scheme.

`Boarding House' means any house, tent or edifice, building or other structure, permanent or otherwise, and any part of such premises (not being the licensed premises of a licensed victualler) in which more than 5 persons exclusive of the family of the proprietor thereof, are lodged or boarded for higher or award from week to week or for more than a week.

`Common Lodging House' means any house, tent or edifice building or other structure, permanent or otherwise (not being the licensed premises of a licensed victualler), in which persons are harboured or lodged for hire for a single night or for less than a week at one time or any part of which is let for any term less than a week at one time.

49. Between 1963 and 1987 the definition of `boarding-house' in the Health Act was not relevantly amended.

50. Pursuant to the Regulations Relating to Boarding-houses, Common lodging-houses and Licensed Victualler's Premises 1963**:**

For the purposes of these regulations where any premises comply with the definition of both boarding-house and a common lodging-house, such a premises shall be deemed to be and shall be registered as a boarding-house.

51. On 28 February 1968, pursuant to the MMBW Interim Development Order 1961 as modified and amended, the definition of `Residential Building' reverted to the definition under the Interim Development Order as in force prior to 18 January 1965. Accordingly, the definition of `apartment building' was omitted, the definitions of dwelling and flat remain similar (providing self contained accommodation including kitchen, toilet, bathing facilities), motel and tourist establishment remain the same, while residential building reads:

`Residential Building' means a building used for human habitation not providing self contained living accommodation for individual families, but does not include an educational establishment, a hospital, an institutional home, a mental institution, a reformative institution, a tourist establishment or a motel.

52. On 22 May 1968, a mere three months later, the definition of residential building changed yet again.

53. Innominate uses have consistently remained column 4 permit required uses. Only `tourist establishment' remained consistently prohibited. Therefore, if accommodation use fell `between the stools' so to speak, between dwelling, flat, detached house, apartment house, and residential building uses on the one hand and outside `tourist establishment' on the other hand, a permit could nevertheless be sought.

54. When the Melbourne Metropolitan Planning Scheme Ordinance was gazetted on 22 May 1968, the following relevant definitions appeared:

`Apartment House' means a building (not being a residential building as herein after defined) used for human habitation not providing self contained living accommodation for individual families or facilities for persons other than residents or their guests, but does not include such accommodation where it forms part of an educational establishment, a hospital, a hotel, an institutional home, a mental institution, a reformative institution, a tourist establishment or a motel;

`Dwelling' means any building or portion of a building including such outbuildings as are normal to the enjoyment of a dwelling which is used or intended, adapted or designed to be used for the purpose of a residence by a single family or an occupier, having the right to the exclusive use thereof and which contains bathing or sanitary facilities within its bounds, but does not include a `residential building' or `apartment house';

`Habitable Room' means any room in a house, flat, apartment house, residential building or caretakers house other than a kitchen, bathroom, laundry, pantry or the like;

`Residential building' means a boarding house or a common lodging house (as such terms are defined in the Health Act 1958) or a residential club, but does not include a restaurant, dining room or café available to persons other than residents or their guests or a motel.

55. On 22 May 1968, detached house was a column 2 use, flat, apartment house and residential building were a column 3 permitted use subject to specific conditions, tourist establishment was a prohibited column 5 use, motel was a permit required column 4 use, as were innominate uses. Innominate uses were `any purpose not specified or included in any other column of this section of this table'.

56. Between 22 May 1968 and 14 December 1983, the definitions of `motel', `residential building', `tourist establishment' did not change, `dwelling' and `flat', `apartment house' were not relevantly changed. By reprint 11 of the Melbourne Metropolitan Planning Scheme Ordinance, which was gazetted on 14 December 1983, the definition of apartment house had altered slightly to:

`Apartment House' means a building (not being a residential building as herein after defined) used for human habitation not providing self contained living accommodation for individual families or facilities for persons other than residents or their guests, but does not include such accommodation where it forms part of an educational establishment, a hospital, a hotel, an institutional home, a reformative institution, a retired persons residential community, a tourist establishment or a motel.

57. On 16 May, 1984 the subject land was rezoned to Residential `C', pursuant to amendment No. 150 Part 6 to the Melbourne Metropolitan Planning Scheme.

58. By 31 December 1984, as seen from reprint No. 12 of the Melbourne Metropolitan Planning Scheme Ordinance, although there are no relevant changes to the definitions of the above words, the uses of `apartment house' and `residential building' are moved to column 4 permit required uses in a Residential C Zone. Accordingly, they join motel in column 4 and are deleted from automatically permitted column 3 uses subject to specified conditions.

59. On 12 August 1987, the definition of residential building changes again. In reprint 14 of the Melbourne Metropolitan Planning Scheme Ordinance `apartment house' is omitted, the definitions of motel and tourist establishment remain substantially the same and the following relevant definition changes occur:

`Residential building' means any building or portion of a building containing more than 10 habitable rooms which is used or intended, adapted or designed to be used either temporarily or permanently for the purpose of human habitation by two or more persons who do not comprise a family but does not include such accommodation where it forms part of an educational establishment, a hospital, an hotel, an institutional home, a motel, a reformative institution, a retired persons' residential community or a tourist establishment;

`Dwelling' means any building or portion of a building including outbuildings which are normal to the enjoyment of a dwelling, which is used or intended, adapted or designed to be used either temporarily or permanently for the purpose of human habitation by -

(c) two or more persons who do not comprise a single family where such building or portion thereof does not comprise more than 10 habitable rooms;

and which provides self-contained living accommodation but does not include a residential building or a motel;

`Detached house' means a building unattached to any other building and occupied or intended or designed for occupation as a single dwelling but does not include a detached cluster house or moveable dwelling unit;

`Institutional home' means an institution for the care and maintenance of children, the aged, and the infirm and includes a benevolent institution, a special accommodation house (as defined in the Health Act 1958) or a nursing or convalescent home, but does not include a hospital or a retired persons' residential community.

60. On 16 February 1988 the `Day 1 Planning Schemes' came into operation, whereby every municipality got its own planning scheme. The gazettal of the St Kilda Planning Scheme made no difference as far as relevant definitions were concerned.

61. On 30 October 1989, known as `Day 2 Planning Scheme' or otherwise known as the `Plain English' Planning Schemes, the definition `tourist establishment' disappeared from the Day 2 Plain English Planning Scheme. It disappeared from both the definitions section and the sections of the tables. Accordingly, tourist establishment was no longer a prohibited use.

62. It is noteworthy that in the Day 2 Plain English Planning Schemes, on 30 October 1989, the definition of `residential building' changed again from its Day 1 (16 February 1988) definition to:

A building with more than 10 habitable rooms that provides temporary or permanent accommodation for at least two people who are not a family.

63. On 19 February 1991, by Amendment R93 Part 1, there was again, no definition of `tourist establishment', but the definition of `residential building' was changed to:

A building with more than 10 habitable rooms that provides temporary or permanent accommodation for at least two people who are not a family. It does not include a tourist hostel."

64. The definition of motel was changed to add the words `It includes a tourist hostel' after the word `tourists' in that definition.

65. The explanatory report of Amendment R93 Part 1 explains that the amendment clarifies that tourist hostels are not `residential buildings' and require a permit in most residential zones. The definition of motel now reads:

A building that provides temporary accommodation mainly for travellers and tourists. It includes a tourist hostel.

66. There was never a definition of `tourist hostel'. It should be noted that tourist hostel was a discretionary use, after February 1991, whereas pre 30 October 1989, `tourist establishment' was a prohibited use. A hiatus existed in the interim period, where the use may have been innominate.

67. The next major definitional change came with the VPP format Planning Scheme which uses nesting in a complete rewrite of planning expression.

68. The effect of nesting is to group different types of a use under a catch-all or global phrase which applies to each and every one of those types. Therefore, the catch-all or global phrase is `accommodation' or `the accommodation group' but there are at least 19 different types of accommodation uses nested thereunder. Nevertheless, they all, clearly, provide accommodation to persons. Under the global phrase, there are categories of various types of use and under those categories there are sub-categories and sub-sub-categories. So, for example, `residential building' is a category of accommodation while `backpackers lodge' and `boarding house' and `hostel' are a sub-category of residential building. The recurring characteristic in each is the provision of accommodation.

69. Backpackers lodge, boarding house and hostel are not defined. However residential building is defined as:

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm or residential village.

70. It includes backpackers lodge, boarding house, hostel, nurse's home, nursing home, residential college, residential hotel.

71. Residential hotel is further separately defined and includes motel but is itself of course included in `residential building'. `Residential hotel' is defined to mean:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

72. It is interesting that the VPP format Planning Scheme in clauses 63.01 and 63.02 guide the reader in how to apply the existing use right test, ie not by classification according to the definitions in the VPP format Planning Scheme but by the purpose of the actual use.

73. It is also noteworthy that the global catch-all phrase `accommodation' is defined as `land use to accommodate persons'. In turn, it includes:

74. `Group accommodation' is in turn defined to mean:

Land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence.

75. In order to better understand that definition one would have to turn to the definition of dwelling which involves a `self-contained residence'. It deals with a different type of group accommodation to residential building.

