Williams v Macedon Ranges SC [2022] VCAT 621

1 The request of the Applicants pursuant to section 97Q of the Planning and Environment Act 1987 (P&E Act) to cancel or amend the certificate of compliance COC/2020/3 issued on 30 October 2020 is refused.

2 The application for a declaration pursuant to section 149B(1)(a) of the P&E Act that certificate of compliance COC/2020/3 issued on 30 October 2020 is invalid is refused.

Planning and Environment Act 1987 (Vic) s 97Q and s 149B(1)(a)_**

1 The joint Applicants, Jeremy Williams and Raymond Lacey, challenged the validity of certificate of compliance COC/2020/3 (the COC) issued by the Macedon Ranges Shire Council (the Council, the First Respondent) regarding the existing use of land known as the Kyneton Airfield, located at 1503 Kyneton Metcalfe Road, Kyneton (the Subject Land). The Applicants are both residents of Kyneton who have had a lengthy involvement with opposition to the use of the Subject Land as an airfield.

2 The challenge was made pursuant to section 97Q of the Planning and Environment Act 1987 (Vic) (the P&E Act). Alternatively, the Applicants sought a declaration pursuant to sectopm 149B(1)(a) of the P&E Act that the COC was invalid.

3 There was a dispute about the construction of the COC. In particular, whether it purported to extend to use and development and not use alone, or whether it was lawful to issue a certificate of compliance which did not deal with both use and development.

4 Underlying the question of the validity of the COC was the existence and extent of existing use rights which attached to the Subject Land.

5 In the early 1960s an airfield was established in Kyneton, initially to service the needs of crop dusting. In 1966, the Kyneton Aero Club (the KAC, the Second Respondent) was formed and based at the airfield for the purposes of recreational aviation activities. Over the years, the Kyneton Airfield has been used for various other community reasons, including for the occasional landing of emergency services aircraft.

6 The Subject Land comprises an 'L' shaped property totalling 23.7 ha of land across three parcels of which the original airfield property of 19.7 ha is the main area,[1] with two small lots abutting the northern extension of the main airfield parcel.[2] The land includes a grassed east-west runway which has existed since the early 1960s, and a north-south runway constructed in 1966 and subsequently upgraded with sealing in 2000 as well as improvements to the taxiways. A main paved runway aligns the north-south arm of the site, with a secondary grass surfaced runway aligning the southern side of the east-west arm of the site. Aircraft hangars[3] are located along the northern side of the east-west runway south of the main access driveway and west of the north-south runway. The KAC has its flying school classroom near the intersection of the two runways, next to its clubhouse.

7 Lot 1 has been owned by the Council since 25 October 1966. It was acquired as a municipal asset for the purpose of a landing ground (airfield) for the use and benefit of the rural shire.

8 Lot 8 was created as part of a rural residential subdivision on 25 September 1979. It was acquired by the Shire of Kyneton in 1981. A hangar shed was constructed on this lot several decades ago. All of the other structures are located on Lot 1. In approximately 1981 the taxiway was constructed which included Lot 8.

9 Lot 7 contains the northern section of the runway. Whilst the date of its acquisition by the Kyneton Shire Council has not been confirmed it is likely to have been, at the latest, the early 1980s. This land contains the last and northernmost section (about 150 m) of the north-south runway.

10 Whilst the Kyneton Airfield land is owned by the Council, the airfield is managed and operated by the KAC pursuant to a management agreement.[4] The KAC has formally managed the airfield on behalf of the Council since 1991 under a Service Agreement.[5]

11 Between 2007 and 2009, several hangars were developed on the Subject Land, having received building approval between 2003 and 2008 but not having sought or obtained planning permits.

12 On 14 July 2016 the Council acknowledged that the 2007-2009 hangars were likely to have required planning permits, but advised the Applicants it did not intend to pursue retrospective approval.

13 Sometime in 2020, the Council requested that the KAC seek retrospective approval for the hangar development and application PLN/2020/251was lodged. This planning application seeks retrospective approval of hangars built without a planning permit since 2003. The Applicants have lodged a separate proceeding with this Tribunal challenging this retrospective approval (VCAT proceeding P11318/2021).

14 An application was made on 29 September 2020 pursuant to section 97N of the P&E Act, on behalf of the KAC, requesting the Council issue a certificate of compliance in respect of the existing use of the subject land. The use description submitted for certification describes the use of the land "predominantly for recreational aviation by light fixed wing aircraft, including pilot training on a commercial basis, the occasional use by government agencies, the storage and maintenance of aircraft, Aero club activities, and other activities associated with the airfield use". Various documents were submitted in support of the application to demonstrate the ongoing use of the land over a period exceeding the previous 15 years including membership details for the KAC, bills and receipts and other correspondence addressed to the KAC, pilot training logbooks, and aircraft maintenance logbooks, amongst other documents.[6]

15 On 30 October 2020 the Council issued the COC pursuant to s 97N(1)(a) of the P&E Act, purporting to establish existing use rights in the Subject Land as an airfield in accordance with the submitted description set out above.

16 The application for the COC relied on clauses 63.01 and 63.11 of the Macedon Ranges Planning Scheme (MRPS) which provides a method of establishing existing use rights where the land in question has been used for a continuous purpose for at least 15 years.

17 The Council officer's report in respect of the application[7] noted that:

"Council aerial photography from 2004 being more than 15 years ago shows the full area of the airfield including the two parcels Lot 7 and Lot 8 be part of the expanded airfield at that time in addition to the original airfield parcel Lot 1."

18 The Council officer's report also noted "No compliance action had been commenced in relation to the use of the land by Council or the Tribunal." The report concluded that the submitted land use description and evidence satisfactorily demonstrated that existing use rights are established in accordance with clauses 63.01, 63.02 and 63.11, and therefore the use of the land is compliant with the provisions of the MRPS at the date of the certificate, and recommended a certificate of compliance be issued in accordance section 97N (1)(a) of the P&E Act.

