1. Under section 149A of the Planning and Environment Act 1987 and clause 63 of the Yarra Ranges Planning Scheme, I declare that the subject land has existing use rights for a contractor's depot.

1. Leave is granted to withdraw Application No. P144/2009 and the application is withdrawn.

Ms Marshall called Ms Savio as a lay witness in P2767/2009

1. Steve Wales operates an earthmoving business. He stores, maintains and dispatches machinery and equipment from the subject land, in addition to running a permanent office from which the administrative functions of the business are carried out. He wants to continue this use into the future, and claims that it is properly characterised as a contractor's yard or similar.
2. The subject land is located in the Green Wedge Zone 4 of the Yarra Ranges Planning Scheme.[1] The responsible authority advised Mr Wales that the land does not have existing use rights for the business operations and that he needed to apply for a planning permit for the current use.
3. A permit application recently lodged with and processed by the responsible authority for a contractor's yard was ultimately refused. Grounds of review generally hinged upon the alleged improper characterisation of the use and the suggestion that the use was in fact now prohibited, in addition to the use being inconsistent with planning policy for rural areas.
4. Mr Wales now seeks review of this decision. In addition, he has lodged an application for declaration[2] claiming that the subject land has existing use rights for the purpose of a contractor's yard. The rights are considered to have accrued pursuant to clause 63 of the Yarra Ranges Planning Scheme and section 6(3) of the Planning and Environment Act 1987, in that the use has existed for over 15 years and the council did not give any clear and unambiguous written direction to cease the use throughout that time.
5. This hearing was generally limited to considering the application for declaration. If that application was to be determined in the applicant's favour, there would be no need for a planning permit and the review application could be withdrawn.[3]
6. The responsible authority called lay evidence from Ms Savio, the owner of adjoining land[4] and a racehorse trainer, to explain the operation of the facility on the subject land near the time of purchase of that land until the present time.
7. Mr Wales gave evidence of the operations carried out on the land, including changes to their physical extent over time. With leave of the Tribunal, he subsequently submitted diary records and copies of invoices and the like to document typical (recent) activities on the subject land.
8. The responsible authority's key submissions contesting the claim of existing use rights were that:
   • the subject land was not used for a contractor's depot for a continuous period of 15 years as distinct from the adjoining parcel to the north. In particular time started to run only at the time the use contracted off the adjoining parcel of land in 2006 (now owned by Ms Savio); and
   • the responsible authority gave a clear and unambiguous direction by letter dated 22 March 2005 to cease the use, terminating any opportunity for the accrual of existing use rights under clause 63.11 of the planning scheme.

1. I find Millar Merrigan's description of the land in the context of the planning application to the responsible authority useful as a starting point:

[The subject site] contains a single dwelling and various outbuildings located centrally on the land. A large galvanised iron shed and gravel area are located towards the front of the property adjacent to the road. Two gravel driveways provide access. . .

The portion of the land at the front of the property where the shed _[5]_is located has been used for storage of vehicles and machinery that relate to the applicant's earthmoving business continually since 1979. There are a maximum of 15 vehicles (including 5 cars) parked on the site at any one time. The business currently has a staff of 10, all of whom work off site, except for the occasional repair work. Most of the projects are long term and the machinery remains on the job until completion.

. . . The majority of the subject land is used for grazing, keeping and riding of horses. The contractors yard only covers a very small portion of the land at the front of the site. . .

1. Certain facts emerge from the responsible authority's file for the subject land, including:
   • There is no record of when the use commenced on either 110 or 120 Lowes Road. 110 and 120 were originally in common ownership.
   • Building permits were issued in late 1985 and 1992 allowing the conversion of an "existing workshop" on the subject land to a factory.
   • At a site inspection in mid 1987, the relevant officer observed that the land was being used as a depot in the absence of a planning permit.
   • A complaint about noise emissions from the business on the subject land was received by council in mid 1988.
   • A letter was sent to Mr Wales in mid 1989 referring to other complaints about the operation of a transport depot on the subject land and advising of the opportunity to apply for a permit for this use.
   • Planning permit No. 775 was issued on 9 April 1990, allowing the use of the subject land at 110 Lowes Rd and 120 Lowes Rd as a Contractor's Yard. The permit was expressed to apply to Crown Allotments 24 and 25. Condition 19 of that permit provided that the permit would lapse three years after the date of issue unless it was extended by the responsible authority before this time.[6] It was common ground that this permit was not extended.
   • The 1989 plan of existing conditions accompanying the permit application showed the existing gravel area of No. 120 used for materials storage, with a substantially larger area on 110 for plant storage area and a centrally located office building. Ms Savio generally confirmed that this plan accurately depicted the use as at 2005.
   • Further complaints were received from neighbours about the operation of the use, including in mid 2004.
   • The 2004 survey plan submitted in connection with the permit application for the use (which ultimately lapsed) showed a generally similar area of both 110 and 120 being used for the business operations, although it noted that at that time No. 120 provided for a machinery parking area and No. 110 provided a substantial galvanised iron shed (the workshop).
   • The land was subdivided and 120 Lowes Road was sold to Ms Savio in October 2006. Ms Savio occupied part of the adjoining property at No. 120 since 2005 when she agisted horses on No. 110 and used the training track on No. 120.
2. In addition, numerous diary/bookings/staff and vehicle records were submitted by Mr Wales to illustrate the current operations on site, in addition to photographs from various time periods tendered by both parties.