76. Mr Jeff Lyons is the community housing manager with the St Kilda Rooming House Issues Group Inc. He has worked for 15 years with this rooming house group and gave evidence of his familiarity with boarding houses and backpackers hostels. He had been familiar with 2 Enfield Street (`Enfield House') while it was operated by the Open Family Foundation (`OFA'). The work he does for the rooming house group is to get tenants into boarding or rooming houses, get them out, ensure they pay their rent and resolve disputes regarding accommodation and rent. The tenants for which he finds accommodation are entitled to subsidies from the Government and either use State Government housing stock or other stock with Commonwealth rent subsidies.

77. The _St Kilda Rooming House Study - March 1984, (_at page v), which was a study funded by the Ministry of Housing and the City of St Kilda, identified four user categories of the rooming house stock in St Kilda:

A survey of the rooming house population showed that four-fifths were single males, mostly in the 30-50 years age group, and about one-quarter were employed.

1. Middle aged men reluctantly trading down their housing following job loss, sickness or the break-up of the family home.

2. Younger persons temporarily using rooming house accommodation during studies, travel, unemployment or upon leaving home and unable to afford a self-contained flat.

3. Long termers, including some with long term health problems and disabilities.

4. The aged who were on low incomes and had no alternatives.

78. Mr Lyons agreed with that characterisation of occupant of rooming houses, in which expression he included boarding houses and backpackers hostels. He also agreed that out of those categories, his tenants could only comprise persons who were Australian residents and below a specific low income threshold. So, for example, persons who fell within category 2 but were neither Australian residents nor below a certain income threshold, would have to seek accommodation from the private rooming house market.

79. To his tenants, the premises they occupy are their home. It is their permanent place of abode, no matter for how short or long a period of time that may be.

80. He gave evidence that the following characteristics identify a boarding or rooming house as distinct from a backpackers hostel:

* each room contains either a single or double bed as opposed to backpackers which contain bunk beds;

* the premises he is concerned with are operated under the aegis of the Residential Tenancies Act and the legal obligations thereunder;

* there is no permanent staff which operates the rooms or boarding house;

* there are no `tourists' accommodated, by which he meant itinerant workers travelling from state to state for work or other types of travellers, whether on a working holiday or just on holiday;

* there are no services of any description whatsoever provided to the occupants;

* there is no information service of the type provided by Enfield House.

81. Under cross-examination from Mr Chris Townshend, Mr Lyons maintained that although his direct experience is with publicly owned and operated rooming houses, nevertheless he was familiar with the private rooming house market and his experience of the private market was also that the tenancy component comprised a relatively stable tenant rather than a high turnover tenant.

82. He obtained his length of stay statistics from a survey conducted two years ago of community housing managers throughout Melbourne who had control of approximately 800 rooms.

83. Edward Cook has lived in St Kilda since 1951. He has lived around the corner from the subject land since 1972 and next to the subject land since 1979. In 1951 he remembers 2 Enfield Street as an upmarket rooming house while the rear part comprised self-contained flats. When he revisited in 1961, he obtained the same impression. Around the late 1970s and/or early 1980s, he watched the property deteriorate. He remembers a short time around 1980 when he thought it was used as a brothel. That only lasted six months. He was familiar with the operation of the premises by the Open Family Foundation because he used to do electrical work for them. He also leased three of their garages for a 15 year period to garage his car and store his tools of trade. Mr Cook was an electrician. He is presently retired. He used to do minor electrical (maintenance type) jobs, not major jobs. After the Open Family Foundation became the owner, he observed approximately 30 residents being accommodated. He noticed that some were scruffily dressed and called them `street kids'. Of the composition of the tenants during the time it was managed by the Open Family Foundation he gave evidence that:

Five were probably street kids, ten were unemployed, in their 30s and 40s, and were often observed drinking.

84. As to the length of stay, about fifty percent were there the four years that Open Family Foundation owned the premises with the rest staying shorter periods of time.

85. Mr Cook also did electrical work for Mr David Townshend. That meant that he was familiar with the premises after VBI's purchase. He noticed that it took about six months for VBI to facilitate a changeover of tenants. Prior to VBI's purchase, the rear flats had been let to families as self-contained accommodation, but after VBI's purchase the flats were broken up into rooms in similar fashion to the front rooming house which comprised the original Enfield Street Victorian mansion.

86. Whereas previously there had been one person per room, there were now six. He observed the following activities which had not taken place in the past:

* gathering of groups on balconies often talking loudly;

* gathering of persons on the rooftop gardens singing and talking loudly;

87. He described the use of Enfield House between 1951-1987 as a boarding house or an apartment house, whereas he describes it presently as a backpackers hostel.

88. When the Open Family Foundation ran the premises, he used to see the street kids, but only at the front of the property when he entered it. They were not visible from the back of the property adjacent to which he and Miss Cowcher lived.

89. Mr Townshend was anxious to get a different type of tenant into the premises than the more permanent type that lived there for periods of six months, twelve months or a number of years. He also increased the number of beds per room to six so that approximately 120 people were accommodated in place of the previous 30 to 40 people.

90. Ms Robin Cowcher has lived next door to Enfield House for the last 20 years since 1980. She described her observations of the property between the years 1980-1987 and then subsequent to the purchase by VBI Pty Ltd.

91. As her kitchen window on the first floor was approximately 25 metres from the porches and balconies of Enfield House, she was able to observe the type of tenants and the goings on.

92. Her observations, which primarily coincided with the period during the Open Family Foundations ownership, were that 2 Enfield Street was used as a boarding house, whose occupants were mainly low income, elderly, sick or possibly alcoholic. These tenants lived there for extended periods of time, some for longer. They slept a lot, they rarely came and went, they didn't have cars. In a nutshell, they were `down on their luck'. She described them as a sad group of people who drank a fair bit.

93. Subsequent to VBI's purchase her observations, which she described as consistent for the entire 13 year period to date, included:

Loud music, loud parties, loud ball games, loud car noises, congregations of young people on holidays and here to have a good time; alcohol freely available; larger numbers being accommodated (probably because of increased beds); most people stay a shorter time and have no commitment to responsible behaviour.

94. She admits that she is now able to ring a hotline to complain to managers although on the odd occasion the phone is unmanned.

95. She describes the use as a `backpackers hostel' and maintains there has been no change in the use of the premises from 1987, when VBI took over, until now.

96. She admits there is a change in the numbers of people between the winter and the summer season. The winter season sees less patrons who are less inclined to be outdoors, possibly stay for longer periods (who might have casual work) and are generally quieter.

97. Between 1982-1987 the Open Family Foundation operated 2 Enfield Street, which it purchased as a Boarding House.

98. Father Maguire, is a Director of the Open Family Foundation incorporated, which has recently changed its name to Open Family Australia (`OFA').

99. He has been the Parish Priest in South Melbourne for the last 27 years.

100. He gave evidence that the Open Family Foundation had bought Enfield House with a view to continuing the boarding house business. Enfield House accommodated people who were `down on their uppers' and he agreed that the type of people generally accommodated in Enfield House, as in other rooming houses, fell within the four user categories identified in the St Kilda rooming house report.

101. He said that the core of Enfield House was occupied by these sorts of people, however they retained a portion of the front part of Enfield House for street kids, for the purpose of giving them a safer environment than the street bench or other unsavoury boarding houses with suspect managers who abused the trust of these young people.

102. Their dominant tenant was what he termed long-termers and medium-termers, but they purposely accommodated half a dozen street kids, which he termed `short-termers'.

103. The length of stay of tenants during this five year period was minimum six months to one year, some staying two, three years or even longer.

104. There was no on-site manager during Open Family Foundations management, although a Helen Birt used to be a daytime manager, operating out of the Foundation's Head Office in Dorcas Street, South Melbourne. Jonathon Ford-Lloyd was a long time resident who had resided in Enfield House prior to OFA's purchase and continued to live there and `manage' the site subsequently.

105. As a general proposition Father Maguire agreed that the occupants of Enfield House (other than street kids) were not your conventional family type of person, but had psychological, emotional or physical problems. Many of them lived there permanently, which he described as longer than a year, and considered Enfield Street their `principle place of residence' for the `time being'. They had no other fixed place of abode. He also termed these type of people `tourists in their own country'. He agreed that the occupants were generally poor or disadvantaged.

106. He estimated approximately 40 people occupied Enfield House during OFA's ownership with the vast majority being a transient population with personality disorders, alcohol problems or drug problems.

107. Father Maguire admitted there were two discrete groups of persons accommodated during his management of 2 Enfield House. There were the `down and outers' and there were the `street kids'. The Foundation's purpose in buying Enfield House was to provide accommodation for the homeless and drug addicted adolescents who were alienated from the community. Enfield House was not operated as an institution, it was operated as a commercial venture because they needed the boarding house tenants to fund the operation commercially, when the funds were unavailable from government or other charitable sources. Nevertheless, their aim in purchasing Enfield House was to have a facility which would accommodate the street kids, which it was the Foundation's charter to assist.

108. David Michael Townshend is a solicitor who is a director of both VBI Properties Pty Ltd and MTS Management Services Pty Ltd. He is in the business of `budget accommodation'. To that end he owns a number of properties around Australia including a few in Melbourne.