19 On 8 December 2021 the Applicants lodged the application for review/declaration in respect of the validity of the COC.

20 On 21 February 2022, the Tribunal ordered that the present challenge to the validity of the COC and the related proceeding P11318/2021 be heard separately. The related proceeding will be heard on 8 September 2022.

21 Clarification of any existing use rights for the Subject Land frames will assist in framing the extent of the related development permit proceeding.

22 The Applicants sought to cancel the COC pursuant to section 97Q of the P&E Act on the basis that the COC is invalid and does not comply with the intent of the MRPS.

23 In order to succeed in an application to cancel or amend the certificate pursuant to s 97Q, the Applicants must demonstrate a material mistake or concealment of fact in the application for the certificate or a material mistake in the grant of the certificate.

24 Alternatively, the Applicants sought a declaration under s 149B of the P&E Act that the COC is invalid.

25 The Applicants argued that the COC is invalid because:

• 25.1 As a matter of construction:
  • 25.1.1 On a literal reading, the COC could be read as certifying the compliance of both the use and development of the land;
  • 25.1.2 It wrongly purported to certify that the land was compliant with all provisions of the MRPS;
• 25.2 The description of the use of the land was inaccurate and represented intensification of the original use of the land such that it transformed the use into a different use than that which was established initially on the Subject Land;
• 25.3 The existing use rights were invalidly claimed because there was non-compliance with the requirements of:
  • 25.3.1 Clause 63.11; and/or
  • 25.3.2 Clause 63.05.

26 The matters set out in the above paragraph 25 also form the basis of the section 97Q application.

27 The Applicants relied on very extensive written submissions and documents annexed to their submissions.[8]

28 Unfortunately, much of the content focussed on a perceived conflict of interest or alleged failures of good governance and disaffection with the engagement with Council and planning processes since 2005. As the Applicants were reminded throughout the hearing, the relevant issues which were before the Tribunal were those which went to the validity of the COC, its proper interpretation and any material which would assist in demonstrating that the Subject Land did not enjoy the existing use rights as claimed.

29 The Applicants conceded that the Subject Land had been used as an airfield for decades, and well before the erection of the disputed hangar buildings.[9] There was some agitation and frustration on the part of the Applicants in being required to limit their submissions to those about the use of the Subject Land as distinct from the development or construction of the hangar buildings.

30 Amongst the documents included in their material was a copy of a lengthy letter of legal advice from Mr Pridgeon, a very experienced planning lawyer from the legal firm, Russell Kennedy.[10] This advice was procured by the Council in response to the complaints by the Applicants as to the planning status of the Subject Land. The advice expressed the view that the Subject Land enjoys existing use rights, but that many of the buildings on the land were illegal as they were erected without the requisite planning permission. The advice identified that retrospective planning permission could be obtained. As the buildings required a planning permit, third party rights enabled the Applicants to object to the application (as they did) and entitled them to review the Council's decision to grant a permit.[11]

31 When questioned in more detail about the conceptual delineation between the use and development (both elements being opposed by the Applicants on planning and amenity grounds) it was clear that the Applicants were arguing that some use of the Subject Land as an airfield was accepted.

32 What was not accepted was the claimed intensification of the use since the use commenced in the 1960s and which was alleged had been facilitated in part by the construction of the hangars. The crux of the Applicants' complaint was that there had been no proper planning process and the Council and the KAC were complicit in breaching the planning legislation, and this had been done in a manner which was illegal, lacked transparency and lacked good governance and oversight. The Tribunal expressed the view during that hearing that findings of such type were not matters which are within the Tribunal's jurisdiction and the Tribunal's jurisdiction was limited in this proceeding to the relevant provisions of the P&E Act and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act). These allegations were irrelevant and not helpful to the Tribunal's consideration of the proceedings before it.

33 The Council submitted that the applications be dismissed on the basis that the use of the Subject Land as an airfield had clearly been made out and that it had been used for that purpose for well over 15 years and thus was complaint with the MRPS as to use. The Council submitted that the Applicants' key complaint related to the buildings rather than the use of the land.

34 Council submitted that no evidence was advanced by the Applicants to suggest the use commenced unlawfully or that it has not operated continuously for the past 15 years. Furthermore, it was argued that the Applicants had not sought to establish that the use was unlawful when the new format planning scheme commenced on 8 June 2000. It was argued that, unless the Tribunal was persuaded that both the use was unlawful as at 8 June 2000 and that the 15 year rule is not made out, a grant of declaratory relief (or a finding pursuant to section 97Q) was not justified.

35 The Council submitted that if the Tribunal had a concern in respect of the COC and contemplated setting aside the COC or amending it, the Tribunal alternatively could consider a declaration pursuant to section 124 of the VCAT Act and declare that the Subject Land enjoys existing use rights pursuant to Clause 63 of the MRPS.

36 The KAC submitted that the use of the land as an airfield commenced in the 1960s with the KAC commencing operations on the subject land on 25 October 1966.

37 The KAC argued that the Kyneton Airfield was recognised and legitimised in the previous Shire of Kyneton Planning Scheme[12] which, prior to the new format Planning Scheme which commenced 8 June 2000, shows the Kyneton airfield as Public Use - Airfield (PU - A F) Zone which applied to the land since the planning scheme's inception in 1989. At the time of amalgamation of councils in the mid-1990s the Kyneton Planning Scheme became Chapter 5 of the old format Macedon Ranges Planning Scheme. The KAC argued that the use of the Subject Land was lawful prior to the commencement of the new format planning scheme in June 2000, in reliance on Clause 63.01 (Extent of Existing Use Rights) which was evident from the previous Public Use - Airfield Provisions.