1. Having heard and considered all relevant available evidence, I make the

following findings of fact which underpin my conclusions below:

• I have no reason to doubt and I accept the evidence given by Mr Wales that the business commenced in 1978-79 generally on the north west corner of 110 Lowes Road.
• Over time, the use expanded onto part of 120 Lowes Road.
• For the majority of the time since its inception until 2006, there was one singular use of the land that operated relatively seamlessly over both 110 and 120 Lowes Road.[7] This involved the storage of vehicles[8] and materials, dispatch and repair of vehicles and an office[9] from which the earthmoving contractor's business was carried out. More particularly, I also accept Mr Wales' evidence that most machinery storage and repair work occurred on No. 110 and that large equipment was housed regularly on No. 110 near the workshop on that lot.[10]
• From the date Ms Savio took exclusive possession of No. 120, the operations of the business contracted back onto 110 Lowes Road.

1. In general, I prefer the evidence of Mr Wales over Ms Savio on behalf of the responsible authority for the following reasons:

• He has the longest standing involvement with and direct memory of the extent and nature of the business operations on both properties,
  • He came across as giving truthful and sound evidence which was tested in cross examination and questions by the Tribunal,
  • I do not consider that any submissions or cross examination on behalf of the responsible authority detracted from or adequately contradicted the evidence given by Mr Wales about his use of the land,
  • His evidence was generally consistent with available documentation and correspondence, both on the council file and prepared for the hearing (noting that the council had no evidence of when the use commenced, or in fact of its operations pre 1987),
  • Ms Savio only had knowledge of the operations of the site since 2005, by which time exiting use rights would have already accrued for the subject land (for reasons I outline below), and

1. Ms Savio has a stated personal interest in the resolution of these proceedings in her favour that I consider has somewhat coloured her evidence.[11] This was evidenced in part by her focus on the difficulties she experiences with the alleged incompatibility between the use of her land and that of the depot, being matters peripheral to the determination of the declaration proceeding.

Did the subject land accrue existing use rights by 15 year continuous use? If so, when did these rights accrue?

1. My findings on this issue are based on an analysis of my findings of fact, compared against the requirements of clause 63 and assessed in light of relevant case law on determining existing use rights.
2. The period of 15 years within which a use operates and consequently accrues existing use rights can be a combination of use in the absence of a planning permit and the same use carried out under authority of a permit. This is allowed for by the wording of clause 63.11 and has been confirmed by the Supreme Court in Mornington Peninsula v Anderson & Ors.[12]

[9]. . . The use to be enquired into is the actual use rather than any legal or other use. This view is consistent with long established authorities that actual use determines the appropriate designation of a purpose for "existing use" or "non conforming use rights". What clause 63.11 requires is an enquiry into the actual use of the land over a period of time rather than an inquiry into how, why or the basis upon which that use might have been conducted.

1. The first part of clause 63.11 provides that it is sufficient proof in an application seeking to establish existing use rights that the use has been carried out continuously for 15 years prior to the date of the application. One key purpose of this provision is to alleviate the need to trawl back in time to identify evidence of when the use first started.
2. The relevant time period under consideration is between March 1995 and March 2010 notwithstanding that the use was operating in generally the same format for almost 20 years prior to this time.
3. The fact that the use may have purported to operate under authority of the 1990 planning permit even though it was in breach of conditions of that permit does not "stop time" and is therefore not to be discounted in agglomerating the 15 years. Likewise, the fact that a planning permit application for the use was lodged in 2005 but not progressed is neither here nor there.
4. Applying my findings of fact above, I consider that Mr Wales has discharged the onus of proof demonstrating that the subject land was used for the current purpose in the 15 years preceding this application.