109. He established this business in 1986. He made various investigations into the market, talking to council officers, estate agents and others. He intended to target the accommodation, but not confine it, to travellers, youth groups and students. Mr Townshend explained that historically, young people had few satisfactory accommodation options in the Melbourne metropolitan area. Their options were generally confined to institutions such as the YWCA, YMCA and Youth Hostels Association.

... at that time the latter had membership criteria and rules such as:

111. Most other hotel accommodation was expensive and not seeking to attract the younger market.

112. Mr Townshend was interested in catering for a market that was not at that time catered for. He was interested in filling his accommodation buildings. Other places did not cater for school groups on excursions, the itinerant student market, the itinerant worker market, the traveller market.

113. Mr Townshend's intention was to provide accommodation without length of stay restrictions to cater for persons seeking a longer stay, whether for work purposes or otherwise. He also wanted to cater for group accommodation such as schools, sporting and cultural groups. He used VicTour to further develop his idea, because VicTour had statistics and other information on travel in Victoria and were also the largest accommodation booking agency in Victoria. As its name suggests, `VicTour's' interest lay in tourism.

114. Mr Townshend was directed by VicTour to St Kilda as an ideal location for the proposed business. Council officers from the City of St Kilda assisted Mr Townshend in targeting potential buildings for his business. These officers were variously tourism officers, health officers, building inspectors and a planning officer, Andrew Widdicombe. Within St Kilda, officers directed Mr Townshend to `the triangle' being a problem area which the council were anxious to `clean up'. The `triangle' covered the Jackson Street, Grey Street, Fitzroy Street area and contained a large number of boarding houses. Council had also targeted it as a precinct suitable for tourism development.

115. As a result of inspecting council's rate records and discussions with council officers, a number of properties in St Kilda were purchased by Mr Townshend's group. VBI purchased Enfield House as well as a number of other properties in the St Kilda vicinity at 28 Grey Street; 12 Burnett Street; 37 Gurner Street; 97 Barkly Street; 35 Redan Street and Charnwood Road. No 2 Enfield Street (`Enfield House') had, at the time, a number of Health Department orders against it. At the time of its purchase by David Townshend, it was being operated by the Open Family Foundation. As is usual with councils, different departments in the City of St Kilda gave Mr Townshend different information, depending on their speciality. The rates department provided him with ownership and use information, while the health department provided him with registration information. For example, by letter dated 10 September 1990, council's rate office gave Mr Townshend information as to the `correct chain of owners' from 1940 to 23 April 1987 and also described the use during the whole chain of ownership. The chain of ownership commences in 1940 with the rate records describing the use as `boarding house', continues on to six changes of ownership until 5 August 1982 when the Open Family Foundation Inc. became the owner and stopped at 23 April 1987 when VBI became the owner. During the entire 47 year period described in that letter, the `use' is consistently described as `boarding house', for the purpose of the rates department. Other documents that have issued from departments of the council, for example the health department, also describe the Enfield House premises as a `boarding house'.

116. Pursuant to the Health Act 1958 and the Health (Registration) Regulations 1984 registration of the subject land was renewed for the three years 1987, 1988 and 1989. The following consistent information appears in each renewal of registration form:

* address of premises: 2 Enfield Street, St Kilda, 3182;

117. Mr Townshend's intention was to increase the numbers accommodated in Enfield House and that was possible if the Health Act registrations were changed from boarders to rooms. The regulations then control the numbers that could be housed per `room'. Notwithstanding the change in the type of registration from boarders to rooms, the `registration type' under the Health Act could only be expressed as:

* Open Family Foundation Inc of 375 Dorcas Street, South Melbourne was registered as the proprietor in 1987 whereas Maranoa Close Pty Ltd (predecessor to VBI) was registered as the proprietor for the years 1988 and 1989;

* The Open Family Foundation Inc (`OFA') had registration on the basis of 38 approved boarders (ie individuals) in 1987 whereas Maranoa Close Pty Ltd had, in 1988, approval for the registration of 43 rooms and/or "boarders as per Health Act" and in 1989 had approval for 38 bedrooms.

119. These differences are now explained. Mr Townshend explained that the premises were attractive to him because in their existing pre 1987 state, it had a layout and number of rooms, ablution facilities and common rooms which would suit the purposes for which he wished to market the premises. He made some minor alterations such as replacing a bath with two showers and adding another couple of toilets but otherwise did not significantly alter the facilities which were already provided other than cosmetic improvements.

120. He insisted that the property could have accommodated the numbers prior to 1987 which he accommodated subsequently. In November 1987 he obtained registration for 43 rooms rather than the previous year's registration under the Health Act of 38 boarders. The consequence of this was that since 1 January 1988, Enfield House was lawfully able to accommodate over 100 persons under the Health Act and its regulations. This was a result of `youth hostel' amendment to the Registration (Health Act) Regulations where for example new regulations only required one toilet per eight persons and this suited Mr Townshend's purpose. The result of the number of existing and modified facilities in Enfield House was that, after the youth hostel amendment to the Health Regulations, 148 persons could physically have been accommodated. Mr Townshend gave evidence that during the summer months the maximum numbers he accommodated were approximately 110 persons whereas in the winter months of August and beginning of September, the minimum number he accommodated went down to between 40 to 50 persons.

121. Mr Townshend explained that the property has been continually upgraded and that as a result of changed policy, fire upgrading and other notices have been served on VBI. He estimated expenditure on the business has been in excess of $600,000 including installation of smoke detectors and sprinklers, cosmetic upgrades and marketing etc. He explained, for example, that the fire sprinkler and smoke detector obligation was a direct result of council characterising the occupancy as a `backpackers' hostel' which had a higher sprinkler obligation than a typical `boarding house'.

122. Prior to Mr Townshend's purchase, he made several inspections of the property and gave the following evidence:

* there were a lot of young people coming and going;

* the local police attended the property most days and nights;

* Mr Townshend suspected something of a drug distribution depot;

* the physical layout of the property at that time was similar to the present layout with the front rooms designated for office use and passive recreation, communal kitchen, parking at the front, six rear garages and a series of bedrooms (43 in number) and bathrooms.

123. Mr Townshend gave evidence that, in an attempt to discuss the use categorisation of the property, to ascertain whether a planning permit was required, he had a conversation with Andrew Widdicombe, a junior town planning officer, between 11-15 January 1987. Mr Townshend states that Mr Widdicombe said his proposal would be regarded by council as a residential building. Mr Townshend said that when he asked Andrew Widdicombe for confirmation in writing, he was advised that he would need to formally apply for confirmation and the letter would be referred to the head planner. He handwrote a request for confirmation on the spot, but did not retain a copy. Council also has no copy of such request for confirmation in its files. The only reference to anything written is a reference in a letter dated 29 January 1987 from George Bennett, Town Planner with the City of St Kilda, which refers to a letter dated 16 January 1986 (sic).

124. Mr Townshend did not wait for written confirmation from the council but instead went ahead and entered into a contract for the purchase of 2 Enfield Street, St Kilda on 21 January 1987. This was over a week prior to receipt of the planning department's alleged characterisation letter dated 29 January 1987. Under cross-examination, Mr Townshend gave evidence that the contract of sale permitted him a `let-out' if the confirmatory letter did not arrive. However when the contract of sale was produced on day six of the hearing, this matter was not raised again. My reading of the contract of sale is that there is no shred of special condition permitting an `out' if that written representation from the council was not forthcoming. In other words, it was an unconditional contract of sale.

125. There are other instances of gaps/deficiencies in the evidence given by Mr Townshend. For example, Mr Townshend gave oral evidence of his representation to council that he was targeting `travellers, youth groups and students'. His written request for characterisation is missing. However the reply dated 29 January 1987 is headed `Re: Proposed Youth and Student Hostel' with the word `travellers' missing. At best, all that can be said is that Council only partly answered his question.

126. The premises are described in the contract of sale as `Enfield Boarding House'. The contract is signed on 21 January 1987 and seeks settlement on 23 February 1987. Not just the land and building but the chattels as set out in the attached copy inventory of furniture are included in the sale. The `Inventory - of furniture etc. attaching the Enfield Private Hostel at 2 Enfield Street, St Kilda' identifies 42 rooms of which:

127. The balance contain beds, chairs, some with wardrobes, dressers, some with tables, and invariably with curtains. Although there are special conditions, none of them relate to a `let-out clause' in the event that written confirmation of use categorisation is not forthcoming from the council's planning department. The special conditions only relate to a purchaser nomination clause, an agreement to assume responsibility and liability for a City of St Kilda Health Department Notice numbered 3372 and an undertaking to provide the purchaser, his servants or agents and workmen with access to perform the works for which he has assumed liability under the above health notice.

