1. In Application P1096/2018, the decision of the responsible authority is set aside.
2. Pursuant to section 97P of the Planning and Environment Act 1987 the responsible authority is directed to issue a certificate of compliance pursuant to section 97O of the Planning and Environment Act 1987. The certificate of compliance should be completed as follows:

The land contained in certificate of title Volume 08165 Folio 383, also known as 56-58 Pietro Road, Heatherton.

Accommodation and carrying out of two businesses. The accommodation includes the residence of the owner of the land and the residence of a tenant.

Application under section 97P of the Planning and Environment Act 1987 - to review the refusal to grant a certificate of compliance.

The land is rectangular in shape, with an area of just over 4,000 square metres. It is developed with a number of buildings including a large building which is internally fitted out in a way which potentially enables it to be separated into five separate self-contained residences. There are also greenhouses and sheds on the site which are currently used for businesses operated by the owner of the land.

1. The applicants have owned the land since 1994. When they purchased it, there was an existing dwelling on the land (the Front Dwelling). In around 1995, they extended this dwelling toward the rear of the site. This extension was two storey and was internally arranged to provide a separate self-contained residence (the Main Dwelling), with a connecting door through to the Front Dwelling. The applicants have resided in the Main Dwelling since its construction. They say that they originally had a relative (Ms Voutsas' mother) living in the Front Dwelling, until around 1999.
2. The extension also now provides:
   • Rooms which can be internally closed off from the other parts of the building, to create a small self-contained one bedroom residence. The applicants say that these rooms have been occupied by a relative of the applicants from around 2010 until the present time.
   • A garage.
   • Rooms to the rear of the garage which can be internally closed off from the other parts of the building to create a self-contained residence. The applicants say that these rooms are not used as a self-contained residence but as a break/lunchroom for workers employed in the businesses operating from the site.
   • Rooms to the south of the workers' break rooms, which can be internally closed off from the other parts of the building to create a self-contained, two bedroom residence. These rooms are currently furnished as a residence. The applicants say that these rooms were lived in by Mr Voutsas' mother between 2000 - 2010, however, they have not been lived in since that time other than for a few months to accommodate a different relative.
3. Council has issued notices under the Building Act 1993, which have led to the applicants wishing to resolve the question of whether there are existing planning rights which enable them to use the Front Dwelling as a second dwelling, in addition to the Main Dwelling in which they reside.
4. The applicants applied to Council under section 97N of the Planning and Environment Act 1987 (P&E Act) for a certificate of compliance to confirm that they have such existing planning rights. However, Council was not satisfied that they did have those rights and refused to issue a certificate.
5. The applicants have now applied to the Tribunal for a review of Council's decision.
6. Having had regard to the relevant regulatory framework, the submissions and evidence of the parties and the material filed with the Tribunal, I have determined that a certificate of compliance should be issued on the basis that:
   • The applicants have existing use rights pursuant to clause 63.11 of the Kingston Planning Scheme which enable them to continue to use the land for a second dwelling.
   • These existing rights apply to the whole of the site.

1. Based on the material before me, the issues which are key to my determination of this proceeding are:
   • How has the site been used over the last 15 years?
   • Are there existing use rights pursuant to clause 63.11 of the Kingston Planning Scheme (the scheme) which allow the use of the land for a second dwelling?
   • If there are existing use rights, do those rights attach to all or part of the site?

HOW HAS THE SITE BEEN USED OVER THE LAST 15 YEARS?

