VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1521/2023
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CATCHWORDS	
Whitehorse Planning Scheme, scout hall and garage located in a residential area; dispute about how they have been utilised over time and whether any ‘existing use rights’ exist in relation to same; application for a Declaration that ‘existing use rights’ do exist because of 15 years or more of continual use; Tribunal hearing with two main parties and a neighbour simply granted up to one hour to make submissions to the Tribunal; two main parties reaching a consent position after the hearing; form of Declaration granted.      	
Applicant	Scout Association of Australia Victorian Branch	

Relevant Authority	Whitehorse City Council	
Other	Tim Denning (on behalf of Shawlands Reserve Residents' Committee)	

SUBJECT LAND	20 McCracken Avenue
BLACKBURN SOUTH Victoria 3130	

HEARING TYPE	Hearing	

DATE OF HEARING	19 April 2024	

DATE OF ORDER	9 May 2024	

CITATION	Scout Association of Australia Victorian Branch v Whitehorse CC [2024] VCAT 431	
Order
1	Pursuant to Section 149A(1)(c) of the Planning and Environment Act 1987, the Tribunal makes the Declaration set out in Order 2 below.
2	The Tribunal Declares that:
(a)	The whole of the subject land (Lot RES1 on Plan LP33386) is currently being used for each of the following purposes:
	*	a Scout hall;
	*	a place to conduct Scouting activities; and
	*	a performing arts centre.
(b)	The whole of the subject land has been used continuously for each of these purposes between 7 December 2008 to 6 December 2023.
(c)	An existing use right is established for such purposes under Clause 63.01 of the Whitehorse Planning Scheme on this basis.
Philip Martin
Senior Member			

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Appearances
For applicant	Geoff Lake of Counsel, instructed by Minter Ellison lawyers.  Mr Lake called sworn lay evidence from the following lay witnesses – Andrew McGrail (President of the Gilbert and Sullivan Society of Victoria), Jon Willis (Chair of the Scouts Victoria Board and Producer of the Victorian ‘Gang Show’), Doug Wright (whose Affidavit indicates that he has been involved in Scouts since 1967) and Jon McGregor (Executive Manager and General Secretary of Scouts Victoria).	
For relevant authority	Mathew Sherwell of Sherwell Harrison Munro Lawyers	
For other	In person	