38 It was submitted that, as the airfield on Lot 1 did not require a planning permit for use under either the old format nor the new format planning schemes and the use was continuous, it has continued to be lawful under the MRPS.

39 The KAC relied upon a more nuanced argument in respect of existing use rights regarding the balance of the Kyneton Airfield land being Lots 7 and 8. These rurally zoned lots (now Farming Zone) did not require a planning permit for the construction of a rural shed, such as the early hangar, or earthworks regarding the runway. It was argued that notwithstanding the relevant planning scheme provisions of the time are not known, there is no need to go back that far as the COC applies to all three lots and the two lots in the Farming Zone have remained in rural zones but have formed part of the airfield for substantially more than the required 15 years.[13]

40 The KAC argued that the aircraft hangars which were built on Lot 1 in the 2000s, that are the subject of the separate VCAT proceedings, are not relevant to the ongoing use of the Subject Land as an airfield, and that the Applicants in their submissions and material failed to distinguish between the question of legality of the hangar development and the historic lawful use of the Subject Land as an airfield and the establishment of existing use rights for that use.

41 Written submissions were filed an relied upon, together with documentary evidence exhibited to the affidavits of Sharon Macaulay and Warren Canning on behalf of the KAC[14].The documentary evidence provided on behalf of the KAC is extensive and provides evidence of the activities carried out on the Subject Land from 1966 to the present time.

42 The COC in dispute was issued by the Council on 30 October 2020. It is in the form required by the regulations.[15]

43 An application for a certificate of compliance in accordance with section 97N of the P&E Act in respect of the use of the Subject Land was made on behalf of the KAC on 29 September 2020. Various documents were submitted in support of the application to demonstrate the ongoing use of the land for a period exceeding the previous 15 years, including membership details for the Kyneton Aero Club, bills and receipts and other correspondence to the club, pilot training log books, aircraft maintenance log books, and otherwise.

44 A planning report on the application dated 29 October 2020 sets out the consideration of the application. It referred to clause 63.01 (Extent of Existing Use Rights) and identified that 'an existing use right is established in relation to use of land under this scheme if any of the following apply' of which the fourth dot point is relevant, being 'Proof of continuous use for 15 years established under Clause 63.11.' The report noted that clause 63.02 (Characterisation of Use) is relevant in requiring that 'If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date' rather than the uses listed within the zone provisions or the use definitions within clause 73.03 (Land Use Terms).

45 The report referred to clause 63.11 (Proof of Continuous Use) and to other information, including Council records and title documents, to demonstrate that the Council as the owner of the Subject Land held title to all three parcels which are the subject of the application and comprise the entirety of the Kyneton airfield property for longer than 15 years. Council aerial photography from 2004 (being more than 15 years ago) showed the full area of the airfield, including the two parcels Lot 7 and Lot 8, being the expanded airfield, in addition to the original airfield parcel Lot 1.[16]

46 It was recorded in the planning report that no compliance action has been commenced in relation to the land by the Council or the Tribunal.

47 The planning report concluded that the submitted land use description and evidence satisfactorily demonstrated that the use rights were established in accordance with clauses 63.01, 63.02 and 63.11 and therefore the use of the land is compliant with the MRPS at the date of the certificate.

48 The report recommended that a certificate of compliance be issued as follows:

Planning and Environment Regulations 2015

_____________________________________________________________________________

CERTIFICATE OF COMPLIANCE - EXISTING USE OR DEVELOPMENT

Responsible Authority: Macedon Ranges Shire Council

PT LOT 1 TP 439562U P/Lauriston, LOT 7 TP 952780V P/Lauriston, LOT 8 LP 128098G P/Lauriston, Airstrip & Land, 1503 Kyneton Metcalf Road KYNETON VIC 3444

The use of the subject land for "An airfield predominantly for recreational aviation by light fixed wing aircraft, including pilot training on a commercial basis, the occasional use by government agencies, the storage and maintenance of aircraft, aero club activities, and other activities associated with the airfield use" complies with the requirements of the Macedon Ranges Planning Scheme.

This certificate is issued in accordance with section 97N(1)(a) of the Planning and Environment Act 1987. The use or development existing on the land and referred to in this certificate complies with the requirements of the planning scheme at the date of this certificate.

______________________________________________________________

The responsible authority has issued the certificate with respect to the use and development on the subject land and referred to in the certificate.

A certificate is a statement about the effect of the planning scheme on the use or development on the land on the day was issued.

49 The COC was issued in the above form on 30 October 2020, pursuant to section 97N(1)(a) of the P&E Act.

_(1) Any person may apply to the responsible authority for - _

(a) a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate; or

(b) a certificate stating that a proposed use or development (or part of a use or development) of land would comply with the requirements of the planning scheme at the date of the certificate.

(2) The application must be accompanied by the prescribed fee.

51 The operative paragraph of the COC, in respect of the use of the Subject Land as an airfield, can be seen at the centre of the extract above, following the heading 'THIS CERTIFICATE REFERS TO'.

52 The Applicants seek to have the COC set aside. Whilst not expressly stated in the application, the Tribunal has treated the application as if it was one made pursuant to section 97Q of the P&E Act as this is the relevant provision under Part 4A.

(1) Any person may request the Tribunal to cancel or amend a certificate of compliance issued under this Part if the person believes that the person has been adversely affected by a material mis‑statement or concealment of fact in relation to the application for the certificate or a material mistake in relation to the issue of the certificate.

_(2) The Tribunal must give the following persons the opportunity to be heard at the hearing of any request - _

(a) the responsible authority;

(b) the owner and occupier of the land concerned;

(c) the person who made the request;

(d) the Minister.