1. Mr Voutsas gave sworn evidence at the hearing to the effect that over the 15 year period immediately prior to the date the applicants lodged their application for a certificate of compliance with Council:
   • He and his wife have resided in the Main Dwelling continuously for the last 15 years.
   • The Front Dwelling has been used as a separate residence, which has been occupied as follows over the last 15 years:
     • - Mr Liontas, between 1999 and October 2004;
     • - Mr Capuano and his parents, between November 2004 and July 2007;
     • - Ms Quick and Mr Hardy, between December 2007 and May 2010;
     • - Mr Tariq and others, between July 2010 and October 2011;
     • - Ms Khurram, between October 2011 and May 2012;
     • - Ms Quick and Mr Hardy again, between May 2012 and September 2015;
     • - Ms Vakouftsis, from September 2015 until the date of the hearing.
   • None of the above tenants were family or employees of the applicants. They heard about the tenancy by word of mouth, occupied the Front Dwelling quite separately and independently from Mr and Ms Voutsas and paid rent for their occupancy.
   • Tenants were given vacant possession of the Front Dwelling and upon occupancy moved in their own furniture and possessions. The Front Dwelling was the place of residence of each tenant during their tenancy.
   • While there were some periods between tenancies where the Front Dwelling was unoccupied, the Front Dwelling remained available and awaiting new tenants for separate occupancy during that time. Mr and Ms Voutsas did not occupy the Front Dwelling during these periods.
   • The Front Dwelling was, for the whole of the 15 year period, separately connected and billed for all utilities other than water. Water was paid for by the tenants via an arrangement with Mr and Ms Voutsas.
   • For some tenancies there was a formal written agreement in place. For others there was not.
   • The tenants of the Front Dwelling were able to use it and a portion of the site in proximity to it. They were not permitted to use the remainder of the site.
   • In addition to residing in the Main Dwelling, Mr and Ms Voutsas had general occupancy of the remainder of the site, other than that part occupied by the tenants of the Front Dwelling. Mr Voutsas has operated a number of businesses on the site over the 15 year period, has allowed Ms Voutsas' disabled brother to occupy a part of the building that can be closed off as a one bedroom residence and has allowed other relatives to stay in other parts of the building on the site.
2. Other evidence has also been put forward by the applicants. In my view, this evidence all corroborates the evidence of Mr Voutsas and includes:
   • Some utility bills from as far back as 1995 which indicate the separate metring of the Front Dwelling.
   • Handwritten receipts for payment of rent by Mr Liontas of various dates between 2002 and 2004. A hard copy of the receipt book was produced at the hearing, in response to my question about it, and contained other handwritten receipts for unrelated matters dating from a similar or earlier time period.
   • A selection of bank statements of Mr Voutsas showing payments by Mr Capuano between 2004 - 2007.
   • A witness statement, statutory declaration and oral evidence of Mr Capuano confirming his tenancy and the nature of it during 2004 and 2007. While he conceded that he may have checked with the applicants as to the exact dates of his tenancy, in response to my question, he confirmed that he was certain as to the dates and provided a fulsome explanation of why this was the case. He also confirmed that he was aware of the preceding tenancy of Mr Liontas and generally gave evidence about that tenancy which was consistent with the evidence of Mr Voutsas.
   • A witness statement of Ms Quick attaching a variety of documents relating to her two periods of tenancy. These documents included a statutory declaration confirming the tenancy dates, handwritten tax invoices for payment of rent, a tenancy agreement for the first tenancy, utility bills during the first tenancy, and, other correspondence sent to Ms Quick at the Front Dwelling during her second tenancy period.
   • A selection of bank statements of Mr Voutsas showing payments by Ms Quick during the period of her second tenancy.
   • A rental agreement with Mr Tariq commencing 1 July 2010 and two bank statements of Mr Voutsas during that period showing payments by Mr Tariq.
   • A bank statement showing a rental payment by Ms Khurram in 2011.
   • A witness statement of Ms Vakouftsis confirming her tenancy.
   • A bank statement of Mr Voutsas showing a rental payment by Ms Vakousftsis.
3. The inspection of the site by Council officers also confirmed occupancy of the Front Dwelling consistent with the evidence of the applicants about Ms Vakousftsis' tenancy.
4. In response to my questions, the applicants said that Ms Quick and Ms Vakousftsis were not available on the date of the hearing to give oral evidence about their written statements. However, the applicants were strongly in support of me scheduling a further hearing on this matter in the event that I considered it necessary for me to hear from Ms Quick and Ms Vakousftsis.
5. Council raised concerns about the evidence that I had been provided, including:
   • Inconsistency between the evidence and an assertion in a letter dated July 2011 from Mr Voutsas to Council in respect of compliance with Building Act requirements which said that they "regard it as all one house since all doors can be opened".
   • Periods of between 3 weeks and 2 years 5 months, where there were no records to corroborate the witness statements, statutory declarations and oral evidence.
   • The similarity between the substantive text of the statutory declarations. Council considered it likely that this part of the statutory declaration was not written by the person making the declaration.
6. I do not share Council's concerns about the evidence and am satisfied, on the balance of probabilities, that the site has been used continuously for the purpose of two separate places of residence or dwellings during the 15 year period immediately prior to the application, as:
   • Mr Voutsas gave sworn oral evidence to this effect about the entirety of the 15 year period. His evidence was tested by questions from Council and myself and I have no reason to doubt its veracity.
   • I have been provided with a substantial amount of other evidence all of which, in my view, corroborates the evidence of Mr Voutsas including records and statements/evidence of third parties.
   • The letter written in 2011 by Mr Voutsas was written in the context of structural building concerns raised by Council and I accept Mr Voutsas' explanation that it was a statement by a lay person. I consider it to be more of a reference to the structure of the building rather than its use and I do not consider it to undermine the evidence about use of the building before me.
   • While the statutory declaration text of Mr Capuano and Ms Quick may have been pre-prepared, I am satisfied from Mr Capuano's evidence as to the timing of his tenancy. While it is not unexpected that tenants may have some uncertainty as to the precise dates of a tenancy they occupied years earlier, I am satisfied that the weight of the evidence before me corroborates the tenancy dates in the statutory declarations of Mr Capuano and Ms Quick.
7. Council also submitted that I need to look at the broader use of the site and the potential for the building to provide five separate residences. When I asked Council what use it considers the site to have been used for over the past 15 years having regard to the whole use of the site, it initially said a 'boarding house', but then later revised this to 'group accommodation'.
8. I agree with Council that it is appropriate to look at the broader use of the site in determining the substantial purpose to which the land is put. I have done this and on the facts before me I am satisfied, on the balance of probabilities, that:
   • The use of the Front Dwelling is a separate use which is not integrated with any of the other uses to which the broader site has been put. The Front Dwelling has been used over the last 15 years as a separate, self-contained dwelling, occupied by tenants who were at arms length from the occupants of the Main Dwelling and not associated with any other use occurring on the site.
   • The remainder of the site has been used as the residence of the owner of the site over the past 15 years. This is a separate use of the land as another dwelling.
   • In addition to the use of the land for two separate dwellings, it has also been used to house members of the applicants extended family and to run family businesses. I was not provided with detailed evidence about the exact nature of these other uses of the site and make no findings in this regard. However, I was provided sufficient information about these other uses to be satisfied that they are not integrated in any way with the use of the Front Dwelling. To the extent that the remainder of the site has been used to accommodate persons other than the applicants and their immediate family, the only evidence before me is of it being used to accommodate members of the applicants' extended family. There is no evidence before me of a broader accommodation use being run across the whole of the site. Nor is there any evidence of any connection between the use of the Front Dwelling and the businesses on the site.
9. It follows from the above, that I find a real and substantial purpose of the use of the land over the last 15 years is for two separate dwellings. There may have been other separate purposes for which the land has also been used during this period, such as the various business activities of the applicants carried out on the site, however, none of those other uses have been integrated with the use of the Front Dwelling in a way which would affect the real purpose of its use.

