VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P990/2021
	
CATCHWORDS	
Claim of existing use rights – animal keeping – Clause 63 Loddon Planning Scheme – meaning of application or proceeding in Clause 63.11 – continuity of use – cessation of use in Clause 63.06 – evidence required for Certificate of Compliance 	

Applicants		James Joseph Kelly & Catherine Maria Kelly	

Responsible Authority	Loddon Shire Council	

SUBJECT LAND	23 Newbridge Road
NEWBRIDGE VIC 3551	

HEARING TYPE	Hearing	

DATE OF HEARING	7 February 2022	

DATE OF ORDER	1 March 2022	

CITATION	Kelly v Loddon SC [2022] VCAT 175	

Order
1	The decision of the responsible authority to refuse to issue a Certificate of Compliance is upheld.  
2	Pursuant to section 97P(2)(a) of the Planning and Environment Act 1987, the responsible authority is directed not to issue a Certificate of Compliance in respect of existing use rights for the use of the subject land for animal keeping.

Dalia Cook
Member			

Appearances
For applicants	Mr John Cole, Solicitor, Rogers and Every with Mr James Kelly	
For responsible authority	Mr Glen Harvey, Compliance Manager
He called Mr David Price, Local Laws and Planning Compliance Officer to give evidence	

 Reasons
What is this proceeding about?
1	The land has been used in the past for animal keeping — more specifically, greyhound breeding, boarding and training.  
2	The applicants claimed they have used the land continuously for animal keeping since they purchased it in 2002, until they ceased keeping dogs at the property on 26 January 2018.  They explained that the reason they ceased the use was to ensure compliance with the Loddon Planning Scheme (planning scheme) while seeking to prove their existing use rights claim. 
3	In 2020, the applicants applied to Loddon Shire Council (Council) for a Certificate of Compliance under the Planning and Environment Act 1987 (PE Act).  Relevantly, section 97N of the PE Act provides: 
Application for certificate 
(1) 	Any person may apply to the responsible authority for— 
(a) 	a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate …
4	Council refused to issue a certificate since it considered there was insufficient evidence provided by the applicants to demonstrate this claim during the relevant time period.  
5	The applicants seek review of this decision and request the Tribunal directs the issue of a Certificate of Compliance confirming existing use rights in respect of the land.  
What are the key issues?
6	Existing use rights are protected by section 6(3) of the PE Act.  The way existing use rights accrue or are lost is governed by Clause 63 of the planning scheme. 
7	The land is within the Township Zone and a planning permit is required for the use of the land for Domestic Animal Husbandry or Racing Dog Husbandry (both greater than two animals).  I refer to this as animal keeping for ease of reference. 
8	Relevant to this proceeding, Clause 63.01 provides that an existing use right is established in relation to the use of land if proof of continuous use for 15 years is established under Clause 63.11.  
9	The onus of proof is on the party asserting the existing use right and there must be sufficient proof akin to conclusive proof.    
10	Case law confirms that a provision to protect existing uses should be as liberally construed as the language of the provision allows in its context.  Clause 63.11 confirms that: 
If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.
11	Key issues for my determination are: 
•	What is the relevant time period during which the applicants must prove continuous use of the land for animal keeping? 
•	Is there sufficient evidence that the use of the land for animal keeping was operating continuously during the relevant period to justify the issue of a Certificate of Compliance? 
•	How does the cessation of use from 26 January 2018 affect this proceeding? 
Key findings 
12	For reasons explained in my reasons below, in summary, I find: 
•	The relevant time period to be demonstrated is 15 continuous years up to the date the application for a Certificate of Compliance was lodged with Council, on 20 May 2020 at first instance. 
•	I am unable to accept that the relevant time period referred to in Clause 63.11 is the date Council sent a letter to the applicant on 18 October 2018 advising that it was not satisfied that continuous use had been demonstrated at that point in time. 
•	There is insufficient evidence before me to confirm the existing use rights claimed during any continuous 15 year period. 
•	I find that the use was not operational from 26 January 2018 to 20 May 2020, being a critical time period for continuous use. 
•	Even if the existing use right had been demonstrated for a 15 year period at some point in time, it would have been lost by cessation of use for more than 2 years since.  
Relevant time period
13	As mentioned above, it is sufficient for the applicants to demonstrate 15 years continuous use for the relevant purpose prior to the date of ‘an application or proceeding under the Act or [this] scheme’.  