128. Mr Townshend gave evidence that he understood existing use rights and the need for the premises to be a commercial operation as something which he could carry over. The Open Family Foundation had assured him that the premises were run on a commercial basis, and he made enquiries of council officers from different departments on how the premises were described within their particular jurisdiction. Although Mr Townshend is a solicitor and was responsible for due diligence in the legal requirements pertaining to his work for VBI (then known as Maranoa Close Pty Ltd) and associated entities, he said he entered into a contract for the purchase of 2 Enfield Street on the oral representation of Andrew Widdicombe, a junior planning officer and `others in the council' (not from the planning department) prior to obtaining any written confirmation of same. However he gave evidence that he had `an out' under the contract if a letter did not arrive. This was not substantiated by the contract of sale which was produced the following week to the Tribunal. He admitted that he did not discuss the contents of the 29 January 1987 letter with either Andrew Widdicombe or the signatory, George Bennett. Nor did Mr Townshend have a copy of the handwritten request that he had put into council for characterisation confirmation purposes. Although he says that he asked council for confirmation as to how they would treat a building used as a `student youth travellers' facility' the letter of 29 January (which refers to the request of 16 January) omits the word `travellers' completely from it.

129. Once council confirmed that `a town planning application for a youth and student hostel would be considered under the Melbourne and Metropolitan Planning Scheme definition of `residential building' Mr Townshend went away, checked the planning scheme himself and decided privately that his proposal did not require planning permission as it had existing use rights.

130. As soon as David Townshend took possession he commenced renovating the building in stages. Previous tenants to the Open Family Foundation stayed on, but only for approximately six months while Open Family tried to relocate them. David Townshend was interested in targeting a different market. However he was still interested in the cash flow from the existing tenants while improvements were taking place to attract a new type of tenant. VBI commenced marketing the property by way of brochures, phone calls, contacts with Tourism Victoria, contacts with schools and contact with other rooming houses in St Kilda, for example Hollywood House and Hampton House. Their first booking was the Mildura High School. Initially, guests included several school groups, a number of New Zealand working travellers, nurses from England who were there for `several months' and itinerant workers. Over time, and as they upgraded rooms, security and facilities, the word of mouth and emphasis on marketing began to attract more overseas travellers.

131. The building layout did not change dramatically, in that a similar number of rooms remained, with some small alterations to ablution facilities (showers, toilets and wash basins). However what did change was the number of beds per room as per the above mentioned health regulations.

132. There was a seasonal difference in the guest. A pattern emerged where the summer months have a higher percentage of `short-term travellers' who stay

`1-3 nights'. Over the winter months the length of stay increases, the market is different, and more long termers are targeted. The summer months see a high turnover rate of less than seven days.

133. Although Mr Townshend gave evidence that the winter season sees an occupancy length of 3-6 months for 60-70% of occupants, under cross-examination from Mr Cicero, Mr Townshend could not dispute that an analysis of one week's records in August 1997 elicited that 88% of the occupants in that week stayed for less than seven days.

134. Although there has been a large increase in the numbers of people accommodated at Enfield House from approximately 40 before VBI's purchase to around the 100 mark, the type of facility has remained much the same in that there are still only two kitchens and a similar number of ablution facilities. However prior to VBI's management, there would be generally one person per bedroom sharing the kitchen and bathroom facilities whereas now there are bunk beds with multiple numbers sleeping per room, sharing kitchen and bathroom facilities. In contrast to a previously `run down' building, improvements have been effected by Mr Townshend including upgrading, installation of smoke detectors and sprinklers (because of the increased numbers accommodated therein) and cosmetic upgrades.

135. Mr Townshend would not allow himself to be pinned down under cross-examination to a particular type of resident of his building. He insisted that whereas in summer a majority of them were short-term travellers, in the winter months there were long termers including workers or others who wanted a longer stay. In the end he agreed that he was in the business of providing budget accommodation and he would seek occupants from wherever he was able to draw them. For example, if a market dried up (eg the international tourist market) he would seek another market, just so long as he could keep the rooms occupied.

136. After David Townshend acquired Enfield House, he set about marketing the premises in a way they had never been marketed before. Mr Townshend admitted producing three brochures in and around the years 1987, 1988 and 1989 which contained the following information about 2 Enfield Street, St Kilda:

* low cost quality accommodation from $7.50 per night ...

* cooking and laundry facilities; free car parking; clean and friendly; no chores; twenty-four hour access; huge noticeboard; open fireplace; video nights; great rooftop parties; short walk to the beach; great fun atmosphere ...

* dormitory/single/twin double and group accommodation ...

* Melbourne's best accommodation for travellers, backpackers and students in exciting St Kilda;

* The Melbourne Travellers Inn and Backpackers Centre is fast becoming the first choice of budget travellers arriving in Melbourne. Situated at 2 Enfield Street, in the heart of St Kilda, Enfield House is a magnificent Victorian style mansion catering to travellers, students and working travellers. After opening a little over a year ago, the building has returned to its Victorian splendour and original charm, set in a lovely garden setting.

* Adjoining the entrance hall are two large rooms - one a pool/snooker room, the other a comfortable lounge room with an open fireplace.

* Also inside are a TV/video room, modern kitchen and laundry.

* There is a host of information on Melbourne, a huge noticeboard and friendly staff.

* The accommodation ranges from single and doubles to small bunk rooms and self-contained flats which are clean and comfortable.

* Above is our famous rooftop garden overlooking St Kilda just great for summer parties.

* Features - free continental breakfasts; ultra modern kitchen and laundry facilities including microwave ovens, washing machines and dryers; huge noticeboard updated daily with all the information on what's on in Melbourne including group activities; TV/video room; pool/billiards parlour with open fireplace; heating in all rooms; 24 hour hostel access; rooftop garden; free car parking; free nightclub passes; courtesy bus - call for courtesy pick-up; bikes available; help finding employment; discounts on restaurants, theatres, nightclubs; international telephones; travellers flats available; toll free bookings.

138. A third form of advertisement appeared in the Backpackers Resorts of Australia Pty Ltd Accommodation Guide 1990. The front cover of the little booklet reads: `Australia's leading independent group of hostels. Travellers low cost independent hostels Australia wide. December 1989. Free copy to house guests only'.

139. Page 92 of the little booklet contains premises No 52C which are described as `Melbourne Travellers Inn and Backpackers Centre - Enfield House' 2 Enfield Street St Kilda:

* Features rooftop sundeck, weekly food nights, free nightclub passes, pool room, football trips (Aussie Rules) each Saturday, cinema and theatre trips and weekly competitions;

* If you are looking for work try our work noticeboard!

* We also have Melbourne's largest range of long-term flats from $60.00 per week;

* To get there: Tram No 15/16 from Swanston Street, City to Stop 29 (Fitzroy Street);

* Free courtesy pick-up daily from `Skybus depot' in Franklin Street, daily 8.00 am and 6.30 pm.

140. Mr Townshend attributes his success in filling Enfield House with far greater numbers of people to the provision of more information to his guests. For example, they were able to tap people into job markets, they provided a great deal of information on tourist sites of interest and recreational facilities. He said it was the change in services provided to guests that changed the nature of Enfield House.

141. The sign on the gate to the entrance to Enfield House still reads `Enfield House Backpackers Welcome'. Their current clientele during the summer months late October to April is predominantly international travellers. But in the winter months which extend after April to October the mix of international persons and other guests dropped to a 50-50 mix and they make up their numbers from interstate groups or country groups. For example, until three years ago they attracted school groups in the winter months but that market has ceased so they search other markets.

142. As to the length of stay during the summer months and winter months seasons, there was a difference between the council's analysis and Mr Townshend's assertions. Mr Townshend asserted that the winter season accommodated

long-termers that would stay for periods around three months whereas the summer season would accommodate people staying less than three days. Mr Townshend showed the Tribunal e-mails and faxes he had received from managers he had employed which stated:

I was the manager of Enfield House for three-and-a-half years from 1994 until 1997 ... During these years in the winter months, from April until November, we averaged 75% long-term guests and 25% short-term guests. Our long-term guests tended to be employed by employment agencies, large firms, restaurants, hospitals, large firms, factories and the Casino when it opened. Our focus during the summer months changed to short term guests and we would charge high nightly rates to attract quality guests. ... Yours sincerely Daniel McMahon

It is my recollection that while manager of 2 Enfield Street, that during the winter months we marketed heavily towards long term guests. Somewhere in the order of 50%+ of our clientele comprised long termers. In the summer months this figure decreased however due to the Crown Casino opening and the Grand Prix work contracts, we had significant long term clientele which comprised a figure I would estimate of more than 40% .... Brett Howard

143. It is noted that neither of these comments define `long term' and `short term' and so do not necessarily tie in with Mr Townshend's description of long term.

144. On the responsible authority's analysis of the occupancy rate during a week in winter 15 August 1997-21 August 1997 (taken from the card system maintained by the respondent) 88% of the guests who were accommodated during that week stayed for seven days or less.

145. On the sixth day of the hearing Mr Townshend admitted that he was in the business of providing `budget accommodation'. Although his current client group was the youth traveller market - both international and interstate - who primarily stayed for short term stays of one week or less, if there was a change in that market he would adapt his marketing to a different client group, in order to fill Enfield House and his other accommodation. He admitted that the emphasis was on `backpackers' and never mentioned the word `boarding house' in his advertising brochure, although he would advertise under the boarding house classifieds in the local paper as well. Mr Townshend denied promoting a different business to that which 2 Enfield Street had been known. To use Mr Townshend's own words `commercial accommodation was the business and we targeted a different section of the market'.

