The recent decision of the Victorian Civil and Administrative Tribunal (VCAT) in Seers v Macedon Ranges SC (Red Dot)  VCAT 1198 (Seers v Macedon) has provided authoritative guidance as to whether existing use rights arise under a permit or the planning scheme in circumstances where the use commenced before the approval date to a validly issued permit and the permit has not expired. Land owners who have the benefit of existing permits should be aware that they are a viable alternative source of existing use rights in addition to the planning scheme.
Anthony and Suzanne Seers (Seers), represented by David Vorchheimer, Partner, at HWL Ebsworth Lawyers, were the owners of land (Hedge Farm) they purchased in 2009. The Seers used the land for the purpose of accommodation (including a bed and breakfast), a gallery and function centre pursuant to a permit issued in 1996 (Permit). The Seers argued that since the land had been continually used in accordance with the Permit for over 19 years, that the land enjoyed rights to be used in accordance with the Permit permissions.
Macedon Ranges Shire Council (Council) had formed the view that the land did not enjoy the existing use rights as claimed by the Seers, arguing that the uses to which the Seers were putting the land were not in accordance with the permissions of the Permit, and that there had been a break in the existing use.
The Seers led what Gibson DP described as an ‘extremely detailed array’ of evidence aimed at establishing the continued use of the land. Council relied primarily on the evidence of the previous former owner of the land, Ms Davey, which Gibson DP characterised as self serving, vague, and evasive.
The matters to be determined
In showing whether existing use rights exist, Gibson DP identified that they are to be established on the ‘balance of probabilities’ based on the facts and evidence available. This was in contrast to the ‘beyond reasonable doubt’ approach taken by the Council in their initial rejection of the Seers’ claim.
Three interrelated matters had to be decided to determine whether existing use rights attached to the land on the balance of probabilities:
- Whether the use had been continuous for over 15 years;
- Whether the characterisation of the use matched the permissions of the Permit; and
- What was the more appropriate source of the existing use rights.
The Council led evidence that there had been a break in the claimed existing use for a period of two years and seven months (between 2007 and 2009). Had that evidence been accepted, it would have been sufficient to prevent existing use rights from arising under the planning scheme and under the Permit as the more than two year gap would have been sufficient to cause the Permit to expire in accordance with s 68(2)(b) of the Planning and Environment Act 1987 (Vic) (Act).
Gibson DP identified that whether the use had stopped for that period was a question of fact to be determined on the evidence on the balance of probabilities. Based on her assessment of the relative merits of the evidence provided by both parties mentioned above, Gibson DP determined that the Seers’ evidence sufficiently showed, on the balance of probabilities, that the land had been continually used for the purposes permitted by the permit without a break between 2007 and 2009 as the Council had alleged.
How should the existing use be characterised?
The Permit allowed use as a ‘Gallery, Bed and Breakfast and Receptions [sic]’. Having established that the use of the land had been continual for over 15 years, the characterisation of the use of the land had to align with what the Permit allowed in order for existing use rights to exist.
Clause 63.02 of the planning scheme required the use to be characterised by the purpose of the actual use at the relevant date. In this instance, the three uses described in the Permit were not defined in the scheme at the time the Permit was issued. As such, Gibson DP gave them their plain ordinary meaning. Looking at the purposes for which the land had been used since the Permit was granted, Gibson DP identified that despite the specific activities and intensity of those activities having changed over time, the evidence showed that the land had been used for purposes that satisfied those allowed by the Permit.
From where do the existing use rights arise?
Gibson DP identified that the starting point for any enquiry about whether existing use rights can be established should always be to look at why it is necessary to establish the existing use rights. In the normal case, the necessity arises because a change in the planning scheme since the permitted use commenced means that the use would not now be permitted or would require a permit. If the land use complied fully with the Planning Scheme it would not be necessary to establish existing rights at all.
In addition to this, Gibson DP noted that the concept of existing use rights is based on fairness, in that it would be unfair if a use that was lawful one day became unlawful the next because of a change in the planning scheme. This is supported by s 6(3) of the Planning and Environment Act 1987 (Vic).
Taking the above into account, Gibson DP emphasised that the Seers and Council had wrongly assumed that the existing use rights had to come from clause 63.01 of the Planning Scheme. Instead, Gibson DP emphasised that although the Planning Scheme had changed in 2000, it did not render the use of the land for which the Permit had been granted unlawful. As such, since the Permit provided rights created under the Planning Scheme, which was a subordinate instrument for the purposes of the Act, and had continued in existence since 1996, the Seers had an ongoing right to use the land in accordance with the Permit. They did not need to rely on clause 63.01 in order to do this, even though they could have also done so.
When seeking to establish existing use rights in relation to land, land owners should:
- Look initially to any permits that may apply to the land and consider whether the uses permitted on the land have been rendered unlawful by any subsequent changes to the Planning Scheme, as this may provide a basis for existing use rights; and
- In the alternative, provide detailed and accurate evidence so as to support the establishment of existing use rights in accordance with clause 63.01 of the planning scheme.
This article was written by David Vorchheimer, Partner and Matthew Reiman, Trainee Solicitor.