14	Mr Cole submitted that this provision is open to interpretation on the facts before me.  He suggested that I should regard the letter sent by Council to the applicants on 18 October 2018 as the date of such a ‘proceeding’.  
15	If this were true, the applicants would need to demonstrate 15 years continuous use from 18 October 2003 to accrue existing use rights. 
16	The letter from Council dated 18 October 2018 explained: 
•	Council records show that ‘approval was issued in 2002 however we are not aware that the use has been continuing since that time’;
•	animal keeping businesses needed to be registered with Council but no registration records could be located; 
•	the type of information that could form the basis of a claim for existing use rights; and
•	Council was unable to confirm existing use rights at that time.  It suggested the owners seek a determination from VCAT with the assistance of a town planning consultant. 
17	I find that the term “application or proceeding” in Clause 63.11 has a particular meaning given the conjunctive use of terminology “under this Act or scheme”.  The provision itself gives an example of an application for a Certificate of Compliance under section 97N of the PE Act being a sufficient end date for demonstrating 15 years continuous use.  Another option would be an application for declaration of existing use rights to the Tribunal under section 149A of the PE Act, for example. 
18	While a responsible authority has a general duty to enforce the planning scheme by virtue of section 14 of the PE Act, in this instance, I find that Council’s correspondence to the applicant does not constitute an application or proceeding under the Act.  
19	To my mind, there is a clear distinction between a formal application being made or proceeding being brought under the PE Act or planning scheme (referred to in Clause 63.11 as the ‘end date’), as opposed to a letter from a council as a responsible authority advising that further evidence would be required to substantiate an existing use rights claim.  
20	One indication that a letter from a responsible authority does not constitute an application or proceeding for the purpose of Clause 63.11 is the reference in the later part of that provision to a clear and unambiguous written direction.  This is addressed in entirely different terms as a limitation on a claim of existing use rights, rather than as setting the time period for such a claim.  
21	There is no definition of the word “proceeding” in the planning scheme.  Section 3 of the PE Act defines it as a proceeding in the Tribunal.  It is clear that Council’s letter did not of itself start (or even necessarily form the basis of) a proceeding at VCAT.  Likewise, it did not constitute an “application” under the planning scheme which would needed to have been made by the person claiming the existing use rights and to have followed due process.  
22	I recognise that although it is important to apply existing use rights provisions as liberally as they allow, a sensible construction by reference to context is required.  This approach was established by the Supreme Court in Mornington Peninsula Shire Council v Anderson and the High Court in Woollahra MC v Banool Developments Pty Ltd and applied by the Supreme Court in Octopus Media Pty Ltd v Melbourne City Council.  
23	I consider that Clause 63.11 intends to provide certainty of the relevant timeframe for proving continuous use.  Timeframes are critical for proving existing use rights by ‘long user’.  There is a need for a clear ‘end date’ to be established which can be easily verified by reference to the date of an application or proceeding under the PE Act or planning scheme.  
24	By contrast, identifying a particular piece of correspondence in a broader investigation as the relevant ‘end date’ is fraught because of the capacity for multiple interpretations of its content.  No such trigger can be inferred from the content of the letter referred to by the applicant.  
25	Therefore, I conclude that the relevant end date was the date the application was made to Council for a Certificate of Compliance.  
26	I was advised the application for a Certificate of Compliance was first made by Mr Cole on 20 May 2020 on behalf of the applicants although Mr Cole explained that he regarded the application as having been properly made on 26 November 2020 since it was accompanied by relevant supporting material.  
27	The Supreme Court in Octopus Media confirmed that the 15 year period of continuous use is immediately prior to the relevant application.  I note that its analysis of this issue also considered the purpose of the provision, including the need for recency and certainty. 
28	Taking the date most generous to the applicants (which was not opposed by Council), the continuous use would need to be demonstrated immediately prior to 20 May 2005 until 20 May 2020.  
Inadequate evidence of continuous use
29	Mr Cole explained that the use was initially carried out by the applicants as a “business” until approximately 2005/2006 when it became “a hobby”.  He advised that one key difference was that no business tax returns were lodged with the government from that time.   