146. Mr Townshend agreed with Mr Cicero that in describing his current clientele, they do primarily have a home to go back to when they leave Enfield House. Enfield House is not their home.

147. When VBI advertises to the domestic market they do not advertise the premises as a backpackers hostel but call it a place for travellers.

ANALYSIS OF TWO ISSUES - EXISTING USE RIGHTS AND ESTOPPEL

148. The central issue in both proceedings is whether the premises are lawfully able to be used for their present purpose without a planning permit by virtue of existing land use rights attaching to the land. To that end the following questions must be answered:

i) Firstly, for what purpose was the land lawfully used immediately prior to the relevant date? A sub-question that must be asked and answered is what is the relevant date? Is the relevant date prior to the inception of planning controls in 1954 or, pursuant to cl.63.11 of the Port Phillip Planning Scheme, 10 August 1984, being 15 years prior to the date of the applications to this Tribunal? The Application for declaration is dated 11/8/99.

ii) Secondly, for what purpose is the land currently being used?

iii) Thirdly, is the purpose for which the land is currently being used different to the purpose for which the land was lawfully used immediately prior to the relevant date?

149. The sub-question that has been asked can be swiftly answered in this case, and that is that a finding as to the relevant date makes no difference, as I find that the use of the premises prior to 1954 is the same use of the premises in 1984. I explain later.

ANALYSIS OF THE EVIDENCE IN ACCORDANCE WITH CASE LAW

The Case Law Tests - Existing Use Rights and Characterisation

150. The thin golden thread to be followed through every existing use right case is the principle espoused in Shire of Perth v O'Keefe and Another [1964] HCA 37; (1964) 110 CLR 529, 535 (per Kitto J); [1964] HCA 37; (1964) 10 LGRA 147 at 150:

First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the ..... law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorised ....whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree....and for that reason borderline cases will inevitably arise in which opinions differ.

151. Subsequent cases have illustrated the difficulties inherent in this jurisdiction when dealing with existing use cases.

152. In Nunawading CC v Harrington [1985] VicRp 64; [1985] VR 641 at 645 the following useful principles were also enunciated:

1. The purpose of the non-conforming use is to be characterized by the appropriately designated purpose of the actual use at the approval date and not by its classification in the list of prohibited purposes such as is to be found here in Column 5 of the Planning Scheme 0rdinance: Shire of Perth v. O'Keefe [1964] HCA 37; (1964) 110 C.L.R. 529...........Here the parties agreed that at the material date (`the approval date') the appropriate designation was a `bakery'.

2. The use of premises for a given purpose is not necessarily interrupted when activities for that purpose are temporarily stopped: Rosenblum v. Brisbane City Council [1957] HCA 98; (1957) 98 C.L.R. 35, at p. 45; Schwerzerhof v.Wilkins [189811 QB. 640.

3. If premises are unused they cannot be said to be used for a given purpose, notwithstanding an intention to do so: Rosenblum.

4. Where land may properly be regarded as an integrated whole it is not necessary to show that all of it is used for the given purpose. Where part of the land is unused but part is used for the given purpose, the whole of the land may be regarded as used for that purpose: Eaton & Sons Pty Ltd v. Council of the Shire of Warringah [1972] HCA 33; (1972) 129 C.L.R. 270.

5. Use of land does not necessarily mean physical use: Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 C.L.R. 493; (1959) 100 C.L.R. 1; Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 C.L.R. 1; Eaton & Sons v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 C.L.R. 270, at p. 273. These authorities also necessarily establish that the use of subject land may serve a purpose of use of other land.

6. In the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: see Mason A.C.J., Deane and Dawson JJ. in Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 A.L.R. 295, at p. 300; Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 C.L.R. 1, at p. 25; Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 C.L.R. 138, at p. 144; [1973] HCA 65; 2 A.L.R. 145, at p. 149.

7. Land kept vacant for use as the needs of a business demand is not of necessity properly designated as land not in existing use but merely intended for future use. Much will depend on the extent of its integration with land in actual physical use and the nature of the business being conducted: Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 C.L.R. 290, at p. 274, per Barwick C.J.; Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 C.L.R. 1.

8. In our opinion, it follows that use of the subject land `as a bakery' is not necessary for it to be used for `the purposes of a bakery', also that `use for the same purpose' is not the same as `the same use'. 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.

153. In Cascone v Whittlesea, (1993) 11 AATR 175 at 190, Ashley, J enunciated the following principles that have emerged with respect to characterising land use and the relationship with definitions in planning schemes:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is `Yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is `No', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase `real and substantial' qualifying `use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between `purpose of use' and `use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of innominate use. It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the `real and substantial' purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above.

154. In St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378 the Full Court of the Supreme Court of Victoria (Young CJ Crockett and Southwell JJ) held:

Where a planning scheme does not purport to cover every possible use to which the land or buildings might be put, by, for example, the use of the words `any other purpose', a planning authority need not regard a proposed use as coming within any of the definitions in the planning scheme if such placement is inappropriate in terms of the planning scheme and the definitions.

Characterisation of motel as opposed to a residential building - a useful case

155. The decision of Balmford J in the Victorian Supreme Court case of Derring Lane Pty Ltd v Port Phillip CC No. 7530 of 1998 is useful on the characterisation of a proposal as a motel as opposed to a `residential building'. Her Honour had to decide whether before subdivision, when the building operated as a motel, the purpose for which it was built, was properly described as a `residential building' so as to fall within Class 1. The case concerned the requirement for a monetary contribution upon subdivision. She agreed that:

... the ascertainment of the meaning to be given to ordinary non-technical English words such as `residential' and `building' involves a question of fact and not a question of law.

(See the extensive discussion of this principle by Tadgell J in Francheschini v Melbourne & Metropolitan Board of Works (1980) 57 LGRA 284 at 290 and following.)

156. In analysing dictionary definitions and case law, she concluded that `residential building' involved the characteristic of a permanent place of abode in contrast to a motel, one characteristic of which is to provide temporary accommodation. Balmford J said:

No issue arises as to the meaning of the word `building'. As to `residential', the relevant meaning given in the Second Edition of the Oxford English Dictionary (`the Dictionary') is:

Serving or used as a residence; in which one resides.

That definition depends on the meaning of `residence' and `reside'. The relevant meanings of `residence' in the Dictionary are:

To have one's usual dwelling-place or abode; to reside.

The circumstance or fact or having one's permanent or usual abode in or at a certain place; the fact of residing or being resident.

The place where one resides; one's dwelling-place; the abode of a person (especially one of some rank or distinction).

A dwelling, abode, house, especially- one of a superior kind; a mansion.

The relevant meaning of `reside' in the Dictionary is:

To dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.

As Wilcox J said in Hafiza v Director-General of Social Security (1985) ASSC 92-052 at 90, 607:

There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever.

Latham CJ in Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 99 adopted the words of Viscount Cave LC in Levene v Inland Revenue Commissioners [1981 AC 21] 7 at 222, as to the meaning of the word `reside'. His Honour said:

1 should have thought that there was no doubt that a man resided where he lived, and 1 do not think that there is any interpretation of the word `reside' by the courts which makes it impossible to apply the ordinary meaning of the word `reside' in the present case. In Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at 222, Viscount Cave LC said:

. . . the word `reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning `to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'. No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word `reside'. In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.

On that basis, the phrase `residential building' must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode.

The Dictionary defines `motel' by reference to `hotel', as:

A hotel catering primarily for motorists; specifically one comprising self-contained accommodation with adjacent parking space.

The relevant meaning of `hotel' given by the Dictionary is:

A house for the entertainment of strangers and travellers, an inn; especially one that is, or claims to be, of a superior kind.

The definition of `entertain' in the Dictionary includes `accommodate'.

Thus a motel is in effect defined as `a house for the accommodation of strangers or travellers, catering primarily for motorists'. Reading that definition with the definitions relevant to `residential' and the passages from Miller and Levene cited in paragraph 15 above, it will be apparent that the concept of a motel, accommodating strangers and travellers, is very far from the concept of a `residential building', being a building in which people have their settled or usual abode.

Characterisation of the use in prior legal decisions concerning this site

157. On 6 April 1989, in Cook & Ors v St Kilda CC and Maranoa Close Pty Ltd P88/1753 (objector's appeal) and VBI Properties Pty Ltd v St Kilda CC P88/1902 (conditions appeal) Messrs Byard and Bennie were silent on characterisation as a `boarding house' but based their decision on the basis of the building continuing to be a `residential building' (on the basis of the lawyers' opinions). They held that even on the basis of existing use rights as a `residential building' they would not allow the development sought by VBI.

