This decision of the Victorian Civil and Administrative Tribunal (“VCAT”) involved a proposal for two convenience food restaurants on within a Green Wedge Zone to the east of Melbourne. It is an interesting decision because it involved consideration of the extinguishment of existing use rights within a Green Wedge Zone.

• Caltex Australia Petroleum (the applicant) wanted to develop two convenience restaurants on their land in Melbourne's east. The land had originally been used by the applicants as a service station, but had not been used since August 2006.

• The land was within a Green wedge zone, which meant that in order to obtain a planning permit Caltex were required to show that the use of the land as a service station had created “existing use rights” on the site.

• The responsible authority found that the “existing use rights” had been extinguished by virtue Clause 63.06 of the Kingston planning scheme, which states rights will be extinguished where: “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”

• Therefore the argument before VCAT revolved around when this two year period commenced, and whether the use was resumed simply by the application for a planning permit.

VCAT decided to uphold the decision of the responsible authority decision that the existing use rights had expired. The application for a planning permit did not amount to Caltex resuming its of the existing use.

• The full decision is available on Austlii

• Defenders of the South East Green Wedge