By Casey Neill
Kelley-Page Kelly and her husband Jamie bought a 12-acre property in Victoria Road, Gruyere, in 2012.
Ms Kelly told the Tuesday 28 August Yarra Ranges Council meeting that the rural retreat had two dwellings, “perfect for the future of our family”.
“We were thrilled at the prospect of my parents to be able to retire with us in the privacy of their own cottage, but close enough to enjoy our four children, farm animals and lovely environment,” she said.
“The previous owner Gale Thornton was kind enough to supply us with the relevant stamped council authorised plans for an extension to one of the dwellings carried out in 1996.
“We also received various receipts and a building permit for the above-mentioned works.
“On that permit it clearly states that the property has two dwellings.
“To us as purchasers, we didn’t need to question any of the legalities regarding the two dwellings as it was evident that the council were already aware.”
But in December 2016, the Kellys applied for a planning permit for renovations and found out the council had no record of two houses on the land.
The land was zoned green wedge in 2002, and this allows only one dwelling to be built on the property after that date.
They had to apply for a certificate of compliance and prove the house had been there beforehand.
Council officers recommended refusing the permit, citing “lack of evidence for continuous use across 15 years”.
“The evidence provided by the applicant is heavily reliant on the statutory declarations to bridge the time period back to 13 December 2001,” the report said.
“During this time period the applicant has not been able to provide any hard evidence that specifically refers to the second dwelling in dispute.
“There is essentially no strong evidence which demonstrates continuous use of the second dwelling during the relevant time period.”
Ms Kelly said she submitted statutory declarations from previous occupants, electricity bills showing separate meters at each dwelling, a building permit nominating two dwellings on the site plan, receipts and invoices from the previous owner for works to the dwellings and old photos.
“The old owner gave me copies of receipts from septic cleanouts and termite reports,” she said.
“We had so much documentation.”
Cr Fiona McAllister agreed and successfully moved that the council instead approve the permit.
“We have clear evidence in front of us tonight that it was built as a dwelling and exists as a dwelling,” she said.
“We need to be very confident before we take away someone’s private property rights.”
She said common sense and the evidence should prevail.
“They sought to do the right thing and have ended up caught up in an incredibly difficult and stressful situation,” she said.
Cr Terry Avery said he visited the property and the homes had clearly been there – and used – for a long time.
“Are we trying to retrospectively make them comply to something that when it was built, was non-existent?” he asked.
