VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P623/2024
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CATCHWORDS	
Mount Alexander Planning Scheme; large site forming part of central Maldon that was initially developed for tourist accommodation and since circa 1987 owned/operated by a registered charity Blue Light Victoria; site recently sold and the new owner has applied for a Section 97N Certificate of Compliance that the site enjoys existing use rights to be used for the purpose of ‘Accommodation’; Council has refused to issue same; Tribunal review and hearing; Council directed to issue a Certificate of Compliance for the use of ‘youth camp’.     	

Applicant	Clancy Blue Pty Ltd	

Relevant Authority	Mount Alexander Shire Council	

SUBJECT LAND	16 Phoenix Street
MALDON VIC 3463	

HEARING TYPE	Main Hearing	

DATE OF HEARING	29 August 2024	

DATE OF ORDER	24 September 2024	

CITATION	Clancy Blue Pty Ltd v Mount Alexander SC [2024] VCAT 909	
Order
1	Pursuant to Section 97N of the Planning and Environment Act 1987, Mount Alexander Shire Council is directed to issue to the applicant a Certificate of Compliance as follows:
•	The Certificate of Compliance must confirm that the land at 16 Phoenix Street, Maldon has existing use rights to be used for the purpose of a ‘youth camp’.    

Philip Martin
Senior Member		Joel Templar
Member	

Appearances
For applicant	Mr Timothy Stevens of Aureous consultants, who called sworn lay evidence from Mr Carter (the project architect when the site was developed for tourist accommodation in the 1980s) 	
For relevant authority	Ms Anita Smith (Council planner)	

Information
Nature of proceeding	Application under section 97P(1)(a) of the Planning and Environment Act 1987 (Vic) – application to review a decision to refuse to issue a certificate of compliance.	
Planning scheme	Mount Alexander Planning Scheme	
Zone and overlays	Public Conservation and Resource 
Erosion Management Overlay	
Land description	The subject land lies on the south eastern side of central Maldon and has an area of 2.636 hectares.  Currently the site features a site office (dwelling), a large bike shed, a circuit of bike tracks, a common room, a food hall, various services/storage facilities, nine accommodation units, extensive native vegetation and playgrounds, a mini golf course, a tennis court, a volleyball court, a rock climbing facility and associated infrastructure.  The Tribunal understands that there has been no active use of the site since it was sold to the current private owner on 9 February 2023.	

  Reasons
[summary of part oral decision and final findings]

