Existing Use Rights

In Yarra CC v Cassar [2011] VCAT 1759, the Tribunal has recently considered land that is subject to existing use rights and a planning permit. The Respondent operated a car repair business from inner city premises that had been used for that purpose since the late 1960’s. A permit had been issued to an earlier operator in 1974. The Respondent commenced operating the business in 1976.  In 1983 the Respondent had applied for a planning permit.

The 1983 permit contained  Condition 1 requiring endorsed plans, as well conditions commonly found in permits for industrial use including, requirement for parking bays and that the use of the site was not to injure or prejudice local amenity. No plans were ever presented to Council for endorsement.

The 1983 Permit also contained the following condition.

  • 14.No vehicles under control of the operator under this permit or his staff shall be parked in the streets nearby.
Evidence was given on behalf of the Respondent that the premises had been operated in the same manner since 1976, this included parking cars off the subject site on 2 streets. In its reasons for decision the Tribunal states:

The subject land has existing use rights. Permits were granted for the use of the land firstly in 1974 and secondly in 1983. Under the provision of the current zoning of the land as ‘mixed use’ the use being conducted on the land would require a permit, as permits were previously issued under the former provisions of the planning scheme pursuant to clause 63.05 a use in Section 2 of a zone for which an existing use right is established may continue provided ‘any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use’. [21]

The Tribunal concludes further that

Whilst the use of the land may have existing use rights attached to it to operate as a motor repair station and panel beating workshop those rights do not extend beyond the perimeter of the subject land and certainly do not extend into the street, which is under the care and control of the local Council. [23]

The Tribunal made an enforcement order in the terms of condition 14 requiring the Respondent to cease parking in nearby streets. The case is an interesting example of the parametres of existing use rights. In this instance despite the Respondent establishing existing use rights, an enforcement order was still made. Existing use rights need to be carefully assessed so as to determine the breadth of the use, they can be said to protect.

Chapel Street Signage – Limits on permit conditions

In Yum Restaurants International v Stonnington CC [2011] VCAT 1596, the Tribunal was asked to by a permit applicant to review permit conditions imposed by Stonnington City Council that would have required the removal of an existing “bucket” sign on a KFC store on Chapel Street, South Yarra.

In the proceeding before the Tribunal, Council accepted that the “bucket” sign was lawfully displayed as a consequence of planning permits granted in 1973 and 1999. However when considering  an application for “refurbishment of existing signage” Council had imposed a condition requiring the removal of the “bucket” sign. Council submitted to the Tribunal that the continuing presence of the “bucket” sign was not acceptable having regard to the context of the site and the Planning Scheme.

In its reasons for decision the Tribunal states:

In determining this application, Council’s discretion was confined to whether the replacement advertisement of the bucket sign is acceptable, not to whether the display of that sign as a whole is acceptable. In my view, Council has gone beyond the discretion afforded to it by the Planning Scheme and has used this application to achieve an outcome that is not open to it. (my emphasis)

This case confirms the principle that permit conditions cannot exceed the ambit of the discretion created by a Planning Scheme. In this case Council exceeded its discretion.