_(3) After hearing a request, the Tribunal may direct the responsible authority to cancel or amend the certificate and to take any action required in relation to the certificate, if it is satisfied that - _

(a) there has been a material mis-statement or concealment of fact in relation to the application for the certificate or a material mistake in relation to the issue of the certificate; and

(b) the person who made the request was substantially disadvantaged by the mis‑statement, concealment or mistake; and

(c) it would be just and fair in the circumstances to do so.

(4) The responsible authority must comply with the directions of the Tribunal.

54 The operation of this provision picks up the provisions which generally apply to applications for cancellation or amendment of permits pursuant to section 87 of the P&E Act.

55 To be successful in this application, the Applicants must satisfy the requirements in section 97Q(3). They must have identified a material misstatement or concealment of fact in relation to the application for certificate, or a material mistake in relation to the issue of the certificate, and establish that they have been adversely impacted by it.

56 I am not satisfied that there is any evidence presented on behalf of the Applicants to demonstrate that there is any material misstatement or concealment of fact in relation to the application for the certificate.

57 In respect of whether a material mistake exists in relation to the issuing of the certificate, some questions of statutory interpretation and construction of the COC arise.

Construction of the Certificate of Compliance

58 The Applicant raised two key issues concerning the construction of the COC (as summarised above at [25]); first that the COC purports to certify compliance of both the use and development of the land, and secondly it wrongly purports to certify compliance with all provisions of the MRPS.

59 With respect to the first of these issues, the question becomes this - can the COC be read as being issued in respect of use only, and is it valid to do so?

60 Section 97N entitles a person to apply to the responsible authority for a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate.

61 It is clear from the application made to the Council that the KAC was seeking confirmation of claimed existing use rights in the Subject Land, for airfield activities and associated activities which have been carried on over several decades.

62 Relevantly in this case, the Council as the responsible authority must consider the application and must issue the applicant a certificate of compliance in accordance with section 97N(1)(a) or refuse to issue the certificate on the grounds set out in section 97O(4).[17]

63 The key issue in debate between the parties was the correct interpretation of section 97O(4). This subsection provides:

The responsible authority must refuse to issue a certificate applied for under section 97N(1)(a) if the use or development or any part of the use or development would require a permit or is prohibited under the planning scheme.

64 The Applicants argued that the Council improperly issued the COC because it was clear that some of the development existing on the Subject Land required a permit under the planning scheme and no such permit had been granted. Consequently, the Council was in breach of this section because the words "if the use or development or any part of the use or development would require a permit" could not be satisfied in the circumstances.

65 This reasoning was based on an interpretation that a certificate of compliance could not be issued in respect of use only.

66 The Respondents argued that in the proper interpretation of sections 97N and 97O there was a difference and distinction to be drawn between use and development. The application for the COC related to use only. The COC was issued properly and clearly reads as referring to use only. Consequently, neither section 97N nor section 97O was breached in respect of compliance with the planning scheme and the requirements for use and in respect of section 97O(4) in this context. There was no bar to the Council issuing the COC in respect of use only, nor in issuing certificates or permits in relation to its own land.

67 I agree with this analysis. It is clear that there may be different needs arising for a certificate in respect of an existing use or a development. In this case, the application made related to the use of the land not its development status. The operative provision of the COC is clear and makes no reference to development at all, but is confined to use only.

68 In my view, section 97O(4) allows for a certificate of compliance in respect of the planning status, in circumstances accommodating variously an application made in respect of use or development or use and development. If a certificate of compliance is applied for regarding use only, the responsible authority must refuse to issue the certificate if the use requires a permit or is prohibited. If a certificate of compliance is applied for regarding development only, the responsible authority must refuse to issue the certificate if the development requires a permit or is prohibited. Equally, if an application is made in respect of use and development then the certificate must certify in respect of both.

69 Throughout both sections 97N and 97O, Parliament has consistently used the phrase "use or development". The key word here is "or". A plain meaning approach to statutory interpretation lends to the view that use and development are alternative options for the subject matter of a certificate of compliance. Therefore, in this case, it was valid for the COC to be issued in respect of use only.

70 To reiterate, the operative paragraphs of the COC state:

The use of the subject land for "An airfield predominantly for recreational aviation by light fixed wing aircraft, including pilot training on a commercial basis, the occasional use by government agencies, the storage and maintenance of aircraft, aero club activities, and other activities associated with the airfield use" complies with the requirements of the Macedon Ranges Planning Scheme.

This certificate is issued in accordance with section 97N(1)(a) of the Planning and Environment Act 1987. The use or development existing on the land and referred to in this certificate complies with the requirements of the planning scheme at the date of this certificate.

71 The first of these paragraphs very clearly specifies use only. This first paragraph is the key descriptor, and has obviously been inserted for this particular COC. The second paragraph refers to 'use or development' (again, alternative options), and regardless is a generic statement copied from the standard Form 14 located in Schedule 1 of the Planning and Environment Regulations 2015 (Vic) (the Regulations). The latter in no way undermines the former.

72 There is, however, one inconsistency that needs to be addressed in relation to Form 14 as provided in Schedule 1 of the Regulations. The sample form therein contains a square bracket section where it is intended that the user of the form insert the key descriptor of the land. It says:

[ State the use and development carried out and existing on the land. This may include reference to any plans or documents forming part of the application and endorsed by the responsible authority. ]

73 I note that this says 'and' rather than 'or'. I believe this to be an oversight on the part of the drafters, given the consistent use throughout the rest of Form 14, and the P&E Act generally, of the phrase "use or development" (and the other matters I have discussed in the preceding paragraphs). Ultimately, the Regulations are a quasi-legislative instrument, and the primary legislative instrument is the P&E Act. In such circumstances, inconsistencies must be resolved by reference to the primary legislation. The interpretation proffered by the P&E Act overrides any inference that may be drawn from the bracketed section of Form 14.

