No. 5941 of 1997
- The proceeding before the court is an appeal pursuant to s.52 of the Administrative Appeals Tribunal Act 1984, on a question of law, from a decision of the Administrative Appeals Tribunal in its Planning Division, delivered on 11 June 1997
in proceedings before the Tribunal in which the present appellant was the applicant and the respondent was the other party.
- Before the Tribunal, the appellant had made an application, pursuant to s.87(1) of the Planning and Environment Act 1987, for the Tribunal to amend a permit, "MELB2758" dated 24 March 1977 and issued in accordance with a determination of the Town Planning
Appeals Tribunal of 10 March 1977 which permit provided, as is relevant, that -
"Subject to the conditions (if any) set out hereunder the following is hereby permitted
58 Dudley Street, West Melbourne, to make alterations and additions to the existing building in accordance with the attached endorsed
plan, and use it for the purpose of a massage parlour.
CONDITIONS
1. ...
2. ...
3. ...
4. The subject premises shall not be used for the purpose of a massage parlour between the hours of 12 midnight and 9.00 a.m."
- By its application lodged with the Tribunal to amend the permit, the appellant identified itself as the occupier of the premises.
The appellant's application was that the permit be amended by the deletion of condition 4.
- In making its application to the Tribunal for it to amend the permit by deleting condition 4 as contained in it, the appellant in
particular relied on the provisions of s.87(1)(d) of the Planning and Environment Act 1987. Those provisions provided -
"1. The Administrative Appeals Tribunal may cancel or amend
any permit if it considers that there has been -
(d) any material change in circumstances which has
occurred since the grant of the permit."
- At the time of the issue of the permit "massage parlour" was defined in the Melbourne Metropolitan Planning Scheme as -
"Means any building or part of any building used for the purpose of body massage by a person other than a person registered under
the Physiotherapists Act 1978 whether or not it is used solely for the purpose."
- On 4 July 1984, Amendment 303 to the Melbourne Metropolitan Planning Scheme was gazetted. That amendment deleted the definition
of 'massage parlour' from the Scheme and it introduced the definition of 'brothel'. Brothel was defined as
"Any land to which people of both sexes or of either sex resort for the purpose of prostitution."
- On 5 September 1984, the zoning of the subject land was altered to Central Melbourne - Residential and Services zone (R9). In that
zone, use of land as a brothel, by section 3, was and is a prohibited use.
- On 14 November 1984, Amendment 326 to the Melbourne Metropolitan Planning Scheme was gazetted which introduced a new sub-clause
as follows:
"25(a)(A) Notwithstanding anything to the contrary in this ordinance land (other than land situated at No. 3 Drummond Street Carlton
and No. 148 Sydney Road Brunswick) which was on the second day of July 1984 lawfully used for the purpose of Massage Parlour pursuant
to a permit under the Planning Scheme may, subject to compliance with all the conditions in such permit (other than any condition
or conditions which would have the effect of preventing use pursuant to the permit by any person other than a specified person or
for the other purpose of prostitution) be used for the purpose of a brothel."
- In consequence of that amendment to the Melbourne Metropolitan Planning Scheme the subject building, which was on 2 July 1984 lawfully
used for the purpose of a massage parlour pursuant to the subject permit, was lawfully able to be used for the purpose of a brothel.
The use of the building for the purpose of a brothel was a non-conforming use of the building under that Planning Scheme.
- Having regard to the use of the land as provided by the initial permit, Amendments 303 and 326 to the Melbourne Metropolitan Planning
Scheme as referred to and the re-zoning of the land on 5 September 1984 as also referred to, on the approval of the Melbourne Planning
Scheme on 16 February 1988 clauses 15-3 and 15-4 had and have application to the use of the land.
- Clauses 15-3 and 15-4 of the Melbourne Planning Scheme provide, as is relevant -
"15-3 Section 3 uses.
15-3.1 Continuations and extensions
A use in section 3 of a zone that was lawfully carried
out immediately before the approval date may
continue provided: * The amenity of the area is not damaged or further damaged by a change in the activities. * Any condition or
restriction on the use continues to be met. * A building or works is not constructed without a permit. * ... * Before deciding on
an application the responsible authority must consider whether the use will impair the orderly development of the zone or damage
the amenity of the neighbourhood. * ... * ... " "15-3.3 Alternative use
If land is used for a section 3 use, a permit may be granted to use the land for an alternative section 3 use. The responsible authority
must be satisfied that the alternative use will be less detrimental to the amenity of the neighbourhood.
The alternative use is considered to be a continuation of the earlier use." "15-4 Massage parlour - Brothel.
Land used for a massage parlour under a permit on 2 July 1984 may after that date be used for a brothel.
This does not apply to land at No. 3 Drummond Street Carlton and No. 148 Sydney Road Brunswick.
The conditions of the permit must continue to be met except any condition preventing operation other than by a specific person or
preventing prostitution."