ARE THERE EXISTING USE RIGHTS WHICH ALLOW FOR THE USE OF THE LAND FOR A SECOND DWELLING?

1. Clause 63.01 of the scheme sets out the ways in which existing use rights can arise.
2. One of these ways is by satisfying the requirements of clause 63.11 of the scheme.
3. Clause 63.11 provides that:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. In this case the relevant 15 year period is the period immediately prior to the application for a certificate of compliance being filed with Council - namely 5 February 2003 until 5 February 2018.
2. In characterising the use of the site for the purpose of assessing the extent of any existing use right, it is the purpose of the actual use described at a level of generality that is necessary and sufficient to broadly cover the activities which is to be used, not the classification of the use using land use definitions in the scheme.[2] Based on my above findings of fact, I am satisfied, on the balance of probabilities, that the real and substantial purpose of the actual use of the site during the relevant 15 year period was for two dwellings.
3. I am also satisfied that there has been no Court or Tribunal finding that the use was unlawful, or a written direction for the use to cease by reasons of its non-compliance with the scheme during this period. No such Court or Tribunal finding or written direction of Council was referred to by Council. However, the applicant properly drew to my attention one written communication from Council dated 8 December 2017 which said that "unless it can be further demonstrated that the current land use is lawful under Clause 63 of the Scheme, any unlawful accommodation use occurring on the land should cease."
4. I agree with the applicant that this is not an unambiguous direction to cease the use. It provided the applicant with the option of seeking to establish rights to continue the use. The application for a certificate of compliance and the current proceeding is a clear indication that this option has been taken up by the applicants.
5. It follows from the above that I find that the applicants have existing use rights to use the site for the purpose of two dwellings, pursuant to clause 63.11 of the scheme.

IF THERE ARE EXISTING USE RIGHTS, DO THOSE RIGHTS ATTACH TO ALL OR PART OF THE SITE?

1. At the conclusion of the hearing there was some discussion about whether any existing use rights apply to the whole or to part of the site.
2. Council said that any existing use right for a second dwelling was limited to the Front Dwelling and other parts of the site which have been used by the tenants of that Front Dwelling over the past 15 years.
3. The applicants said that the existing use rights should apply to the whole of the site, but they were unconcerned if I did find that they were limited to the Front Dwelling and other parts of the site used by its tenants.
4. Where a site is used as an integrated whole, existing use rights generally apply to the whole of the site, even if not every part of the site has been actively used for that purpose.[3] However, in some instances, land in one title and in single ownership may still be found on the facts, not to be an integrated whole.[4]
5. In this instance, I agree with the applicant that it is the whole of the site to which the existing use rights apply. This is because, on the facts before me, I am satisfied that it is the whole of the land which has been used for the purpose of two dwellings. Part of the site (including the Front Dwelling) has been used for one dwelling and the remainder of the site (including the Main Dwelling) has been associated with the other dwelling. While the part of the site used by the residents of the Main Dwelling appears to have also been used for other purposes, there is no evidence before me which suggests that these uses have been to the exclusion of the residents of the Main Dwelling and I therefore conclude that to the extent that there have also been other uses of the site, they have occurred concurrently with the use of the site as the residence of the applicants.
6. It follows from the above, that it is the whole site which has been used for two dwellings, and that existing use rights to use the land for two dwellings applies to the whole of the site.

1. For the above reasons, I conclude that the site enjoys existing use rights for the purpose of two dwellings and that a certificate of compliance should be issued to confirm this right.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] See eg clause 63.02; Wellington & Ors v Surf Coast SC (Red Dot) [2011] VCAT 2317; City of Nunawading v Harrington [1985] VicRp 64.

[3] See eg City of Nunawading v Harrington; Danieli v Campaspe SC & Ors [2009] VCAT 963; Stonnington City Council v Southern Property Corporation Pty Ltd [2006] VSC 435.

[4] See eg Simpkin v Mansfield Shire Council & Ors [2015] VCAT 701.