158. However, in passing, they commented that the actual use appeared to fall outside the definition `residential building' and within that of a `tourist establishment'. Their analysis (at page 8) of the use falling outside the definition of `residential building' is similar to Justice Balmford's analysis in Derring Lane Pty Ltd:

We consider that an important part of the distinction between a residential building and a tourist establishment is the relationship of the inmates to it. A residential building is the home or abode, even if only temporarily, of a person living there. On the other hand a traveller, tourist or person engaged in recreational pursuits might stay temporarily at a tourist establishment but his or her home would be elsewhere. This distinction has been overlooked by the applicant and the Responsible Authority and its legal advisers. We are not persuaded by the case of the Responsible Authority and its legal advisers that the use is a residential building rather than a tourist establishment. There is considerable weight in the Objectors' case to the contrary. However, we do not find this necessary, or indeed strictly relevant, to determine this characterisation issue.

159. What is interesting in that analysis is that whether the use was characterised as a `residential building' or a `boarding house' seems to make no difference to the attributes applicable to both which are not applicable to a `tourist establishment' or some other innominate use. At that point in time it was important, because `tourist establishment' was a prohibited use, for which no permit could be granted. The discussion in that 1989 case then proceeded to discuss the lawfulness of imposing `use' related conditions on a `development' application where no use permission was required. The Tribunal declined to allow the diminution of open space by the building works proposed.

Permit directed to issue on 22 November 1990 by Member Rooke

160. In VBI Properties Pty Ltd v St Kilda CC and Cook (1990/33275) Member Rooke described Enfield House as `28 bedrooms with a total of 111 bunks' and directed a permit `for extensions to the dining area to and use as a residential building (youth hostel) of premises No 2 Enfield Street St Kilda'.

161. Mr Wright QC says that none of the changes that have taken place has altered the basic purpose for which the land is used, and it is that purpose which has the protection of existing land use rights. He argues that the activities have merely changed and increased (by numbers of beds and facilities provided) but that is acceptable within the legal principles, so long as the same purpose is served.

162. I disagree that the same purpose is served. I find the evidence in this case compelling.

163. I find on the facts, that the use of the premises prior to the introduction of planning controls as well as in 1984[1], comprised use for the purpose of a `boarding house'. That is the `existing use right' that attached to and would have continued to run with the land after VBI purchased the premises in 1987.

164. What is a boarding house? It is premises which do not comprise self-contained facilities, generally used to house persons as their settled or usual abode, or at least their permanent place of abode for the time being.

165. Even if 2 Enfield Street was being used by the OFA, to a small extent, to house street kids, I find that that did not change the purpose to which the premises were put during OFA's ownership, ie as a boarding house, a place of permanent, settled or usual abode in non self-contained premises. The whole purpose of housing the street kids was to try to give them a settled abode, away from parks, park benches and the like. Additionally, the dominant purpose of OFA's use was clearly still as a commercially operated boarding house - at least as far as the main Victorian mansion building was concerned. It also appears that until VBI took over, the rear flats continued to be leased as self-contained flats by OFA, as they had been prior to OFA's purchase in 1982.

166. I also find on the facts that the present use of the premises is use for a different purpose, to wit, budget tourist accommodation, or a `backpackers hostel' to use a colloquial expression, and that use of the premises for that purpose has occurred since 1987. I draw this conclusion for the purpose of the premises generally to accommodate strangers and travellers as their temporary place of abode.

167. The following combination of facts leads me to this conclusion:

(i) Change in the nature and type of occupant from relatively long term residents to transient short term customers;

(ii) Change in the nature and purpose of the premises from accommodation for persons for whom these premises are their home to accommodation primarily for travellers;

(iii) Change in the marketing of the premises from monthly lets to nightly lets whenever possible;

(ii) The seasonal nature of the business, with the emphasis on filling the rooms with short term customers as much of the year as possible;

(iii) Increase in the numbers of persons able to be accommodated in each room by the use of bunk beds and communal sleeping arrangements;

(iv) Change in the marketing of the premises to tourists and travellers through advertising;

(v) The promotion of tourist activities and the provision of tourist information;

(vi) The promotion of social nights and the collection of travellers from the city bus depot.

168. It makes no difference that during winter months, there may be longer lets, because that is a seasonal issue. The dominant purpose and main intent is to house travellers on a short term basis.

169. I find on the facts that the present use is a use for a purpose different to that which would have been preserved by the `existing use right'.

170. Mr Wright argues that the use should be characterised as use for the purpose of a `residential building' rather than as a `boarding house'. I disagree. O'Keefe, Harrington and Cascone all make it clear that the purpose should not be characterised by a definition or expression used in a planning scheme, but by asking what is the appropriate designation of the purpose being served by the use of the premises? Just because boarding house may `fit' within the `residential building' definition does not mean the latter was the designated purpose.

171. Mr Wright QC is right when he says that care must be taken to distinguish between a change in the purpose for which land is used and a change in the way in which what is essentially the same land use is described or identified because new colloquial terms emerge. I agree. Nevertheless, I find that the change in description is a result of the change in the designated purpose and not just a change in language.

172. I was urged by David Townshend to consider the purpose as `accommodation' or `budget accommodation'. If `accommodation' were the `designated purpose' then changes in the activities, such as marketing to a different client base and running the premises differently, would still be within the Harrington or Cascone limits. But if the designated purpose is `boarding house' - these changes are not within that parameter, but alter the purpose to a different purpose. Is such a wide designation of purpose the correct designation? So much fits into this broad land use category - houses, flats, hotels, motels, hostels, and the list goes on. The current VPP format nesting definitions are a good indicator of how broad that category can be considered. But in O'Keefe, such a broad category could also be found, ie `industrial' or `light industrial' and yet the High Court held that it was too broad a categorisation and indeed, the narrower individual actual purpose was the correct categorisation.

173. Mr Wright, QC submitted that as the result of representations made by Council officers and the conduct of the Council and its officers prior to and at the time of VBI's acquisition of the property at 2 Enfield Street, St Kilda, the Council is estopped from denying either of the following facts.

(a) Firstly, that shortly prior to its acquisition by VBI the land at 2 Enfield Street was being used for the purpose of a residential building.

(b) Secondly, that after the acquisition of the land by VBI Properties it was used for the purpose of a residential building initially by VBI Properties, and more recently by MTS Management Services Pty Ltd.

174. The first episode is evidenced by discussions with council staff and a council letter, which reads:

... a town planning application for a youth and student hostel would be considered under the Melbourne and Metropolitan Planning Scheme definition of `residential building'.

175. The second episode is evidenced by what he characterised as `corroborative evidence' being representations by council's legal representatives.

176. The first representation by council's lawyers is this letter of advice from Mr John Cicero to council on 6 July 1988. Mr Cicero, who still acts for the council, now admits he erred.

The Council has before it an application to extend the building currently used as a Youth Hostel.

It has been suggested that the use proposed could fall within the definition of `Tourist Establishment' rather than `Residential Building' and thus be prohibited in the Zone.

The writer appeared before the Tribunal in Appeal No. P87/1716, which was an appeal by a Company which we understand has the control of the Youth Hostel at 2 Enfield Street. The use proposed in relation to the premises in, that appeal situated at 28 Grey Street, St Kilda was described by the Tribunal as `Travellers Hostel'. The Tribunal heard submissions that the Hostel would provide economy short term tourist accommodation as well as other forms of accommodation. It was not suggested in that appeal by the Tribunal that the parties were wrong in their assessment of the use as falling within the definition of `Residential Building'.

Residential Building is defined in the Ordinance to mean:

... any building or portion of a building containing more than ten habitable rooms which is used or intended, adapted or designed, to be used either temporarily or permanently for the purpose of human habitation by two or more persons who do not comprise a family but does not include such accommodation where it forms part of an educational establishment, a hospital, a hotel, an institutional home, a motel, a reformative Institution, a retired persons residential community or a tourist establishment.

`Tourist Establishment' is defined In the Ordinance as to mean:

...a building works or land used for the purpose of providing accommodation for travellers, tourists or persons engaged in recreational pursuits and for the provision of facilities for recreation for such persons, and includes caravan parks and the like but not a motel.

The Supreme Court of Victoria in the case of Shopping Town Motor Repairs Ltd -v- The Mayor Councillors & Citizens of Doncaster & Templestowe (5PABR 367) looked at the. definitions of Panel Beating Works and Light Industry under the Ordinance. In the context of that decision, His Honour Mr Justice Phillips endorsed the approach of Mr Justice Marks in Pacific Seven Pty Ltd -v- City of Sandringham & Ors (1982) VR157 on page 162 of that decision. His Honour Mr Justice Marks said this of the Ordinance:

...All this leads me to say is that it is desirable to recall that the definition appears in the context of a Planning Scheme, to be administered largely by lay-men entrusted to interpret occupational and trade designations in the light of what is understood by common parlance and practices in the fields, trades, or areas concerned ...

In our view, applying this `laymens approach' to the definition, even though it appears that the proposed building will provide 1ow cost accommodation for young travellers, it does not have the usual trappings of a `tourist establishment'. That definition requires that more than just accommodation be provided for travellers, tourists or persons engaged in recreational pursuits. It requires that a building or land used for the purpose of providing such accommodation must also provide facilities for recreation for such persons, for example swimming pools, water slides, tennis, squash courts, gymnasium and the like. As we understand it, no facilities of this type are to be provided as part of the application. No such facilities were provided or were proposed to be provided at number 28 Grey Street.