  Reasons
nature of proceeding and practical outcome at end of VCAT hearing
1	The subject land at 20 McCracken Avenue in Blackburn South is an irregular shaped lot falling within an established residential location in a middle-ring suburb.  The site has for some decades been owned by the Scout Association of Victoria Victorian Branch, which for convenience I will abbreviate to ‘SAV’.  The site is zoned Neighbourhood Residential Zone Schedule 3 and also affected by two overlay controls which are inconsequential for my purposes.
2	A planning permit No. 614 (Permit) was granted in 1973, authorising the “…erection of a steel garage at an existing scout hall in accordance with the endorsed plans”.  I understand that no equivalent planning permit has been located for the main scout hall.  However the Council Planning Officer’s Report which was prepared in association with the Permit refers to the site as being used for the purpose of a scout hall.  Also the endorsed plan which forms part of the Permit shows a large existing building on the site, labelled ‘Existing scout hall’.
3	In practice, it is essentially undisputed that the as-built scout hall and garage have existed on the site for decades.  What has become disputed is whether the use of the site by SAV or any tenant of SAV over this long period (or at least the 15 years leading up to 6 December 2023) has been continuous or not.  If the answer is ‘no’, that is the end of the matter.  If the answer is ‘yes’, then the further issue arising is how to best characterise the ‘existing use rights’ that exist.
4	From the information provided to the Tribunal , it appears that up to circa 2018, the relationship between the relevant neighbours and SAV’s use of the subject land was fairly straightforward.  However since that time, SAV has used the site as the base for its ‘Gang Show’ performing arts activities, which in turn has apparently led to at least some adjacent neighbours having major ‘off-site amenity impacts concerns’ about such use.
5	This has more recently come to a head, where the relevant neighbours have raised their ‘amenity’ concerns with Council and where Council has then carried out a ‘planning compliance’ investigation into the situation.  This process has led to two VCAT proceedings being on foot, as follows:
•	This proceeding P1521/2023, being an Application for Declaration made by SAV under Section 149A(1)(c) of the Planning and Environment Act 1987 (Act), where SAV in simple terms is seeking the Tribunal’s confirmation that the subject land has certain existing use rights (EUR) arising from its continuous use for 15 years or more for different forms of Scouting/the arts.
•	A related planning enforcement proceeding P1478/2023, initiated by Mr Denning and certain other resident objectors.  
6	For the record, the Tribunal Registry has processed both of these applications in the usual way, as the Tribunal does with the many hundreds of planning proceedings coming to VCAT each year.  Where there are two related proceedings at VCAT which were lodged with the Tribunal at different times, it is the ‘normal course of things’ that they have different hearing dates, with one hearing date being some time after the other.  
7	In keeping with this ‘normal course of things’, this P1521/2023 proceeding was set down for a hearing on 19 April 2024.  Simply by way of context, the related P1478/2023 planning enforcement hearing is set down for a compulsory conference (CC) on 29 May 2024 and a two day main hearing commencing on 31 July 2024.   
8	By way of explanation, in relation to how the Act is drafted, the Victorian Parliament has taken the approach that some planning applications to VCAT include the opportunity for neighbour/third party participation, whereas with some other forms of application the default position is that neighbours cannot participate.  In this context, one of these latter type of processes is a Section 149A application – the default position is the only parties involved in such a proceeding are the person making the application and the ‘responsible authority’ (which is typically the relevant Council).  As I mentioned at the hearing, it was Parliament (not VCAT or Victorian councils) that made these judgements about how the Act was drafted in this regard.
9	For the reasons explained in the paragraph above, the default position is that no neighbours are able to become parties to this P1521/2023 Application for Declaration, which (with one proviso) was confirmed by Senior Member Rickards as follows.  In relation to Mr Tim Denning who lives alongside the subject land and who wishes to speak on behalf of the Shawlands Reserve Residents' Committee, SM Rickards confirmed in her procedural orders dated 16 February 2024 that:
•	On the one hand, Mr Denning could not become party to the proceeding, for the reasons I have already summarised further above.
•	On the other, Mr Denning (pursuant to Section 61(2) of the Victorian Civil and Administrative Tribunal Act 1998) was allowed to pre-circulate a written statement and then speak for up to one hour at the 19 April 2024 scheduled hearing before myself.  It was clarified by SM Rickards that Mr Denning’s pre-circulated written submission could include attachments.
10	As the allocated presiding legal Senior Member at this 19 April 2024 hearing, at the beginning of the hearing, I:
•	Made some simple opening comments and confirmed that I had read the three written submissions lodged with the Tribunal.
•	Provided a similar explanation as I have set out two paragraphs above, regarding how Parliament has chosen to regulate to what extent neighbours can participate in different VCAT proceedings arising under the Act. 
•	Made a ‘Declaration’ regarding my own circumstances in presiding over the hearing, where no party objected to same.
•	Explained the basic steps that the hearing would be going through.
•	Checked with the two parties as to how they would be presenting to me.
•	Checked that Mr Denning understood the process.
11	It was helpfully clarified by Mr Lake that:
•	SAV is seeking a Declaration that the subject land has the benefit of EUR, where in this situation SAV needs to show 15 years of ‘continuous use’ for the purposes of Clauses 63.01 and 63.11 of the Planning Scheme.
•	The relevant ‘15 year period’ that SAV is seeking to establish for these purposes is the period from 7 December 2008 to 6 December 2023.
12	When we then got properly underway, Mr Lake set out SAV’s case and in due course called his four sworn lay witnesses as I have indicated above.  Council asked questions of each of these witnesses and I had some also.  Mr Lake in due course then spoke to to his lengthy written submission.  During the day I also heard oral submissions from Mr Denning, who took up the majority of the one hour of time allocated to him.
13	Having heard from SAV and Mr Denning, I then heard submissions from Mr Sherwell on behalf of Council.  It seems fair to say that, whilst he still had to get proper instructions, by the end of the hearing Mr Sherwell was acknowledging to me that:
