By Dongyun Kwon
The Victorian Civil and Administrative Tribunal (VCAT) has ruled in Yarra Ranges Council’s (YRC) favour, allowing the council to proceed with an enforcement order.
YRC alleged the respondents, the Slawinski family, had unlawfully used the land as a store at 81-83 Don Road, Healesville and had ordered them to remove all the items on the property by 7 August.
The property is included in the Low Density Residential Zone (LDRZ) under the Yarra Ranges Planning Scheme and under the planning scheme, it is required to have a permit for the use of a store.
According to one of the clauses, the condition to apply for the permit is that the store must be in a building, not a dwelling and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.
In the decision, VCAT Senior Member S P Djohan said YRC claimed the existing dwelling on the subject land has not been occupied at any relevant time.
“YRC alleged that the subject land is used to store equipment, goods, boats, tyres, construction materials and motor vehicles not in conjunction with the occupation of a resident of the existing dwelling and claimed the use of the subject land should be prohibited,” the decision reads.
YRC building planning and compliance officer Nadine Harvie undertook six inspections of the subject land on 15 February 2022, 10 May 2022, 30 June 2022, 5 December 2022, 24 July 2023 and 15 April 2024 respectively.
“She [Ms Harvie] observed that the subject land was being used to store a variety of goods and equipment, such as garden equipment, push lawn mowers, brush cutters, ride-on mowers, registered and unregistered vehicles, registered and unregistered vehicles trailers, boats and unregistered boat trailers, construction and building materials, automotive parts, tyres, scrap metal, car parts and other vehicle parts without any occupant,” the decision reads.
“She described the existing dwelling as a dilapidated building that was not currently capable of residential use.”
The two registered owners didn’t attend the final hearing.
The first respondent (John Merak Slawinski) didn’t attend it without reasonable excuse and Andrew Slawinski, who attended it on behalf of the second respondent (John Peter Slawinski), informed the VCAT that the second respondent did not object to the making of the enforcement orders sought by the YRC.
“Considering the nature of the items, I am satisfied that with diligent effort, complete removal of the items can occur by 7 August,” the decision reads.
“Andrew Slawinski submitted that none of the items identified by Council as requiring removal belong to his father, the second respondent.
“There is simply no evidence before the Tribunal as to the ownership of the items and in addition, there is no evidence that the second respondent could not have entered upon the land and brought its use in compliance with the planning scheme by removal of the relevant items.”
VCAT included an order allowing YRC to carry out any work required to be carried out under the enforcement orders and to seek to recover the costs of doing so as a debt in a court of competent jurisdiction if there should be non-compliance with the enforcement orders by 7 August.
Ms Djohan said the council has foreshadowed that it would seek its costs of the proceeding against the first and second respondents.
“Timetabling orders have been made for the receipt of any application for costs and response submissions,” the decision reads.
“The Tribunal will determine any application for costs on the papers unless a party seeks the application to be listed for hearing.”