74 The COC was issued in respect of use only, and it was valid in the context of the P&E Act to do so.

Compliance with all provisions of the Macedon Ranges Planning Scheme

75 On a related point of construction, the Applicants argued that the COC purported to comply with all of the provisions of the MPRS, when in fact it did not.

76 This issue is easily extinguished once it has been established that the COC was issued in relation to use only. Some provisions of the MPRS deal with the use of land, and some provisions deal with the development of land. Where a certificate of compliance relates to use only, the provisions regarding development will not be relevant to that certificate (and vice versa). It logically follows that there is no mandate that a certificate comply with all provisions of the MPRS, only the relevant ones.

77 The Applicants relied on issues that they have raised for many years in respect of the operation of the airfield. In fact many hundreds of pages of submissions and annexures went to this issue.

78 There was a difference of opinion between the Respondents and the Applicants on the effect of the documentation and circumstances relied upon by the Applicants.

79 Ultimately, however, it was conceded by the Applicants that the use of the Subject Land as an airfield had been occurring for a period well in excess of 15 years. The Applicants argued that it was the extent or intensification of the use of the Subject Land for an airfield and allied activities since the mid-2000s (including the construction of the buildings on the site) which had in fact transformed the use into a new or different use, one not protected by existing use rights.

80 Whether the use of the Subject Land had intensified to the extent that it had transformed into an alternative land use is a question of fact. It is a question of the characterisation of the use at the relevant time. This question needs to be considered in the context of Clause 63 of the MRPS.

81 In the context of all of the material before the Tribunal and consideration of Clause 63, I reject the conclusion that the use of the land can properly be characterised as a different purpose to that which is protected by the existing use rights claimed.

82 What is key to the argument is whether the purpose of the use has changed to something different (and not authorised) by the planning scheme. The purpose of the use has been as an airfield with the activities described in the certificate of compliance having occurred on the land since at least 1966. The construction of the hangars, which are the subject of a further Tribunal proceeding, do not transform the use into something else. The use of hangars built on airfield land are ancillary aspects of the airfield use.[18] As such they would be regarded as part of its use and not as a separate land use, nor would I considered them as creating a new land use. An ancillary use is not considered a separate land use in planning law.

83 Clause 63 of the MRPS covers various issues related to existing use, and some of these subclauses are explored in more detail below (at [109]-[139]). Clauses 63.01 and 63.11 establish the 15 year rule I have been referring to.

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

• The use was lawfully carried out immediately before the approval date.
• A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.
• The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

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.

86 The relevance of intensification of use to the 15 year rule is as follows - if within the relevant 15 year period the use has intensified to such a degree that it can be considered a different use, there will not be a continuous use for 15 years.

87 The Applicant's argument in this regard is essentially that, by the development of the hangars and the increased activity at the Subject Land, its use had intensified from 'airfield' to 'airport'. Whilst the point is ultimately moot given the Tribunals findings and analysis of the purpose of the use of the land over the relevant period, it is informative to consider the distinction between these two uses.

88 The KAC, in their written submissions, point out that:

The official CASA (Civil Aviation Safety Authority [sic]) term for all aircraft operational areas is Aerodrome, however, many smaller facilities still use the term Airfield; all Airports are Aerodromes, but not all Aerodromes are Airports.[19]

89 Clause 18.02-7S of the MPRS discusses the objectives and policies surrounding the management of Victoria's airports and airfields. This clause distinguishes these as separate concepts, the operative word being 'and'.

90 Clause 18.01-2S discusses the objectives and policies around Victoria's transport system generally. It describes the term "Principal Transport Gateways" as follows:

Existing and future ports, airports and interstate terminals that serve as key locations for moving passengers and freight into, out of and around Victoria.

91 Similarly, in the table of land use terms at clause 73.03, 'airport' is defined as a "transport terminal" being "land used to assemble and distribute goods or passengers".

92 The Subject Land is not being used a key transport or distribution facility. It does not provide the type of travel services envisioned by the concepts of a "Principal Transport Gateway" or a "transport terminal", such as those provided by commercial airlines to travel interstate. Whilst some pilot training occurs on a commercial basis, commercial travel does not. The airfield is small-scale and is generally used for recreational private aviation, local charters, and community needs.

93 In any event, it is necessary to consider the characterisation of a use by reference to the purpose of its actual use at the relevant date rather than by the use as listed within the zone provisions or the use definitions within Clause 73.03 of the planning scheme.[20]

94 Any increase in the frequency or intensity of these activities, as perceived by the Applicants, does not change the nature or purpose of the activities and therefore does not change the use of the Subject Land. As Deputy President Dwyer stated in Wellington v Surf Coast Shire Council (Wellington):[21]

Moreover, cases such as Norman v Gosford Shire Council make it clear that a use may be intensified over time, even with a change in activities within the use, without changing the purpose of 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. There may even be greater amenity impacts created through the intensification of the use, without the purpose of the use changing.[22]

95 Here, the purpose has not changed to a commercial transport (or other) use.

96 The status of the Subject Land as an 'airfield' is further demonstrated by the level of involvement of the Council in the airfield activities. As the Council has pointed out:

Council has historically provided an extraordinary level of support for the delivery of recreational flying infrastructure on the Subject Land. This should not be surprising for a smaller regional recreational airfield, as distinct from a larger commercial airport like Essendon or Moorabbin Airport.[23]

97 Whilst the legality of the hangars in terms of development permit requirements is a question for the related proceeding in September, for the purposes of this proceeding, the existence of the hangars do not represent an intensification of use such that a new use is created.

98 The structure of planning schemes in Victoria draw a distinction between use and development. Section 1 uses are as of right, whereas section 2 uses require a permit and section 3 uses are prohibited.