- As part of the history of the subject land and as recited by the Tribunal in its written determination, "by determination of the
Tribunal dated 11th of August 1993, Planning Permit MELB2758 ..., following a hearing relating to enforcement action concerning illegal
works at the rear of the brothel was amended. The determination of the Tribunal reflected a 'consent order' by the parties and five
additional conditions were included on the permit. Those additional conditions imposed new restrictions upon the use of the land.
These were not in conflict with the existing conditions on the permit." Those additional conditions were numbered 5, 6, 7, 8 and
9. In making its application to the Tribunal for deletion of condition 4, the appellant further sought as a consequential matter
that on that application being granted those additional five conditions be re-number 4, 5, 6, 7 and 8 according.
- In substance, the application to the Tribunal to delete condition 4 from the permit was to remove the restriction which prevented
the premises being used as a brothel between 12 midnight and 9.00 a.m. each day in order that the premises may be used as a brothel
24 hours a day. In its written determination the Tribunal found that in relation to the grounds relied on by the appellant pursuant
to s.87(1) "that there has been a material change of circumstances since the subject permit was granted." The Tribunal further expressed
the view, "that if [the] discretion were available to amend the permit we believe that it would be appropriate in planning terms
to do so." In its written determination it further stated "that if we had the discretion to do so we would have extended the hours
as in our view that was the correct planning solution in the circumstances."
- However, by its written determination the Tribunal held that s.87 could not be used to amend the permit to allow the extension of
hours for the existing brothel. In reaching that conclusion, the Tribunal expressed the view that there was "an indirect fetter"
to the exercise of its discretion in relation to amendment of non-conforming use permits which was imposed by the structure of the
legislative controls.
- In its written determination the Tribunal stated -
"In summary, it is because the power found in s.87 pertains to the amendment of existing permits, rather than any power to grant new
permits, that it is necessary in our view to interpret the powers found therein having regard to the other provisions of the legislation,
even though the particular legislative arrangements which have been put in place have resulted in planning scheme provisions being
incorporated as subordinate legislation.
For the reasons advanced ..., we are of the view that to utilise section 87 in the manner which is sought would lead to a breach of
other components of the planning legislation and in particular the requirements of clause 13-3.1 and 15-4 of the planning scheme.
It is axiomatic that the Tribunal should not make a determination which causes or would lead to an unlawful planning situation.
We believe that therefore the Tribunal is barred from exercising its discretion under section 87."
- In reaching that conclusion the Tribunal stated that it was
"Of the view that in the case of clause 15-3.1 the conditions or restrictions on the use which 'must continue to be met' are those
which applied at the approval date of the Amendment 150 part 12 being 5th September 1984, when the use of the land for a brothel became prohibited in the new zone. We further advise that in the
case of clause 15-4, the conditions of the permit which must continue to be met, are those which applied to the permit on 2nd July
1984. This was the date of the approval of amendment 303 which enabled lawfully existing massage parlours to operate as brothels."
- It is against the decision of the Tribunal that the power vested in it pursuant to s.87(1) of the Planning and Environment Act 1987 did not include the power to amend the permit by which the occupier enjoyed a non-conforming use right of the land under the Melbourne
Planning Scheme that the appellant appeals to this court on a question of law. It was submitted on behalf of the appellant that
pursuant to s.87(1) of the Planning and Environment Act 1987 the Tribunal did have power to amend the subject permit by deleting condition 4 therefrom. It was submitted that the Tribunal, having
determined that if there existed in it the discretion to so amend the permit, it would be appropriate to do so as "that was the correct
planning solution in the circumstances", this court should direct the Tribunal to direct the responsible authority to amend the permit
by deleting condition 4 therefrom and re-numbering the further conditions sequentially. Counsel for the respondent, who appeared
to uphold the decision of the Tribunal, nevertheless accepted that if it was held on this appeal that there existed in the circumstances
power in the Tribunal under s.87(1) of the Act to amend the subject permit and that the Tribunal was in error in deciding otherwise, then in the circumstances of this
case the court should direct that the permit to be amended. There was no issue raised on this appeal as to the conclusions of the
Tribunal on what may be described as planning matters, nor directly matters taken into account by the Tribunal in reaching the conclusion
that if there existed power in it to direct that the permit be amended by deleting condition 4 it would be appropriate in planning
terms to do so.
- The principal argument pursued on behalf of the appellant on this appeal was that the Tribunal was in error in interpreting the
provisions of s.87(1) of the Act so as to confine or limit the discretionary power of the Tribunal to amend a permit by having regard to the provisions
of the Melbourne Planning Scheme. It was submitted that the clear unambiguous language of s.87(1) of the Act vested in the Tribunal the discretionary power to "amend any permit" on it being satisfied of the existence of one or
more of the matters specified in sub-ss.(a)-(f) and that to interpret that section such as to conclude that the Tribunal had no power
to amend the subject permit in the circumstances of this case, that conclusion constituted an error of law.
