By Dongyun Kwon
The Victorian Civil and Administrative Tribunal (VCAT) stood up for Ace Equipment Services regarding the certificate of compliance issue with the land at 229-231 Victoria Road, Yering.
Applicant Ace Equipment Services took the case to the tribunal seeking a review of the Yarra Ranges Council’s decision to refuse a certificate of compliance application on the land.
The applicant had used related to its farming business for 15 years before it lodged the application last year.
Yarra Ranges Council, however, issued a refusal to grant the certificate of compliance on the land, including a lack of evidence to support the continuous nature of the land use.
In the decision, VCAT member Tracy Watson said she found the applicant’s description of the existing use is the appropriate characterisation as well as it accords with Clause 63.02 of the planning scheme.
“Clause 63.01 of the planning scheme provides that an existing use right can be established if ‘proof of continuous use for 15 years is established under Clause 63.11.’ In this case, Clause 63.11 allows for an existing use right to be established ‘even if the use did not comply with the scheme immediately before or during the 15 year period’, as each of the three listed conditions at Clause 63.11 does not apply,” the VCAT decision reads.
“The council’s notice of refusal describes the existing use as a ‘rural industry; vehicle store; materials recycling, and refuse disposal (maintenance and storage of civil works vehicles and associated equipment and materials, waste storage, shipping container storage and vehicle storage), a dwelling, four outbuildings and 19 shipping containers (23 outbuildings)’.
“The council’s description is different to the existing use that has been applied for. The certificate of compliance is being sought for ‘repairing and maintaining farming and construction plant and equipment; and storing materials for civil construction and farming.’ This more generalised description fits with the actual and substantive use of the land.”
Ms Watson also said the applicant’s characterisation of the existing use is sufficiently descriptive and accords with the Tribunal’s support of a ‘liberal construction’ of existing use rights when establishing continuous use.
“In other words, the actual land use should not be shoe-horned into a legal/planning scheme land-use definition, which is how the council has described the existing use,” the decision reads.
“Further, this allows for an existing use right to still be established where the underlying purpose of the use has intensified over time, as is the case here.”
The Yarra Ranges Council submitted the details regarding the absence of planning permits relating to buildings and works, as Clause 63.05 of the planning scheme is applicable to this proceeding.
Ms Watson, however, said Clause 63.05 of the planning scheme was not relevant to her considerations as this Clause only applies once an existing use has been established.
“This leaves me to consider whether the applicant has provided a sufficient level of proof to show that the existing use has been carried out continuously for a period of 15 years prior to 7 August 2023, when the application was made to the council,” the decision reads.
“Essentially, the council’s position was that the applicant’s affidavits do not provide enough ‘date-stamped’ records across the 15-year period to sufficiently demonstrate continuous use. Further, the council submitted that the applicant had relied too heavily on aerial imagery to support their claim of continuous use.
“In making this argument, the council has looked at the material and evidence provided by the applicant through the lens of their own description of the use. I have already found that the broader description of the use provided by the applicant is the applicable characterisation of the use, for the purposes of establishing continuous use.”
Four people filed Affidavits in support of the continuous use of the subject site with the existing use for over 15 years.
On the basis of the Affidavits, the VCAT member found the existing use has been continuously operating from the subject site.
“At the end of the day, I need to be reasonably satisfied that the material provided by the applicant sufficiently demonstrates continuous use. The council did not take issue with the extent of aerial imagery, rather it was with the extent of datable records that featured a direct link to the subject site,” the decision reads.
“I conclude that the applicant has provided enough material and evidence to sufficiently prove, on the balance of probabilities, that the existing use has been carried out continuously for a period of 15 years prior to the date of the application with the council.
“I, therefore, find that the council’s decision should be set aside and a certificate of compliance for the use should be issued stating that the existing use complies with the planning scheme.”