What is this proceeding about?
1	On the south-eastern side of central Maldon lies (for its location) a very generous size lot which is zoned Public Conservation and Resource (PCRZ), but has since 2023 been privately owned.  The Planning Scheme provides that the use of ‘Accommodation’ is a prohibited use in the PCRZ.
2	The new owner has sought a Certificate of Compliance (COC) pursuant to Section 97 of the Planning and Environment Act 1987 (Act).  More particularly, the new owner seeks a COC that the site enjoys existing use rights (EUR) for the purpose of ‘Accommodation’.
3	It is common ground that ‘Accommodation’ is a defined term in the Planning Scheme and that this definition is very broad – see the ‘nesting diagram’ for ‘Accommodation’ in the Planning Scheme which is set out at page 13 of the Council written submission.   
4	Council has refused to issue such a COC and the new owner/applicant has sought the Tribunal’s review of such refusal.  The hearing of this proceeding came before us on 29 August 2024, with both parties presenting their written submissions to us and showing us various associated information/images.  Mr Stevens called sworn lay evidence from Mr Carter, who was the project architect when the site was developed for ‘tourist accommodation’ in the 1980s.
5	To the extent that any of the issues discussed below are legal issues, the findings set out below are made by Senior Member Martin, as the presiding legal member.
6	At the end of the ordinary hearing process, after standing the hearing down briefly, the Tribunal returned and provided a part oral decision, which is  summarised below.  Suffice to say that the Tribunal:
•	Indicated at this point that it was satisfied that (by consent) it could as a basic starting point at least direct Council to issue a COC that the subject land has EUR for the purpose of ‘youth camp’.
•	Provided some initial oral findings regarding the applicant’s claim that the site enjoys EUR for the higher purpose of ‘accommodation’.
•	Indicated that the remaining issue on which it would reserve its decision in relation to the ‘claimed EUR for accommodation’ issue was how the use of the land in recent decades should be properly characterised.
7	The balance of these reasons:
•	Confirms the quite rigorous process that applies at the Tribunal for establishing EUR.
•	Summarises the nature of the EUR evidence presented to us.
•	Clarifies why the Tribunal is content to (as a starting point) at least issue a COC that the site enjoys EUR for the purpose of ‘youth camp’.
•	Confirms the Tribunal’s oral decision provided at the end of the hearing regarding some aspects of the case being put forward by the applicant.
•	Sets out the Tribunal’s final findings on the ‘characterisation’ issue.
•	Provides the Tribunal’s overall ‘conclusion’.
more rigourous process for a party to establish existing use rights at Vcat
8	On the one hand, VCAT aims to be as accessible as practicable for the Victorian public and Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 (amongst various points) promotes VCAT hearings focusing on the substance of the relevant dispute and avoiding undue formality.
9	On the other, the potential establishing of EUR is a more formal and serious aspect of the Victorian planning system, where the potential establishment of such EUR creates an exception to the normal Planning Scheme requirements.  To have a workable and robust planning system that the Victorian public has confidence in, it is common sense that a thorough and convincing case needs to be made out, for either a Responsible Authority or VCAT to accept that any one site enjoys EUR.
10	The Tribunal is also mindful of the previous caselaw that the party claiming EUR is the one that bears the onus of providing EUR at VCAT – there is no onus on Council to disprove that EUR exist.
11	For these reasons, cases at in the Planning and Environment Division at VCAT involving EUR disputes typically are somewhat more formal and involve ‘higher levels of proof’ compared to ordinary planning merits hearings.  The Tribunal expects not merely ‘submissions from the bar table’ but written Affidavits and/or sworn evidence from suitable witnesses called at the hearing, to verify how the applicant claims the subject land has been historically used.
12	In this context, it is surprising and was unhelpful for the applicant’s case that so little formal evidence has been provided by the applicant at the hearing before us.  The applicant’s written submission is brief at four pages and did not include any Attachments.  Although we heard from the 1980s tourist accommodation project architect Mr Carter about how the original development came about, the applicant did not produce any Affidavits or call any sworn witnesses to address how the site has actually been used day-to-day in recent decades.
13	Indeed, it was very fortunate for the applicant that the Council planner who appeared before us (Ms Smith) had very commendably been the one who had carried out detailed research into the historical use of the site and provided numerous Attachments to her written submission.  It is also fortuitous for the applicant that at the hearing, Council was content from its own research that the subject land was continually used for over 15 years up to 2023 as a ‘youth camp’, rather than Council ‘putting the applicant to proof’ on this issue.
nature of the eur evidence presented to tribunal 
14	Within the limitations of the somewhat sparse formal evidence provided to the Tribunal, the Tribunal’s findings on the available evidence is as follows:
•	There was minimal written evidence available about how the site was first developed in the 1980s.  However with reference to the sworn oral evidence of Mr Carter presented to us at the hearing (where Mr Carter was the project architect at that time), we accept that in the early to mid 1980s the subject land was funded by ‘Tourism Victoria’ (a State government authority at that time) for the construction of tourist accommodation.  Mr Carter also gave sworn evidence that the as-completed development was then immediately leased out to a private operator, for the day-to-day running of such tourist accommodation.  Reinforcing this general picture is the ‘Architecture Australia’ article from that period that Mr Stevens referred to during the hearing. We note Mr Carter’s comment that such private operation of the facility was problematic.
•	There is various information which Council located to verify the ownership/use of the site by Blue Light Victoria Youth Camps Inc (BLV), a registered charity, from 1987 to 2023.  Notably Council located and referred us to the following - a BLV Australian Charities Annual Information Statement 2020 explaining the mission of the BLV, an equivalent ABC Central Victoria article dated 13 September 2022 and an article in the Terrengower Times rural newspaper dated 16 September 2022 discussing the closure of the BLV operations on the subject land.  A copy of each of these sources was helpfully attached to the Council written submission.