99 The current planning provisions affecting the Subject Land in respect of Lot 1 is Public Use Zone (Local Government)[24] and in respect of Lots 7 and 8 Farming Zone.[25] The use of the land is a nonconforming use in respect of both zones which affect the land.

100 Victorian planning law protects existing use rights. As was stated by Deputy President Gibson in Seers v Macedon Ranges Shire Council (Seers):[26]

In my view, the starting point for any enquiry about whether existing use rights can be established should always be to enquire why it is necessary to establish existing use rights. Ordinarily this will only become relevant because the use of land does not comply in some way with the current planning scheme. If the use of land fully complies with the planning scheme - for example, it is a section 1 use and all conditions are complied with, or a permit has been issued under the provisions of the current planning scheme - the issue of existing use rights will not be relevant. The lawfulness of the use of the land will be able to be established either by reference to the provisions of the planning scheme or to a permit.

The need to establish existing use rights will most commonly arise when there has been a change to the planning scheme since the use commenced that would mean the use would not now be permitted or would now require a permit under the planning scheme (as amended) and no such permit has been granted.

Fundamentally, the concept of existing use rights is one of fairness. It would be unfair if a use which was operating lawfully one day either under a planning scheme or permit could be rendered unlawful the next day because of an amendment to a planning scheme, which made the use prohibited or subject to conditions.

101 The policy underpinning planning schemes and the P&E Act not only protect existing use rights, but have provisions which are directed towards bringing nonconforming uses into conformity with the planning scheme, in this case through the operation and interpretation of clause 63 of the MRPS.[27]

102 This protective approach is evident in the Second Reading Speech of the Planning and Environment (Amendment) Act 1993 (Vic) which introduced certificates of compliance as a method of confirming compliance with planning schemes, by inserting s 97N into the P&E Act. On this point, Parliament stated:

A certificate about existing use or development will add certainty to prospective owners and occupiers of land in cases in which there may be doubts about compliance.[28]

103 Existing use rights protect uses. They do not protect development. Consequently, the purpose of the use of the land and how it is characterised is what is protected. Sometimes this will include buildings and works on land at the relevant date, where those buildings are ancillary to the use (as discussed above at [82]).[29]

104 Deputy President Gibson's approach in Seers represents well established principles of statutory interpretation - such as reference to the plain meaning of words, the broader circumstances and to policy purposes - and principles of fairness. These principles lend to a literal and reasonable interpretation of existing use rights and provisions which establish them, such as clauses 63.01 and 63.11 of the MRPS (extracted above at paras [84] and [85]).

105 Further demonstrating the protective nature of Victorian planning schemes regarding existing use rights, Deputy President Dwyer in Wellington stated that clause 63.11 (which is standard in Victorian planning schemes) exists "as a 'shield' to defend existing use rights".[30]

106 As noted above, the parties agree that the Subject Land has been used for the continuous purpose of an airfield for more than 15 years. It is appropriate at this point to make a comment on the alternative method of establishing existing use rights under the first bullet point of clause 63.01 ("The use was lawfully carried out immediately before the approval date"). The recent case of Peninsula Aero Club v Mornington Peninsula Shire Council involved the question of existing use rights at Tyabb Airfield (the Tyabb case).[31] Senior Member Rickards, citing Seers, stated that_:_

...it is preferable to rely upon a use lawfully existing prior to the approval date of the current planning scheme however if there is a need then clause 63.11 can be relied upon.[32]

107 In the Tyabb case, there was a need to rely on the 15 year rule and the Tribunal ultimately established existing use rights under that rule.[33] In this case, in its consideration of the application Council relied on the 15 year rule in making its decision to issue the COC, and it is that decision which is subject to review in this proceeding. Therefore, the 15 year rule is the appropriate approach for the present purposes.

108 The Applicants contended that existing use rights have been invalidly claimed by the Council, because clause 63.11 was not complied with. In this sense, clause 63.11 provides exceptions which, if met, nullify the existing use rights established by the 15 year rule.

109 The Affidavit of Warren Canning, filed on behalf of the KAC sets out and appends the history of the various Leases and Service Agreements between the Council (as owner of the Subject Land) and the KAC (as the operator of the airfield which forms the basis of the use of the Subject Land), establishing a record that extends well beyond 15 years prior to the issuing of the COC in 2020.[34]

110 The Constitution of the 'Kyneton Airfield Committee of Management' forms the bridge between the Council and the KAC in terms of the management of the Subject Land and its use as an airfield as at 1990, including the management of buildings.[35] The Service Agreement in 2006 ensured that when the Shire of Kyneton was amalgamated into the Macedon Ranges Shire,[36] the authority of the KAC to operate the airfield on the Subject Land continued. The Service Agreement of 2015 renewed the one from 2006 and allowed for ongoing renewal on a yearly basis.[37] At no point during this time, or up until 30 October 2020 when the COC was issued, did the Council issue a written direction for the use to cease.

111 Similarly, in confirmation that neither of the clause 63.11 exceptions apply, at no point prior to 30 October 2020 did any concerned party apply to a court or Tribunal for any ruling that the use of the Subject Land was unlawful. No such ruling exists.

112 As neither exception in clause 63.11 is invoked upon the facts, the Council has complied with that clause in its finding and certification of existing use rights.

113 The Applicants raised a similar argument with respect to clause 63.05 of the MRPS, and whether that clause was complied with.

114 The Applicants have argued that the Council has a conflict of interest and/or has acted unlawfully in its role as the land owner and the responsible authority under the P&E Act. They argued that the Council has not acted appropriately and has failed in its duty to enforce the planning scheme.

115 In Council's submissions an explanation was given that there was a defensible legal view taken of whether a permit was required for the development of hangars on the airfield, based on an interpretation of whether the buildings and works permit trigger in the Public Use Zone only applied to section 2 uses. Subsequently, on the advice of Mr Pridgeon (which advice was provided to the Applicants and has previously been referred to), a different view has been taken which has led to a retrospective permit application being made for the buildings erected after 2000.