30	Case law has confirmed that a use can increase or decrease in scale or intensity, and the method of operation can change, so long as the same purpose of the use continues.  
31	For this reason, I do not consider the transition from a business use to a hobby as necessarily problematic for a claim of existing use rights for animal keeping on this land.  What is relevant is the purpose of the use and whether it was sufficiently substantial to constitute a second use of the land in addition to that of a dwelling.  
32	Similarly, the fact that the use would have required registration with Council under related legislation such as the Domestic Animals Act 1994 (as outlined by Mr Price) but was not registered as such is not fatal to a claim that the land was used for animal keeping.  This should be distinguished from an incorporated code of practice referenced in Clause 63.07 of the planning scheme which would be mandatory. 
33	The use of the land during the 15 year continuous period under Clause 63.11 is not expressed to be dependent on all other relevant legislation or regulations being complied with.  In fact, such use could have been directly in conflict with the planning scheme provisions of the day yet relevant rights could accrue by long user. 
34	Evidence of the use was provided in the form of various documents in the lead up to the hearing.  Key documents relied on by the applicants included:
•	a letter from Council dated 30 September 2002 confirming existing use rights for animal keeping on the land as at that date; 
•	business name registration for Newbridge Kennels dated 21 July 1976;
•	ABN registration for Newbridge Kennels on 1 February 2003;
•	business name registration for Newbridge Kennels on 17 March 2003;
•	extract from National Greyhound Form newspaper dated 7 August 2003 confirming purchase of the business trading as Newbridge Kennels and intending to trade as a greyhound breeding and training facility; 
•	undated advertisements for dog boarding, spelling, pre-training and training at the property (including new kennel/yard improvements); 
•	BAS statements for 2004 and 2005 confirming trading during relevant periods; 
•	veterinary accounts/vaccination records dated October 2005, July 2006 and April 2007; 
•	extract from greyhoundrecorder.com.au website providing details of last 50 runners entered by James Kelly; 
•	a letter from Greyhound Racing Victoria dated 14 October 2020 confirming Mr Kelly has been registered with this authority since 2004 and the property has been the subject of regular inspections and found to be compliant; 
•	an undated letter from Suez Recycling and Recovery Australia confirming that the property trading as Newbridge Kennels has been a client with a general waste bin service collected on call since September 2003; and
•	various statutory declarations including:
o	from neighbours directly opposite attesting to their purchase in 2002 and the continuous use of the property between then and 6 March 2020 as a greyhound rearing/training facility; 
o	from a co-owner of the kennels dated 22 September 2018 saying at no time were there no dogs cared for at the property for nearly 2 years; 
o	from a client who used boarding services for approximately 5 years, dated 28 October 2018; and
o	from a client who had dogs reared or housed temporarily at the property in 2010, 2011, 2012, 2015 and 2016, dated 1 February 2019. 
35	Mr Kelly advised that he had completed an upgrade to the kennels after obtaining building approval in 2004.  He also appears to have completed a further upgrade to comply with changed industry restrictions before ceasing the use in 2018.  
36	Council submitted that the evidence provided by the applicants to it and the Tribunal was substantially deficient in proving continuous use for 15 years.  
37	Mr Price explained how he had worked with the applicants to try to encourage them to provide sufficient supporting material, or to apply for a planning permit for animal keeping as an alternative.  
38	Mr Cole accepted that the evidence provided for the applicants was “piecemeal” but that it was the best his clients could obtain.  He also advised that they had experienced a challenging relationship breakdown in the relevant period and certain documents were thrown out without realising the implications.  Also, he claimed their veterinarian had changed hands and they could not obtain additional records.
39	Mr Price gave evidence under affirmation that, in the years he had worked for Council as a Local Laws/Planning Compliance officer since August 2017, he had driven past and stopped opposite the property on a number of occasions but had never seen any dogs kept in outdoor yards which were visible from the street.  He advised that he did not inspect all areas of the property when he came onto the site in May 2019 since Mr Kelly explained that the use was not operating at that time. 
40	This evidence directly accords with the advice from the applicant that he ceased keeping dogs at the property from January 2018.
41	Mr Price also clarified that his searches through Council records had not disclosed any relevant certificates, registration or file notes indicating Council staff attending the premises.  