Which land accrued the benefit of existing use rights?

1. I conclude that both 110 and 120 Lowes Road accrued existing use rights for the use claimed, but that these rights have now been lost from 120 Lowes Road due to a cessation of the use on that land for more than a two year period.
2. The responsible authority submitted that the contractor's depot use was predominantly carried out on No. 120 and only shifted onto No. 110 in 2006 when the former was sold. It submitted that the principal use occurred on No. 120 (including materials storage) while part of No. 110 was used for ancillary plant storage/ repairs area with a shed and accessway.
3. I do not consider that this submission was in any way substantiated by evidence of the relevant time period.
4. In answering the question of which land had the benefit of existing use rights at the 15 year 'mark' I note that in a letter of instruction to Millar Merrigan, Mr Wales advised:

SR & RS Wales Pty Ltd have been operating an earthmoving business from 110 Lowes Road, Yarra Junction from 1978 until the present date. From these premises and work shop, we undertake civil contracting, general earthworks as applied for tenders are accepted, we operate our low loader and tippers on a day to day basis. We also repair and maintain our equipment and park plant that is not working at the time.

Originally the business was on Lot 25, but as we grew, we expanded onto Lot 24 and combined both areas. In the late 1990's we began to down size, so relocated onto Lot 25.

1. All parties generally agreed that there was notable variability in the scale of the business over time and the associated number of machines on site at any one time.
2. Longstanding case authority has confirmed that existing use rights can either lawfully intensify or scale back over a landholding in question, so long as the same purpose is served and there is no discontinuance for two or more years on the land in question.[13]
3. It is natural that over the nearly 30 year period during which the use has been operating the mode of operation will evolve to suit the needs of the business, while still being for the same purpose.
4. Overall, I accept the evidence of Mr Wales that he has used the subject land for the same purpose from 1978 until the present time. The issue of a planning permit in 1990 regularising the existing use of the land is also relevant evidence. This permit approved the use of both lots and constitutes further evidence supporting Mr Wales' case.

Did the responsible authority issue a clear and unambiguous direction to Mr Wales to cease the use?

1. In terms of whether existing use rights have accrued, the fundamental question remaining for my determination is whether the responsible authority directed the use to cease in terms that would be effective to prevent the accrual of existing use rights under clause 63.11.
2. I hold that the letter relied on by the responsible authority fell short of being a "clear and unambiguous" direction to cease the use.
3. It is relevant to consider the particular wording of clause 63.11 which relates to the second ground relied on by the responsible authority, namely:

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:

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. The letter referred to by the responsible authority as constituting a written direction for the use to cease advised relevantly:

The use appears not to be in accordance with the permit P775 and the use must therefore be brought into conformity with the permit or must cease.

1. To my mind, the relevance of the requirement for a direction to be unambiguous in addition to clear means that it must also be unequivocal, in the sense of not being open to various interpretations.
2. I find that the fact that the letter clearly gave Mr Wales two options - to comply with the permit OR to cease the use - prevents it from being reasonably regarded as a clear and unambiguous direction to cease. While the direction may have been clear, it was not unambiguous in that it explicitly offered an alternative option for the continuation of the use.
3. It is relevant that the letter was written as one of many pieces of correspondence in dialogue between Mr Wales and various officers of the responsible authority about the operation of the use over a number of years dating back to 2001. The position taken by these officers commonly changed direction, particularly as to the validity of the 1990 permit, depending on the will and understanding of the time. Much of the correspondence was directed towards bringing the use into compliance with the conditions of the 1990 permit.
4. In my experience, the 2005 letter when read as a whole and against this background was more in the nature of correspondence intended to bring the use in line with the permit, rather than being written for the purpose of directing the use to cease. This reading is also consistent with the line of correspondence sent to Mr Wales by the responsible authority after that date where an 'audit' of permit compliance was undertaken.

What is the purpose of the use for which existing use rights have accrued?