116 As to whether there is any conflict or illegality in the Council in approving the use or development of the Subject Land, section 96 of the P&E Act is of some relevance.

(1) A responsible authority must obtain a permit from the Minister before carrying out any use or development for which a permit is required under the planning scheme for which it is the responsible authority unless the planning scheme exempts the land, use or development from this subsection.

(2) A person other than the responsible authority must obtain the consent of the responsible authority and a permit from the Minister before carrying out any use or development on any land managed (whether as committee of management or otherwise) occupied or owned by the responsible authority for which a permit is required under the planning scheme for which it is the responsible authority unless the planning scheme exempts the land, use or development from this subsection.

...

118 In the context of this proceeding only use needs to be considered. As the Applicants argued, the MRPS does not exempt the use of the land from a permit insofar as Clause 62.01[38] does not apply to provide that exemption. However, this is not to the point as the P&E Act and the planning scheme provides for the protection of existing use rights and existing use rights run with the land and not the identity of the land-owner or occupier.

119 The Applicants argued that the first dot point of Clause 63.11 was relevant because the letter of advice provided by Mr Pridgeon amounted to a decision of a tribunal holding that the use was unlawful.

120 Somewhat uniquely, it was argued that as Mr Pridgeon's letter of advice fell within the definition of a decision made by a 'tribunal' under the provisions of the Administrative Law Act 1978 Vic (the ALA).

121 Section 2 of the ALA provides the following definitions which were relied upon by the Applicants:

Definitions

_In this Act unless the context or subject-matter otherwise requires - _

"decision" means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

"person affected" in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;

_"tribunal" means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include - _

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or

(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.

122 To form the view that the legal opinion of Mr Pridgeon falls within the definition of 'tribunal' or that his opinion might be a 'decision' as defined in the ALA is as inventive as it is fanciful.

123 Mr Pridgeon's letter of advice was nothing more than that; a letter of advice to the Council which was then shared with the Applicants. It does not operate in law to determine a question affecting the rights of a person as defined in the ALA. That Mr Pridgeon might be considered to be a 'tribunal' is misconceived. Whilst he is a lawyer there is no requirement for him to act in a judicial manner to the extent of observing one or more of the rules of natural justice. It would be a very long bow to draw indeed to form a conclusion that the letter of advice and the role that Mr Pridgeon played in providing it was anything more than the role a respected lawyer might undertake when briefed by his client to provide legal advice.

124 This part of the Applicant's argument concerns whether the existence of the buildings on the Subject Land (and the current lack of permits for those buildings) is inconsistent with existing use rights, thereby invalidating them.

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

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
• 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.

126 The Applicants argue that expanding the use of the airfield and/or building new hangars will damage the amenity of the area.

127 It has been well established by this Tribunal that non-compliance with clause 63.05 does not extinguish or invalidate existing use rights.[39] This means that the lawfulness of any construction or development on the land is a separate question from the lawfulness of any existing use rights. Non-compliance with the planning scheme in respect of buildings and works is an enforcement issue, not one which extinguishes existing use rights. Extinguishment of existing use rights occurs on the fulfillment of one of the arms of Clause 63.06. Breach of Clause 63.05 does not go to the question of the establishment of existing use rights.

128 Deputy President Dwyer made the point succinctly in Wellington, stating "this clause only applies once an existing use right is established, and does not set out preconditions that must be satisfied in order to first establish the right".[40] It is plain from the first line of clause 63.05, and the words_"for which an existing use right is established_", that this is the correct interpretation.

129 The application of clause 63.06 of the relevant planning scheme is the only way to extinguish existing use rights in Victoria. Clause 63.06 of the MRPS provides:

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

130 There is no evidence of either of the dot point considerations of clause 63.05 being made out.

131 This construction is echoed in the legal advice of Ian Pridgeon provided to the Applicant Mr Williams on 9 April 2020.[41] Mr Pridgeon's legal advice distinguished between the requirements as to use as opposed to development. I concur with that advice, and believe it sets outs very plainly the legal position in terms of use of land. It draws a distinction between use being something that can be established as of right, and development situations where a permit may be required.

One practical effect of the establishment of an existing use for the Airfield is that no planning permission is required for the Airfield use to continue.

Even though the use of the land for the purpose of the Airfield may enjoy existing use rights, the existence of an existing use right does not on its own exempt development that would ordinarily require planning permission from the need for a planning permit.[42]

133 The document containing the advice of Mr Pridgeon is one of many documents I have carefully considered in this case, as well as the oral presentations of the parties. The propositions put by Mr Pridgeon have been known by the Applicants for a considerable time, and nothing that they have put before me in this proceeding serves to convince me of the incorrectness of the view expressed in that advice, with which I concur.

134 In respect of Clause 63, I find that whilst it is arguable that the use of the Subject Land as described in the COC was lawfully carried out immediately before the approval date (i.e. 8 June 2000), there is no doubt that there is proof of continuous use for 15 years established under clause 63.11.

135 I note that under 63.02 the use of the land is to be characterised by the purpose of the actual use at the relevant date (i.e. when the use became non-complaint with the planning scheme and certified in this case the date of the COC) and not by classification in the table to clause 73.03 or the zone.

136 The existing use rights (as described in the COC) have not expired. The use of the Subject Land for the purposes of an airfield and the associated activities as described in the COC was first established in about 1966 and has continued since that time. Whilst the level of activity may have altered over time, the purpose of the use has not changed.

137 Consistent with Clause 63.11, I am satisfied that there is sufficient proof of the establishment of existing use rights, the use having been carried out continuously for 15 years prior to the date of the application for the certificate of compliance under section 97N.