42	Drawing together all the evidence before me, it is clear that the land has been used in the past for animal keeping (greyhounds).  The question is whether the applicants have made out a case for continuous use for this purpose for the 15 year period before applying for the Certificate of Compliance in 2020.  
43	While the applicants have provided the kind of documentation that would normally form part of a claim for existing use rights for this type of land use, I agree with Council that there is insufficient evidence of the use operating continuously during this period.  
44	At best, there is evidence of the use having operated during discrete points in time, but there are still substantial gaps in both the relevant overall timeframe and detail to demonstrate 15 years continuous use to the standard required by Clause 63.11 of the planning scheme (even if potential cessation was not an issue).  
45	There are many years for which there are no detailed records that the use of animal keeping was actually operating on the land.  While there is some evidence of the registration of the business and operation of the kennel in the early years, there is a vast deficiency of information indicating that dogs were actually kept at the property on a continual basis between 2005 and 2020, especially after the use changed from a business to a hobby.  
46	While there are some statutory declarations that purport to cover the relevant period, they are exceptionally general and the deponents were not called to give detailed evidence of their recollection for all years during the relevant period.
47	One notable irregularity is the statutory declaration from neighbours living opposite declaring that the use was operating until 6 March 2020 when this is in direct contradiction to the statement by Mr Kelly that he had ceased the use in January 2018.  The deponents of this declaration were not called to give tested evidence at the hearing. 
48	Given the absence of detailed, tested evidence about what is claimed by the neighbours to be a continuous use, I am only able to give very limited weight to the contents of this statutory declaration.  
49	There is also a real absence of additional supporting material or tested oral evidence that could effectively fills critical gaps.  As Mr Price explained, such additional evidence could reasonably have included:
•	regular audit reports from Greyhound Racing Victoria – in the absence of which it could not be proven that the use was operating during the relevant period even if the property/business was registered; 
•	details of the frequency and type of waste collection from the business/hobby beyond general waste collection ‘on call’; 
•	more consistent veterinary records over the relevant period;
•	detailed entries of dogs bred/kept/trained on the land during the relevant time; 
•	evidence of regular purchases of supplies such as dog food; and
•	client invoices and the like. 
50	In light of the material provided, my primary finding is that the applicants have not provided adequate evidence of existing use rights for animal keeping on a continuous basis during the relevant period.  
Effect of the use ceasing to operate in 2018
51	Beyond my primary finding that there is inadequate evidence of 15 years continuous use, the applicants also face the fundamental hurdle that, on their own word, the use of the land for animal keeping was not operating from 26 January 2018.  
52	This is consistent with the evidence of Mr Price that he had inspected the property from the roadside on numerous occasions since his employment in late 2017 and had never observed dogs at the property. 
53	I have no reason to doubt Mr Kelly’s stated intention that he ceased the use as ‘a law abiding citizen’ — seeking to avoid non-compliance with the planning scheme.  I also have no reason to doubt that he intended to try to locate additional material to support his claim of existing use rights.  
54	If the end date is 20 May 2020, there has been a period of nearly 52 months when the use was not operating at all, let alone operating continuously as would be required.  This is a very substantial period of time, notwithstanding the applicants’ personal circumstances. 
55	Alternatively, even if the applicants were seeking to rely on 15 years continuous use demonstrated at an earlier point in time — such as reflected in the letter from Council to the applicants in 2001 when they purchased the property — the rights would have been lost by a cessation of the use for over two years until now.  I note that this was not claimed in the current proceeding but I address it for completeness. 
56	Clause 63.06 provides for the expiration of existing use rights as follows: 
An existing use right expires if either:
•	The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
•	In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession.