•	The four lay witnesses called by SAV had extensive previous personal experience with the SAV or Gilbert & Sullivan Society of Victoria (G & S Society) activities continually taking place on the subject land over the period going back well in excess of the relevant 15 years, as set out in great detail in the Affidavit(s) provided by the four lay witnesses.  This includes numerous corroborating documents attached as exhibits to the these Affidavits.  One example of such ‘extensive previous personal experience’ is that Mr McGrail (who is currently the President of the G & S Society) gave sworn evidence that he has been involved in at least one G & S Society production per year involving the subject land since 2008.
•	The nature of the long term ‘performing arts’ activities taking place on the subject land were broader rather than narrower.  Notably, Mr McGrail’s sworn evidence included that the G & S Society has continually used the subject land for various purposes (notably storing sets/costumes/props plus rehearsals and auditions) since the late 1990s. Part of the sworn evidence of the other three lay witnesses was that over the 15 year period, a ‘Rovers’ group continually were meeting at the subject land, until more recently the site has been utilised by the SAV ‘Gang Show’ for storage and auditions/rehearsals.  This is in addition to the subject land being used over this period by the smaller SAV performing arts group ‘Whitehorse Showtime’.  It was part of the sworn evidence from Mr Wright is that he has been a member of Whitehorse Showtime since 1971 and is presently its Executive Director. 
14	Whilst acknowledging that (regardless of the position of the two parties) I would still need to consider the submissions of Mr Denning, I made the following direction at the end of the hearing.  I asked Mr Lake and Mr Sherwell to confer with each other and within roughly a week jointly confirm in writing to the Tribunal whether they had reached a consensus position regarding:
•	Whether some form of Declaration should be made?
•	If so, what the wording of same should be.   
15	In due course, I did receive further correspondence of this type from the two parties. Disregarding minor differences in wording which are of no consequence for my purposes, this final correspondence confirmed that the parties had agreed that the Tribunal could make a Declaration confirming that EUR have been established in relation to the subject land for its use for the purpose of:
•	A Scout hall.
•	A place for Scouting activities.
•	A performing arts centre (in recognition of the long term use of the subject land by the G & S Society). 
16	As the only two parties to this proceeding have now reached a ‘consent position’ which I accept is reasonable and capable of being processed by the Tribunal, my main discretion in this proceeding has shifted to simply responding to the submissions made by Mr Denning, to which I now turn. 
tribunal findings on submissions made by mr denning
17	The Tribunal has taken into account the various points made by Mr Denning in his written and oral submissions to the Tribunal.
18	For the following reasons, I find that these ‘various points’ for my purposes:
•	Carry little weight.
•	Mostly deal with issues that are outside my confined role in this P1521/2023 proceeding, but instead will need to be ventilated at the coming CC and main hearing in the P1478/2023 planning enforcement proceeding.  
19	First, by his own acknowledgement, Mr Denning has only lived at his own adjacent property relatively recently vis-à-vis the 15 year period which is our focus here.  Hence it is self-evident that Mr Denning is not able to provide any firsthand evidence as to what activities were occurring on the subject land ‘further back in time’, where the timeframe in question is ‘15 years’.
20	Second, the bulk of the concerns being raised by Mr Denning relate to what he says have been the major ‘off-site amenity impacts’ on adjacent neighbours (particularly since 2018), due to the use of the subject land by the SAV and/or the G & S Society.  As I said at the beginning of the hearing, I have not been tasked with reviewing such alleged ‘off-site amenity impacts’ – this is an issue for another day in relation to the P1478/2023 proceeding.
21	Third, it was a major plus for the case put by SAV that all of the sworn witnesses have had a very long term personal involvement (well over 15 years) in either the SAV or the Gilbert & Sullivan Society and the use by same of the subject land.  In other words, they were able to give sworn evidence from their own direct experience about how the subject land was being continually used during the 15 year period in question.  I consider that the submissions made by Mr Denning do not detract from or undermine in any meaningful way the strong credibility and long-term personal involvement of this sworn evidence of the four lay witnesses.
22	In summary then:
•	I accept that both the State-wide ‘Gang Show’ and any more regionally-based more petite performing arts shows such as the ‘Whitehorse Showtime’ are a mainstream part of Scouting in Victoria.
•	Taken as a whole, I find that the SAV called very strong and credible sworn evidence from their four lay witnesses, to corroborate/substantiate the establishment of EUR and the particular Declarations that the SAV is seeking.  In other words, very strong and credible sworn evidence of ‘15 years continuous use’ of the subject land by the SAV and the G & S Society.
•	At least by a week after the hearing, Council had accepted this sworn evidence and had agreed to Tribunal making the Declarations sought by the SAV i.e. a consent position had been reached (which I accept). 
conclusion
23	For the reasons set out above, I have made the Declarations sought by the SAV.  Obviously there is still a real ‘debate to be had’ about the alleged off-site amenity impacts of the activities occurring on the subject land, which will be dealt with at the forthcoming CC and main hearing of the P1478/2023 planning enforcement proceeding.
24	To be clear, my role in this P1521/2023 proceeding has been to deal with the disputed nature of the uses occurring on the subject land over the relevant 15 year period.  I have not been tasked to deal with whether any existing structures on the subject land might lack proper ‘development consent’ – this is an issue (as relevant) for the P1478/2023 planning enforcement proceeding.  Likewise it is outside of the scope of my discretion to consider whether any day-to-day activities such as ‘floodlighting’, any amplified music and/or any PA system operated on the subject land are unreasonably impacting on the amenity of the adjacent neighbours.
25	For the removal of any doubt, I agree with the final written submission by the SAV in relation to the following issue.  As part of its final written communication, Council requested that the Tribunal make a further  Declaration that “No existing use right for the use of the Land for the purpose of a place of assembly for community groups is established”.   
26	I endorse the comment by SAV this request by Council seems an over-reach.  The more sensible approach seems that the Tribunal simply approve or refuse the proposed Declarations which SAV (as the applicant) has put before the Tribunal.  As at the very final stage of this proceeding after the hearing, SAV is not seeking any Declaration whether or not there is any EUR for ‘place of assembly’.  The question of whether or not the site enjoys any such ‘place of assembly’ EURs could always be properly reviewed at a later stage, as necessary.  

Philip Martin
Senior Member