138 Further, in respect of the second dot point in Clause 63.11, I am satisfied that even if the use did not comply with the scheme immediately prior to or during the 15 year period (which for the purposes of the issues raised is not necessary to be conclusively determined) at no time before or after the commencement of the 15 year period has the use been held to be unlawful by a decision of a court or tribunal.

139 I also find that there is no evidence that 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.

140 In respect of the application seeking to set aside the COC pursuant to section 97Q, for the reasons set out above, the application is rejected. There is no material mistake in relation to the issue of the certificate.

141 The existing use rights as identified in the COC are substantiated in accordance with clause 63. In particular the fourth dot point of clause 63.01 and clause 63.11.

142 There is no error in the COC in respect of the power to certify the use of the land or the form in which it was certified.

143 The Applicants sought, as an alternative to the section 97Q application, a declaration from the Tribunal as to the validity of the certificate of compliance.

144 In addition, the Council submitted that the Tribunal could, as an alternative, make a declaration pursuant to section 124 of the VCAT Act in respect of the existing use rights.

145 Underlying each of these applications or potential relief sought is the question of existing use rights and the validity of the COC.

146 It is ultimately open to the Tribunal to make a declaration in respect of the COC separately or in addition to the determination of the section 97Q application.

147 This Tribunal has the power to grant a declaration on its own volition under section 124 of the VCAT Act that particular land has the benefit of existing use rights.[43] The form of a declaration may be in more general language than is set out in a certificate of compliance.[44]

148 However, given my findings that the certificate of compliance is valid in its form and substance and that the underlying existing use rights as described in that certificate of compliance continue to describe the use of the land, there is no need for the Tribunal to make an order pursuant to section 149B(1)(a) of the P&E Act or a declaration pursuant to section 124 of the VCAT Act, nor would it be appropriate in the circumstances to do so.

149 The joint Applicants request pursuant to section 97Q to cancel or amend the certificate of compliance COC2020/003 issued under Part 4A of the P&E Act is refused.

150 The application for alternative relief pursuant to section 149 B(1)(a) of the P&E Act is also refused.

151 In the circumstances, the Tribunal also declines to make any declaration pursuant to section 124 of the VCAT Act.

[3] The KAC's written submissions dated 9 May 2022 at [13] indicated that there are 34 hangars the majority of them being leased by members of the KAC.

[4] 'Constitution of the Kyneton Airfield Committee of Management', Exhibit WC5.

[5] An example (2006) of the Service Agreement is Exhibit WC10.

[6] The Planning Officer's Report records that this application was a resubmission of an earlier certificate of compliance application which was withdrawn due to a lack of documentation submitted to support the submitted use sought for certification.

[7] Planning Report, COC/2020/3, at page 4.

[8] Over 900 pages in total were filed on behalf of the Applicants.

[9] These are the subject of the September 2022 proceedings (P11318/2021).

[10] 'Letter from Ian Pridgeon to Jay Williams', 9 April 2020 (by email), referred to by the Applicants as 'Appendix 5A' and filed on 28 March 2022.

[11] This is the subject of the September 2022 proceedings (P11318/2021).

[12] See exhibit SM1A and SM1B to the affidavit of Sharon Macaulay sworn 31 March 2022.

[13] See Exhibit WC 9 'Kyneton Airfield Authorised Land Area (ALA) Sheet' dated April 1992. This plan shows how assets on all three lots formed part of the Kyneton and continue to do so.

[14] The affidavit of Sharon Macaulay made 31 March 2022 together with Exhibits 1-6 and the affidavit of Warren Peter canning made 31 March 2022 and the Exhibits 1-37 have been considered and retained on the Tribunal file.

[15] The Planning and Environment Regulations 2015 (Vic) provide for Form 14 in Schedule 1 of the Regulations as the prescribed form for a certificate of compliance for an application under section 97N(1)(a) of the P&E Act.

[16] Copies of the ariel photographs were provided to the Tribunal.

[17] Planning and Environment Act 1987 (Vic), s 97O(1).

[18] See Hoban v Mornington Peninsula SC [2007] VCAT 1931 [48]-[51]; Plant v Casey CC [2010] VCAT 1699 [18].

[19] Sharon Macaulay, 'Respondent's Planning Submissions Report', 9 May 2022 [33].

[20] Macedon Ranges Planning Scheme Clause 63.02 ('MRPS').

[21] [2011] VCAT 2317.

[23] Written Submissions on Behalf of the Responsible Authority, 9 May 2022 [27].

[26] [2016] VCAT 1198, [71]-[73] ('Seers').

[27] The statutory power arises from ss 6(3) and 6(4) of the P&E Act.

[28] Victoria, Parliamentary Debates, Legislative Council, 13 November 1993, 1343 (Hon. R.I. Knowles).

[29] Hoban v Mornington Peninsula Shire Council [2007] VCAT 1931, [51].

[30] Wellington & Ors v Surfcoast Shire Council [2011] VCAT 2317 [93].

[31] Peninsula Aero Club v Mornington Peninsula Shire Council [2020] VCAT 877.

[34] Affidavit of Warren Canning, 31 March 2022.

[35] Ibid, [14]-[15] and exhibit WC5.

[36] Ibid, [24]-[25] and exhibit WC10.

[37] Ibid, [57]-[58] and exhibit WC30.

[38] Exemptions from permits required in certain circumstances.

[39] Wellington & Ors v Surfcoast Shire Council [2011] VCAT 2317 [156]; Kraan v Cardinia SC [2006] VCAT 1629, [50]-[54].

[41] 'Letter from Ian Pridgeon to Jay Williams', 9 April 2020 (by email), referred to by the Applicants as 'Appendix 5A' and filed on 28 March 2022.

[43] Boersma v Frankston City Council [2016] VCAT 1080 [50].

[44] Voutsas v Kingston City Council [2019] VCAT 42 [27].