1. Regardless of the current or former planning scheme definitions of contractor's yard or similar, I consider that the proper characterisation of the purpose of the use is as a contractor's depot.
2. While the difference between the use of a contractor's depot and that of a contractor's yard may be slight, the ordinary meaning of a depot would suggest to me more 'comings and goings' than a yard, which may potentially connote a greater extent of storage of vehicles/materials or longer periods of inactivity.
3. In Andsand Pty Ltd v Kingston CC [2008] VCAT 1804, I held:
   1. . . . There is no planning scheme definition for "depot" and I consider that the defined land use terms in the scheme are not sufficiently specific to reflect this aspect of the proposal.
   2. The Tribunal has in the past described the innominate land use of a "depot" as meaning land serving as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions occur, such as the repair and maintenance of vehicles and equipment.[14]
   3. Andsand physically carries on its earthmoving business across various construction and excavation sites, but proposes to rely on the subject land as a base for vehicles and equipment (generally in accordance with existing operating practices). The proposed land use has each of the same constituents as described above and I agree that these features, in combination, constitute a depot use of land. Specifically, I find that the primary purpose of the storage of vehicles/machinery on the subject land and their dispatch and repair is for the use of the land as an earthmoving contractors depot.
   4. While there is an element of the storage of goods, machinery and vehicles on the land that is necessarily involved with this land use, I consider that the land use term "store" is not appropriate, in that this activity is not the real and primary purpose of the land use when viewed as a whole.
4. For similar reasons, I consider that generally the same activities have been carried out on the subject land as referred to in paragraph 15 above consistently since the commencement of the use.
5. This characterisation was subsequently upheld by Senior Member Byard in Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506 where he observed:

[42]. . . The real gist of the distinction between contractors depot and store is the difference between parking or garaging vehicles and equipment at a depot and the use of the land simply for storage of goods for an indefinite period until sold or required elsewhere. Goods in storage are not continually being removed from and replaced in a store. Also they will not normally be returned to the store once their period of storage is over.

1. The other critical difference between the land use term store as opposed to a contractor's depot appears to me to be the scope of activities that are occurring on the subject land. While vehicles and equipment may well be stored when not in use as an integral part of a contractor's depot, there are also other activities that regularly occur on the land in connection with such a use. These include regular maintenance of vehicles and machinery and commonly an office or booking function involving the dispatch of vehicles and machinery.
2. Supported by the evidence presented in this case, this leads me to conclude that a contractor's depot is the appropriate characterisation of the purpose of the use of the land.

1. I appreciate that legitimate land use conflicts may arise from time to time in connection with the existing use of the subject land in its current setting. Notwithstanding, if the land can demonstrate existing use rights, then the continuation of this use will be lawful provided it complies with the provisions of clause 63 as a whole.
2. Based on available evidence and for the reasons above, I find that the subject land has existing use rights for the purpose of a contractor's depot.
3. It appears that many resources of the responsible authority have been devoted to attempting to bring the subject land into compliance with the planning scheme. While the responsible authority may have issued a direction to cease the use within the last 15 years, I do not consider that this direction was sufficient to prevent existing use rights from accruing having regard to the requirements of clause 63.11.
4. In the circumstances, there is no need for a planning permit to be granted in order for the current use of the land to continue lawfully.

1. [1] The land is also subject to the Significant Landscape Overlay Schedule 4, which is not directly relevant to this application. On 24 November 2003, the land was rezoned to Green Wedge Zone from Rural Zone (Schedule 4). At that time, a store became a prohibited use.

[2] under section 149A of the Planning and Environment Act 1987, this followed the responsible authority's refusal to issue a certificate of compliance under section 97N of the Planning and Environment Act 1987.

[3] The applicant requested that the application be withdrawn if a positive finding was made in the declaration application.

[6] This was intended to provide time for the depot to relocate to other land.

[7] Mr Wales described this in terms that there was no fencing between the two lots and that it was "all used as one property" until the sale.

[8] Mr Wales gave evidence that approximately 35 vehicles were involved some 8 years ago. This has been reduced in recent times.

[9] With two staff working there daily, in addition to a permanent foreman/site manager.

[10] It appears that much of the equipment on No. 120 referred to in older photographs was used in connection with a separate business operated by Mr Wales' former wife. Mr Wales conceded that truck parking occurred on No. 120 but that heavy machinery storage occurred on No. 110.

1. [11] Her use of the land involves particular sensitivity and she claims to be aggrieved by the operations of the contractor's yard, notwithstanding that she purchased the adjoining property with a clear understanding of the existing business operating beside it.

[12] [2009] VSC 310, a decision of His Honour Justice Pagone.

[13] See for example Norman v Gosford SC [1975] HCA 15; (1975) 132 CLR 83 and City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 at 645.

1. [14] Described in Beninati v Greater Dandenong CC [2002] VCAT 614 and subsequently applied in T.A. Lindsay Pty Ltd v Benalla Rural City Council [2003] VCAT 1621. The latter was a case where, like this application, the main activities of the business take place away from the subject land, which is used as a base or depot for the conduct of the applicant's business.