•	It is self-evident that the fact that the site has been considerably altered/improved since the 1980s with so many features/facilities tailored for youth activities (which we have itemised at page 2 above) reinforces the case that this has been its day-to-day use.
•	Council indicated by the end of the hearing that it is satisfied that the whole of the subject land had been used for the ‘youth camp’ purpose and hence it accepted that any issued COC for the purpose of ‘youth camp’ should apply to the whole of the site.
15	In summary, based on the evidence provided by Council, the Tribunal is satisfied (as a starting point) that the whole of the subject land was continually used between 1987 and 2023 for the purpose of ‘youth camp’, and it content to issue a COC to that effect.  That is to say, where the parties agreed at the hearing that the relevant period for the Clause 63 ‘15 year rule’ is from 6 October 2008 to 6 October 2023, we are satisfied that the site was continually used over that 15 year period for the purpose of a ‘youth camp’.
summary of TRibunal’s part oral decision at the end of the hearing and ‘characterisation’ final finding
16	Beyond the basic findings already set out above, the issue then arises whether the applicant has made out its case that a COC should be issued not for ‘youth camp’ but for the higher use of ‘Accommodation’.  We have already mentioned that the use of ‘Accommodation’ is prima facie prohibited on the subject land and that it is defined very broadly in the Planning Scheme.
17	We have already explained that at a simple level, the applicant’s case here was hamstrung by the minimal formal evidence which it presented to the Tribunal.  For example, where the applicant was suggesting that the day-to-day use of the subject land over the was broader than just offering a specific ‘camp experience’ for temporary visits by groups of youth, the applicant did not provide any Affidavit documentation or call any sworn witnesses to make this out.  Mr Carter was not involved in the day-to-day running of either the original tourist accommodation or the BLV camps.
18	By the end of the hearing, the three key issues arising here were:
•	Whether the applicant could make out EUR under the last bullet point of Clause 63.01?
•	How the use of the site should be correctly characterised?
•	(If applicable) how much of the site should be seen as actively used for ‘Accommodation’.
19	On this first issue, the final bullet point of Clause 63.01of the Planning Scheme enables an applicant to potentially establish EUR if it can be established that:
•	The use is a lawful continuation by a utility service provider or other private body of a use previously carried out by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.
20	The Tribunal made an oral decision at the very end of the hearing that it was not satisfied that the applicant could rely on this final Clause 63.01 bullet point.  In particular, the Tribunal relied on the fact that Mr Carter’s sworn evidence was that (with the subject land at that stage being ‘crown land’) Tourism Victoria funded the building of the tourist accommodation, but never operated that accommodation itself.  In other words, the test from the final bullet point of ‘previously carried out by’ is not met where it was merely initial government funding involved.  
21	It is common sense and self-evident that where BLV (as a registered charity) operated the site over 1987-2023, BLV is not a government body.  
22	Turning now to the Tribunal’s findings on the ‘characterisation’ issue, as a starting point, the Tribunal finds that the subject land does not enjoy EUR for ‘tourist accommodation’.  
23	The Tribunal is satisfied from the available evidence that the 1980s initial use of the developed site was for ‘tourist accommodation’ which was open to the general public and involved fairly generic accommodation buildings and car parking.  By contrast, the indications are that since 1987, the site has had a quite different use and physical set-up, for the running of youth camps by BLV.  
24	The two uses are quite distinct from each other and the indications are that the site was substantially altered by BLV to add various activities suitable for youth camps e.g, a rock climbing facility, a mini golf course, a bike riding circuit, a bike shed that can accommodate up to 200 bikes, etc.  
25	The available evidence also indicates that (putting to one side the staff involved) it was only youth that were invited to come to the BLV camps, where such youth could only stay at the camp for short periods and by pre-booking.  This is all very different to standard ‘Accommodation’ as defined which is typically open to all ages and which can encompass a wide range of uses, some of which involve a longer-stay situation (e.g. a jail or a residential aged care facility). 
26	In terms of how the BLV operated the site between 1987 and 2023, all the indications are that it consistently operated the site in same way over this period, as you would expect when it was a registered charity.  As a registered charity, it makes sense the BLV needed to operate the subject land in a particular and specific way, to retain its ‘registered charity’ status.  It is not as if there is evidence that after 1987 some years the site operated for youth camps and other years it offered generic accommodation.  
27	For what it is worth, the Realestate.com.au advertisement for the 2023 sale of the subject land refers to the site as “…Currently operating as a school/youth camp facility…”.
28	In summary then, for the above reasons, the Tribunal finds that the correct characterisation of the use of the subject land since 1987 is that it has operated as a ‘youth camp’.  Certainly where the particular focus here is the 15 year period between 6 October 2003 and 6 October 2023, the Tribunal is  satisfied that the site was simply continually used for the purpose of a ‘youth camp’ over that period. 
29	Given the Tribunal’s findings set out above, there is no need to further consider the third issue of how much of the site any ‘Accommodation’ EUR might apply to.
conclusion 
30	For the reasons explained above, the Tribunal:
•	Has made orders above, directing Council to issue a COC that the subject land enjoys EUR for the purpose of a ‘youth camp’.
•	Is not convinced that any EUR exist for the broader claimed use of ‘Accommodation’.

Philip Martin
Senior Member		Joel Templar
Member