When being fair does not pay off: A lesson on ‘written directions’ and existing use rights
By John Rantino & and Thy Nguyen• 09 May 2019 • 5 min read
Councils will need to take on a firm approach when preparing a 'written direction'.
In Fassoulis & ors v Mansfield Shire Council  VCAT 376, the Tribunal considered, amongst other things, whether the Council had issued a ‘clear and unambiguous written direction to cease’ for the purposes of establishing existing use rights under clause 63.11 of the Mansfield Planning Scheme (the Scheme).
The facts to this case concerned activities on land in Bonnie Doon (the Land) where the Fassoulis family, as the owner and occupier, ran an accommodation facility and associated activities. The Fassoulis family sought a review of the Council’s decision to decline to issue a certificate of compliance that existing use rights attached to the Land (Certificate Proceeding).
Based on the use described in the various affidavits and statutory declarations provided by the Fassoulis family to support their position, the Council had submitted that the use should be given no wider characterisation than ‘the use of land for trail bike riding in association with the accommodation on the land’. The Council did not deny that trail bike riding had occurred on the Land for over 15 years.
The Council submitted however that:
- the Fassoulis family could not avail themselves of clause 63.11 of the Scheme with respect to trail bike riding because, during the '15-year period' referred to in that clause, Council 'clearly and unambiguously' gave a written direction for such use 'to cease by reason of its non-compliance with the scheme'
- such 'written direction' was given by a letter from Maddocks (on behalf of the Council) to the Fassoulis family’s lawyer acting for them at the time (the Letter) which:
- was clear and unambiguous
- was in writing
- directed the use to cease
- directed the use to cease because it did not comply with the Scheme
- the Letter was dated 16 August 2017
- the '15-year period' would be 8 September 2002 – 7 September 2017 for the purposes of the Certificate Proceeding as the latter date was the date on which the Fassoulis family applied for the relevant certificate of compliance (relying on Octopus Media Pty Ltd v Melbourne City Council  VSC 429 which has been subsequently followed by the Tribunal)
- the Letter was given during this '15-year period'.
The relevant parts of the Letter provided:
The Land is located within Council’s municipal district and is subject to the Mansfield Planning Scheme (Scheme).
We are instructed that the Land is being used for the purposes of trail bike riding.
No planning permit has been granted to authorise the use of the Land for this purpose.
By letter dated 20 June 2017, you suggested that your clients may benefit from existing use rights in relation to the Land.
To date, no certificate of compliance has been issued and indeed no application for certificate of compliance been lodged with Council.
The evidentiary burden of proving an existing use right rests with the person claiming such right. As such, Council is entitled to proceed on the basis that no existing use right has accrued unless and until your clients submit evidence to the contrary.
In light of the above, Council is of the view that the Land is currently being used in breach of the Scheme.
Council requires the use of the Land for the purpose of trail bike riding to cease by 5pm on Monday 18 September 2017. Council further requires that the use of the Land for the purpose of trail bike riding not recommence unless and until the necessary planning approval has been obtained.
In the event that the use of the Land for the purpose of trail bike riding does not cease by 5pm on Monday 18 September 2017, Council may, without further notice make application to the Victorian Civil and Administrative Tribunal for an enforcement order requiring the unlawful use of the Land to cease. Further, Council may seek an order for the costs incurred in so doing.
The Tribunal did not agree with the Council’s submission on this point and stated at paragraph :
"I am unable to conclude that the letter of 16 August 2017 is a clear and unambiguous written direction to cease the use. Whilst council in the letter states, ‘we are instructed the land is being used for the purposes of trail bike riding’ and that ‘in light of the above, Council is of the view that the Land is currently being used in breach of the Scheme’. The council also states it is ‘entitled to proceed on the basis that no existing use right has accrued unless and until your clients submit evidence to the contrary’. The date indicated for the use to cease is by 18 September 2017, a month after the 16 August letter. Suggesting, in my view to the Fassoulis family that there was still time to apply for a certificate of compliance and provide evidence of existing use rights. I consider the letter is open to interpretation".
It appears that the Tribunal took the view that the letter was not ‘clear and unambiguous’ because it gave the Fassoulis family an opportunity to rectify the non-compliance – an opportunity that Fassoulis family took up by making the application for the section 97P certificate of compliance prior to the ‘deadline’ of 18 September 2017.
Council’s intention was not to give the Fassoulis family an opportunity to submit further evidence of an existing use right – that opportunity had been given in previous communications. The intent was to give the Fassoulis family a short time to get their ‘business in order’ before they had to legally cease the relevant use.
It seems that councils will need to take on a firm approach when preparing a 'written direction' to meet the criteria under clause 63.11 by simply stating when the relevant use must cease and because it did not comply with the Scheme – nothing more. Providing other information (such as the option to apply for a certificate of compliance) may potentially raise questions on whether the letter is 'clear and unambiguous'.
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