Therefore, whilst on the one view it could be argued that the proposed building will provide accommodation for travellers, tourists or persons engaged in recreational pursuits, it cannot be said that such building will also provide the type of facilities contemplated by the definition for recreation for such persons. Also it cannot be said that the proposed building will solely be used for the purpose of providing accommodation for travellers, tourists or persons engaged in recreational pursuits.

Submissions were made in relation to 28 Gray Street that other types of persons could and would be accommodated there.

The definition of `Tourist Establishment' is to be compared with the more general definition of `Residential Building'. All that is required to satisfy the criteria in that definition is that the proposed building contain more than ten habitable rooms which is used or intended, adapted or designed to be used either temporarily or permanently for the purpose of human habitation by two or more persons. The definition specifically excludes a `Tourist Establishment'. All that is required in this definition that there be a purpose of human habitation. There is no reference to tourists or travellers nor is there any reference to the provision of facilities for the recreation of persons residing in a residential building.

For all these reasons, it is our opinion that the proposed use more appropriately falls within the definition of `Residential Building' rather than `Tourist Establishment.

Please contact us if we can be of any further assistance.

177. The next representation by council's lawyers occurs on 15 December, 1988 when its counsel, Simon R Molesworth lodged the following written submissions in Edward Cook and Others v City of St Kilda and VBI Properties Pty Ltd (Appeal Nos P88/1753 (Objectors' Appeal) and Appeal P88/1902 (Conditions Appeal)).

This Hearing involves two appeals dealing with the one application - the first being the Applicant's appeal against certain conditions proposed in the Responsible Authority's Notice of Decision to Grant a Permit - the second being an Objectors' appeal against the decision itself.

This Written Submission will act out the background facts, examine the critical issues and will then explain the basis and justification for the Responsible Authority's decision.

It will become apparent that the existing use of the Appeal Site is objected to by many persons who reside in close proximity to it due to detrimental impacts of the existing operation on their residential amenity. These objectors argue that the use is no longer that of a boarding house, which falls within the definition of `residential building', but rather it is a `tourist establishment' which is prohibited in the Residential C Zone.

The Responsible Authority, on the other hand, is of the opinion that the existing use is still that of a `residential building' and that, as such it has the benefit of existing use rights. However, acknowledging the need to place legal restraints upon the use of the premises, due to the existing and likely disturbance to the surrounding area, the Responsible Authority is strongly of the view that conditions ought to be imposed. It necessarily follows that unless a permit is granted there will be no opportunity to impose conditions.

179. I extract the submissions made by VBI and opposed by the council.

THE RESPONDENT'S SUBMISSION ON APPLICATION OF THE PRINCIPLE OF ESTOPPEL

It is submitted that a statutory authority acting in the exercise of its statutory powers or functions is susceptible to the doctrine of estoppel. In this regard a distinction can be drawn between representations of law and representations of fact. Whilst a representation of law cannot operate to contract or expand the powers conferred upon an authority by statute (Shire of Kilmore v Dally [1989] VicRp 26; (1989) VR 314), a representation of fact upon which a party acts can raise an estoppel against the authority in relation to the exercise of those powers (Lever Finance Ltd v City of Westminster [1970] EWCA Civ 3; (1971) 1 QB 222).

180. It is clearly established that the characterization of a particular land use is a question of fact (Francheschini v MMBW (the `Odyssey House Case') (1980)

1 PABR 276, Tadgell J.; City of Springvale v Heda Nominees Pty Ltd (1982)

1 PABR 287, Southwell J.).

181. Accordingly, if a planning authority, or an officer of that authority acting within his ostensible authority, represents that a particular use or proposed use of land is or will be characterized in a particular way, and that representation is acted upon by the person to whom it is made, the authority cannot thereafter resile from the characterization, or seek to characterize the use differently.

182. In Lever Finance Ltd v City of Westminster, Supra, Lord Denning MR said:

If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be .

183. See also Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) 67 LGRA 23 8 at 245 (Full Court of Federal Court):

The position in the present case is that at all material times officers of the responsible authority, acting within their ostensible authority, represented to the respondent, VBI Properties, that both the existing use of the land by the Open Family Foundation and the proposed use of the land by VBI, which had been fully described to Council officers, were properly characterized as a residential building for the purposes of the applicable planning controls. Moreover, the responsible authority consistently maintained this characterization in relation to both the subject land and other land in the municipality used for the same or similar purposes. It is submitted that the responsible authority cannot now prosecute these applications on the basis of a different characterization of the use.

The council's first response to this argument is that as a matter of legal principle where a duty is vested in a body by statute an estoppel cannot prevent that body from fulfilling that duty according to law.

In this case the Applicant is under a statutory duty to ensure the provision of its planning scheme are complied with. Section 14 of the Act imposes as one of the duties upon the Council the following:

Authority for this legal principle is to be found in the decision of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 92 ALR 93 and of the Land and Environment Court of NSW in Holiday-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127.

In the statement of Mr David Townshend he refers to various discussions and investigations including an on site meeting on 15 January 1987 with representatives of Health & Building (presumably being Council employees but not so stated). He then refers to a letter dated 29 January 1987 from Mr George Bennett to Mr David Townshend. There are several points to note about that letter:

1. It postdates the date the Contract of Sale was signed by Mr Townshend. In these circumstances it could hardly be said that this written document, which is the only document referred to on this issue of estoppel, could have been the basis for Mr Townshend deciding to proceed with the purchase of the property.

2. In any event, the letter, in so far as is relevant stated:

1 can confirm that a town planning application for youth and student hostel would be considered under the Melbourne and Metropolitan Planning Scheme definition of `residential building'.

This statement in no way could be construed to mean that the use of the land for the purpose of a youth and student hostel was a continuation of an existing lawful use of land.

On the contrary, if the use of the land for the purpose of a youth and student hostel was a continuation of an existing lawful use of the land at that time, then there was no need for an application to be made for use for that purpose.

If anything, this letter supports the view that at that time the author of the letter did not consider that the use of land for the purpose of a youth and student hostel was necessarily the continuation of the existing use of the land for the purpose of the lawful use to which the land had been put to.

It is submitted that on the basis of the material that has been supplied to date on this issue the Tribunal could not be satisfied that the principles of estoppel, even if they were to apply have been made out.

184. The Federal Court case of Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 92 ALR 93 at 109 (Kurtovic) sets out the classic principal of estoppel:

Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.

185. Shire of Kilmore v Dally [1989] VicRp 26; [1989] VR 314, sets out the classic position in respect of an estoppel claim against a council:

... the [council] is a statutory body, relying upon legislation as the source of its powers. Here, the [council] is bound to consider the application in the light of the provisions of the planning scheme: the [council] is under an obligation to administer the scheme according to its terms: it cannot, by its own deeds or misdeeds, escape that obligation, nor bestow upon itself powers beyond those to be found in the terms of the scheme.

186. In Collingwood Football Club Limited v City of Collingwood (1992) 10 AATR 12, Deputy President Barton repeated that position apropos the Tribunal:

It is settled law that the Tribunal must determine the issues raised by that question in accordance with law. In order to determine those issues in accordance with law, the Tribunal must have regard (indeed it is common ground that it must have regard) to the appropriate tests enunciated by the courts to determine those issues. The critical test is the test which has been enunciated by the High Court in Shire of Perth v O'Keefe. The answer to the application of that test cannot be lawfully circumscribed by any estoppel because to do so would be to fetter the Tribunal in the discharge of one of its lawful obligations.

187. In E_l Alam v Council of the City of Northcote; El Alam v Byard and Another_ [1996] VicRp 95; [1996] 2 VR 672, Mandie J held:

I think that it would be contrary to public policy to bar or fetter a responsible authority in the exercise of its public statutory right to seek an enforcement order.

188. Mr Wright, QC relied upon Brickworks Ltd v Waringah Shire Council [1963] HCA 18; (1963) 108 CLR 568, Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222 and other authorities to persuade me that the council were estopped from resiling from the position outlined in its letter dated 29 January 1987 and repeated by its legal representatives from time to time until Deputy President Byard handed down his decision in VBI v St Kilda CC (P88/1902) and Cook v St Kilda CC (P88/1753) on 6 April 1989.

189. However, in Brickworks, Windeyer, J himself doubted the application of the estoppel principle against public authorities to the facts of that case. He said at page 577:

... estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion'. There is no doubt about the principle; but I doubt its application to this case.

190. Windeyer, J distinguished the Southend-on-Sea case because:

... there the corporation had, by its engineer, said that its permission for the use of land as a builders' yard was not in fact and in law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the corporation had in effect said to the respondent company there `you do not need out permission; we have no discretion to prevent your action'. In the present case on the other hand, the council said in effect, `you do need our permission; we have a discretion which we have exercised in your favour'. It seems to me that, in the circumstances of this case, the council was estopped from denying that it had exercised its discretion in the manner it had said it had done.