57	I acknowledge that there are Tribunal and Court cases that establish that a use may not have “ceased” or been abandoned if the relevant activities had stopped for some time.  For instance, there may be a sufficient intention to continue operating the use during that time and the use may instead be characterised as interrupted, such as where seasonality or infrastructure upgrades were involved.  However, a mere intention to resume a use after it stops has been held to be insufficient.  
58	This issue was also analysed by the Tribunal in Octopus Media Pty Ltd v Melbourne CC in the following terms: 
[100]	 However, in APN Outdoor, Cavanough J referenced the decision in KT Corporation Pty Ltd v Queensland Government Department of Main Roads (a case also separately relied upon by Octopus Media) where a use was held not to have ceased despite legislation providing for cessation within 12 months, because of evidence with an ongoing dispute with the Council that had for a time prevented the use from continuing. The decision in KT Corporation is not directly compatible with the situation here. First, the relevant legislation related to the lapsing of a permit after 12 months if the use established pursuant to the permit had ceased (and thus related more to the purpose of the permitted use), rather than a use more generally having stopped for a continuous period of two years under s 6(4) of the P&E Act in Victoria. Secondly, as will be seen, the evidence here does not point to there being any third-party dispute that wholly prevented the use from continuing. 
[101]	Interestingly, also, when one has regard to the actual decision in KT Corporation, the court made it clear that a person denying that a use had ceased cannot simply rely upon a mere intention to preserve existing rights, and nothing more. The court referred to other cases that indicated that an existing use will not continue indefinitely despite the absence of actual use merely because an owner has an intention to carry on the existing use or to resume it at some time in the future. A delaying factor such as a financial problem or litigation does not necessarily continue the existing use, and the claimed cessation must be looked at objectively. The question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. Equally, however, the legal character of what is taking place on the land may be affected by the intention of the owner or occupier, or matters such as the continued presence on the premises of equipment or fittings appropriate to the existing use. These are relevant but not decisive factors.
59	In this case, the only material before me indicates that Mr Kelly ceased the use entirely in 2018 and had no intention to recommence the use unless and until existing use rights were confirmed by Council or VCAT, which ultimately has not come to pass.  
60	I am sympathetic to Mr Kelly’s situation in that he intended to abide by the law.  
61	At the same time, I also note that there was no request or even insinuation by Council for him to cease the use until he sought to demonstrate existing use rights.  
62	It would have been entirely conceivable for the use to scale back but still continue operating, or for a reasonable amount of time (less than 2 years) to be taken to demonstrate a claimed entitlement.  However, I find that the four year (approximate) cessation with no further action taken by Mr Kelly during that time was not consistent with a proactive approach to preserve any rights that he might have claimed.  
63	In some ways, this is a cautionary tale of the need for balance between adherence to the provisions of the planning scheme while preserving any rights that are thought to exist.  
64	It is conceivable in some instances that COVID-19 may also have affected certain uses which should not be regarded to have “ceased” altogether.  However, no such claim was made in the current proceeding as a reason for this use stopping. 
Conclusion
65	Regrettably for the applicants, on any interpretation, they have not been able to provide sufficient evidence of the existing use right claimed immediately before May 2005 – May 2020 under Clause 63.11 of the planning scheme since:
•	primarily, there is a lack of sufficient evidence encompassing the 15 year period immediately before 20 May 2005 – 20 May 2020, even if the period 2018 – 2020 was included; 
•	second, even if the period is effectively 18 October 2003 – 18 October 2018 as claimed by the applicants (which I have discounted above), there is insufficient evidence to establish existing use rights exist between that time; and 
•	in addition, even if the use was confirmed between 2003 – 2018, there has been non-continuous use for 2 or more years since that time that would mean the rights were lost by operation of the PE Act and the planning scheme.  
66	This all leads to a conclusion that, whichever pathway is taken, no current existing use rights are demonstrated. 
67	For the reasons given above, the decision of the responsible authority is upheld.  No Certificate of Compliance is issued in respect of the existing use of the land for animal keeping.
68	I note that the use of the land for animal keeping (more than two animals) is a discretionary use subject to a planning permit.  If the applicants wish to restart this use on the land, this option may be available to them. 

Dalia Cook
Member