Shamsiya Hussainpoor
Belgrave resident Viet Hieu Nguyen has had his appeal refused by VCAT to establish the land he owns at 56 and 56A Courtneys Road, Belgrave for two dwellings, after it was initially refused by Yarra Ranges Council.
The applicant asserts his land was continuously used for two homes for 15 years.
Because the application was refused by Yarra Ranges Council, Mr Nguyen took the matter to the Tribunal for review of the decision.
Mr Nguyen applied for a certificate of compliance on 1 June 2023 under Section 97N of the Planning and Environment Act 1987 that his land has existing use rights.
The relevant 15 year period in this proceeding was from 1 June 2008 to 1 June 2023, meaning that Mr Nguyen used the land for two houses for 15 years before he applied to the council for a certificate of compliance.
The main argument of this case wasn’t that the former dairy shed was converted into a dwelling at some stage, but rather the issue was whether the shed has been continuously used as a second house for the decade and a half.
The Council refused to issue the certificate on various grounds, including the use of the land for more than one house being prohibited and because the evidence submitted by the applicant was insufficient to demonstrate continuous use.
Mr Nguyen had previously made an application for a certificate of compliance in relation to the land.
VCAT Member Karina Shpigel said she would affirm the council’s decision and refuse to grant a certificate of compliance.
“Having regard to the submissions of the parties and the evidence relied upon by Mr Nguyen in the proceeding, I am not persuaded that the applicant’s land has existing use rights for two housings on the basis of 15 years continuous use, I will affirm the decision of the council and direct that a certificate must not be issued,” Ms Shpigel said in the final statement.
Ms Shpigel said she’s not persuaded this application falls into the category of a ‘repeat application’ or ‘repeat appeal’, which was one of the council’s refusal grounds.
Mr Nguyen self-represented himself in the Tribunal and indicated that he understood the burden on him to satisfy the Tribunal that his land had been continuously used for the 15 years prior to the date of the application.
The VCAT member said she agrees with Mr Nguyen that the relevant standard of proof is on the balance of probabilities and not beyond a reasonable doubt, as submitted by the council.
The VCAT statement reads, “the applicant’s case is that the subject land consists of two dwellings, the existing dwelling at 56 Courtneys Road, which was constructed in or around 1975, and a second dwelling at 56A Courtneys Road, which was built from the conversion of a former dairy shed in or around 1965.”
“The applicant submits the building at 56A Courtneys Road is a self-contained dwelling that consists of two bedrooms, a kitchen, a bathroom, a toilet and wash basin, it also includes an outbuilding.”
The applicant has made recent improvements to the building, the statement reads.
Mr Nguyen called evidence from layperson, Rosemarie Kavanagh.
Ms Kavanagh’s evidence was that since she moved to Courtneys Road in 1998, she has always observed that the dwelling at 56A was occupied as a second dwelling by various people.
“However in response to my questions, she conceded that she did not remember the precise dates or years that the ‘cottage’ was occupied,” Ms Shpigel said.
“Her evidence was that the applicant had assisted her in the preparation of her witness statement and had inserted the dates into her written statement, she also did not have knowledge of many of the occupants’ surnames, these were also provided by the applicant.”
“The statement states that Ms Kavanagh could not remember the exact dates or the duration that 56A Courtneys Road was occupied by the various individuals who lived there and she conceded that she had no personal knowledge about the nature or exact duration of the tenancies. I also agree with the responsible authority that it remains unknown if there were gaps in the use.”
Ms Shpigel said the applicant did not tender any documentary evidence to support his assertion that 56A was continuously used as a second dwelling, such as copies of leases, records of rental income or rental expenses.
He also did not call any of the individuals who he submits lived at 56A Courtneys Road during the 15 year period.
Mr Nguyen placed his sole reliance on the evidence of Ms Kavanagh, which at best could be taken as indicating that at various times the house at 56A Courtneys Road appeared to be occupied as a separate dwelling.
The applicant indicated he tried to contact previous tenants, some he was able to get a hold of and some unsuccessful in reaching them, therefore, the evidence Mr Nguyen provided to VCAT was insufficient.
“For all the above reasons, Mr Nguyen has not satisfied me about continuous use of the dwelling at 56A Courtneys Road for a dwelling, as defined for planning purposes, in the relevant 15 year period,” Ms Shpigel said.
“The evidence on which he relies is insufficient and inconclusive and I will not therefore grant the certificate of compliance that he seeks – I will affirm the council’s decision.”