191. And in Churchill Fisheries Export Pty Ltd v Director-General of Conservation and Others [1990] VicRp 85; [1990] VR 968, Beach J upheld the principle that estoppel could not be raised against the performance of a statutory duty, and distinguished Lever as the court's power to stay a proceeding if the prosecution constitutes an abuse of process:

...it cannot be argued that estoppel by representation can prevent the performance of a statutory duty or the exercise of a statutory discretion.... The court has no power to prevent the Crown beginning a prosecution against a person. Its power is to stay a proceeding if the prosecution constitutes an abuse of process.

...It has often been said that a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it. ...and where an owner, who was about to build on his land, was told that no planning permission was required, and he acted on it by erecting the building the Minister was not allowed to go back on it: see Wells v Minister of Housing and Local Government (1967) 1 WLR 1000 and Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222.

192. Southwell J in Shire of Kilmore v Dally distinguished Lever, saying it:

... should be regarded as a case which was decided upon its own peculiar facts and if it were suggested that it lays down some guiding principle, then the statements in it...must be taken with considerable reserve.

193. Gummow J in Kurtovic at 112 analysed the exceptions to the rule against estoppel in the following succinct manner:

But in any given case, a discretionary power reposed by statute in the decision-maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision-maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. This appears to have been the explanation given by the English Court of Appeal in Western Fish Products v Penwith District Council and Anor (1981) 2 All ER 204 @ 219; cf Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222. Another example may be found in the judgement of Windeyer, J. in Brickworks Ltd v Waringah Shire Council [1963] HCA 18; (1963) 108 CLR 568 @ 577.

194. In Kurtovic the estoppel argument failed at the outset for want of a sufficiently clear and unambiguous representation that the respondent would be free to remain in Australia if he gave no further cause to be deported. In other words, the exercise of discretion was not `spent'.

195. The Lever Finance case concerned an officer making a delegated decision regarding an `immaterial variation' which he had delegated power from the council to make. The officer decided the variation was immaterial, the permitholder acted on that decision, and the English Court of Appeal held council was estopped from revoking that position.

196. I think that Lever Finance can also be distinguished on the basis that it dealt with delegated powers and a decision to permit a minor modification pursuant to those delegated powers. The present case does not involve the exercise of a discretion.

197. In Collingwood Football Club Limited v City of Collingwood (1992) 10 AATR 12, Deputy President Barton also discussed the integral element of reliance in the application of the principle:

It is settled law that, in order that an estoppel by representation may be raised, the following conditions must be fulfilled:

(ii) the representation must be precise and unambiguous;

(iii) there must have been an intention, or conduct raising a reasonable presumption thereof, that the injured party was meant to act on the representation as true;

(iv) the party relying on the representation must have acted on it to his own detriment;

(v) the mis-statement must have been the proximate cause of the detriment, or, perhaps more strictly, of the error which caused the detriment -

see, as one example of authorities too numerous to mention, Kogarah Municipal Council v. Johnstone 41 L.G.R.A. 366 at 374.

The Case Law Tests - Representations, Reliance and Estoppel

198. Western Fish Products v Penwith District Council and Anor [1981] 2 All ER 204, is an excellent analysis of representations made there by a statutory authority.

Furthermore, the letter of 26 April was not a representation because it was not confirmation that the plaintiffs had existing use rights entitling them to use the site for the purposes they proposed; but, even if it was, the plaintiffs had not acted on it to their detriment since they had relied not on any representation but on their own belief that they had an existing use right when carrying out their building works without planning permission. Accordingly, on the facts no estoppel arose, and even if one did the plaintiffs could not reply on it. (See p216 f to p217d, post).

The plaintiffs wrote two letters on 8 and 17 April, supplying information. In reply on 26 April, Mr Giddens, on behalf of the chief planning officer, wrote a letter as follows:

Thank you for your letter of 17 April, 1976. Details of the floor areas allocated for the various commercial uses on the site when last so used have now been supplied by your architects. These figures have been checked and it is agreed that these accurately reflect site conditions. Accordingly it is confirmed that the limits of the various component parts of the commercial undertaking as now existing appear to be established.

Was the letter of 26 April a representation and, if so, of what?

We are unable to accept that a person familiar with the relevant facts known to both the writer and the recipient of the letter, reading the letter with reasonable care, could reasonably have read it as giving the plaintiffs confirmation that there was an existing use right which would cover the uses contemplated by the plaintiffs' scheme without the necessity for planning permission in respect of use. Whether Mr de Savary's belief that the letter contained that confirmation was because he was so firmly convinced of the `incontrovertible right' that he did not read the letter with due care, or whether it was for some other reason, we are unable to see how, taking fully account of the relevant circumstances and of the context of the letter itself and of the letters and conversations which led up to it, the words `Accordingly it is confirmed that the limits of the component parts of the commercial undertaking as now existing appear to be established' could reasonably be understood to be a confirmation of that which the plaintiffs allege it did confirm.

At the most the letter means that Mr Giddens on behalf of the defendant Council was satisfied that the buildings on the site had been used previously for the purposes written on the plan and that the dimensions of the respective building used for those various purposes were correctly shown. If and in so far as it could be interpreted as confirming any use right, it was not more than a use right for the purposes for which the site had previously been used.

The second reason why the plaintiffs' own case cannot succeed is this. The defendant Council's Officers, even when acting within the apparent scope of their authority, could not do what the 1971 Act required the defendant Council to do; and if their Officers did or said anything which purported to determine in advance what the defendant Council themselves would have to determine in pursuance of their statutory duties, they would not be inhibited from doing what they had to do. An estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty (see Spencer Bower and Turner on Estoppel by Representation (3rd Edn, 1977, p141) and the cases there cited).

There seem to be two kinds of exceptions. If a planning authority, acting as such, delegates to its officers powers to determine specific questions, such as applications under ss.53 and 94 of the 1971 Act, any decisions they make cannot be revoked. This kind of estoppel, if it be estoppel at all, is akin to res judicata. Counsel for the Department of the Environment accepted that there was this exception, as did Counsel for the defendant Council in his final submissions. Lever (Finance) Ltd v Westminster Corpn [1970] EWCA Civ 3; [1970] 3 All ER 494 [1971] 1 QB 222 can, we think, be considered as an application of this exception.

Whether anyone dealing with a planning officer can safely assume that the officer can bind his authority by anything he saw must depend on all the circumstances. In the Lever (Finance) Ltd case [1970] EWCA Civ 3; [1970] 3 All ER 496 at 501 [1971] 1 QB 22 at 231 Lord Denning MR said `Any person dealing with them [ie. officers of a planning authority] is entitled to assume that all necessary resolutions have been passed'. This statement was not necessary for the conclusion he had reached and purported to be an addendum. We consider it to be obiter; with all respect, it stated the law too widely.

We can deal with the second exception shortly. If a planning authority waives a procedural requirement relating to any application made to it for the exercise of its statutory powers, it may be estopped from relying on lack of formality.

The extension of the concept of estoppel beyond these two exceptions, in our judgment would not be justified. A further extension would erode the general principle as set out in a long line of cases of which the decision of the Privy Council in Maritime Electric Co Ltd v General Dairies Ltd [1937] I All ER 748 AC 610 and the judgement of the Divisional Court in Southend-on-Sea Corpn v Hodgson (Wickford) Ltd [1961] 2 All ER 46, [1962] 1 QB 416 are notable examples.

Analysis of the facts and application of the estoppel principles

199. The respondent fails in his estoppel arguments because the statements and circumstances are not cloaked with the qualities and attributes that pertain to those rare situations where estoppel arguments have been successfully upheld.

200. The respondent fails in his estoppel arguments because there was no representation of fact in the first place, and even if there was he did not rely on it, and even if he did estoppel cannot lie against a statutory authority.

201. The respondent fails in his estoppel arguments because:

(i) the written letter of 29 January makes no mention of `travellers' at all and is therefore an incomplete response to the question which Mr Townshend says he posed to officers;

(ii) the statement is not a representation that youth and student hostel is a `residential building', just that it would be considered under that definition if a planning permit application were lodged;

(iii) the statement clearly and unambiguously contemplates that a permit would be required or lodged;

(iv) the statement does not enjoy the status that the respondent attributes to it. The respondent attributes a far higher quality to it than the facts bear out. The statement does not clearly and unambiguously state that a youth and student hostel is a `residential building', just that it "would be considered under the MMPSO definition of `residential building'". This even implies that `residential building' is a catch-all phrase, under which the proposal may be permissible when considering a change from an existing use right as a boarding house to a different purpose of `youth and student hostel';

(v) the statement was not relied upon by the respondent, who signed an unconditional contract of sale with no let-out clause prior to the letter arriving from the Responsible Authority;

(vi) the statement was not relied upon by the respondent, who has admitted to going away, reading the planning scheme definitions and deciding himself that if a youth and student hostel were a residential building, so was the existing use and he would not need a permit for any change in the way he operated the premises.

(vii) the statement did not amount to a spent exercise of discretion.

202. Accordingly, the council cannot be estopped from denying that the use of Enfield House immediately prior to and after VBI's purchase, enjoys existing use rights as a `residential building' which entitles the respondent to operate the premises as it currently does without the need for planning permission for use.

203. I make the interim decision that the premises at 2 Enfield Street, St Kilda are not currently being used for a purpose which is allowed by any `existing use rights' attaching to the land (if any).

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