- The second principal argument addressed on behalf of the appellant was that the Tribunal was also in error in interpreting the provision
of clauses 15-3.1 and 15-4 of the Planning Scheme which respectively provided in part that "a use in Section 3 of a zone that was lawfully carried out immediately before the approval date may continue provided: ... any condition or restriction
on the use continue to be met" and "land used for a massage parlour under a permit on 2 July 1984 may after that date be used for
a brothel ... the conditions of the permit must continue to be met". It was submitted that the Tribunal was in error in determining
that the conditions or restrictions required to be met in respect of section 3 uses pursuant to clause 15-3.1 were those as applying to the permit on 5 September 1984 and that the conditions that must be met
with respect to a massage parlour-brothel pursuant to clause 15-4 were those at 2 July 1984. It was submitted that properly interpreted,
the conditions to be met were those provided by the permit from time to time. It was put that the Tribunal was in error in interpreting
the discretionary power vested in it pursuant to s.87(1) of the Act to amend a permit by having reference to the terms of the Planning Scheme, and that such error was in effect compounded
because the amendment sought to the subject permit if permitted would not lead to a breach of or conflict with those provisions of
clauses 15-3.1 and 15-4 of the planning scheme, the effect which of was to require conditions and restrictions fixed in time to continue
to be met.
- It is provided by s.87(3) of the Act that
"The Administrative Appeals Tribunal may cancel or amend a permit at the request of -
(a) the responsible authority; or
(b) any person under section 89; or
(c) a referral authority; or
(d) the owner or occupier of the land concerned."
- A person, who, pursuant to s.89 of the Act, may apply to the Tribunal to cancel or amend a permit is a person who objected to or would have been entitled to object
to the issue of the permit. That person's entitlement to ask the Tribunal to cancel or amend a permit is further limited by the
provisions of s.89.
- Although counsel who appeared for the respondent accepted that the discretionary power vested in the Tribunal to cancel or amend
any permit on the Tribunal being satisfied as to the existence of one or more of the matters identified in sub-ss.(a)-(f) was not
qualified or limited by the language of s.87(1), it was submitted that the power vested in the Tribunal, by that section, to amend a permit should be qualified or read down as to
preclude the Tribunal having power to amend a permit by which an owner or occupier of land or a building enjoyed non-conforming use
rights in respect of the land or building and was able to use it for a purpose that was otherwise prohibited by the Planning Scheme.
- Specifically it was submitted that the power to amend a permit under s.87(1) of the Act should be interpreted as a power to amend an existing permit to achieve the intended result where the applicant, pursuant
to the provisions of the Planning Scheme, could apply to the Responsible Authority for the grant of a permit in the same terms as
the amended permit would provide. Put further, it was submitted that the power vested in the Tribunal pursuant to s.87(1) of the Act should be interpreted as not extending to or providing power to amend a permit being a non-conforming use permit under
the Planning Scheme which permitted a use of land which was otherwise prohibited under the terms of the Scheme in consequence of
being a section 3 use under clauses of the Planning Scheme. It was submitted that if the power vested in the Tribunal under s.87(1) of the Act to amend a permit was such as to vest in the Tribunal power to amend a permit which permitted a non-conforming use of
land which was otherwise prohibited by the Planning Scheme, the existence of that power and its exercise could defeat the Planning
Scheme because what was prohibited by the terms of the Planning Scheme could by amendment of a permit by which a non-conforming use
right was enjoyed, be permitted. It was submitted that such could not have been the intention of Parliament to provide such power
to the Tribunal under s.87(1) and consequently it was necessary to read down and limit the general words of that section when interpreting the power vested in
the Tribunal to "amend any permit".
- In making those submissions counsel for the respondent accepted in argument that as a consequence if a person enjoyed non-conforming
use rights in respect of land pursuant to a permit where otherwise under the Planning Scheme the use would be prohibited and that
a relevant permit contained a condition or restriction which was antiquated in its operation and no longer served a real purpose,
the Tribunal would have no power under s.87(1) of the Act to amend the permit by deleting that condition.
- It was accepted in argument by counsel for the respondent that it was not the language of s.87(1) of the Act that provides the source for reading down or limiting the power of the Tribunal to amend a permit as was submitted on
behalf of the respondent. Rather, it was submitted that if there existed a general power in the Tribunal to amend "any permit" and
it was not limited in the manner contended for on behalf of the respondent it would enable a person who enjoyed non-conforming rights
to use land by the terms of a permit, where such use would otherwise be prohibited by the Planning Scheme, to obtain by amendment
what could not otherwise be obtained under the Scheme. It was submitted that that would have the effect in substance of granting
a new permit rather than amending an existing permit. Further, it was contended on behalf of the respondent that if the power vested
in the Tribunal to amend a permit was not limited in the manner contended for on behalf of the respondent that would result in the
Tribunal having power on the application of a Responsible Authority to amend a permit by which a person enjoyed a non-conforming
use rights in respect of land which would be otherwise prohibited under the Planning Scheme, to constrain or limit the non-conforming
use otherwise enjoyed under the permit.
- These submissions were directed specifically to the power of the Tribunal to amend a permit and were not concerned with the discretionary
exercise of the power vested in the Tribunal on it being satisfied that there existed one or more of the factual matters identified
in s.87(1)(a)-(f).
- Central to these submissions was the contention made on behalf of the respondent that the provisions of s.87(1) of the Act should be interpreted so as to be read that the power vested in the Tribunal to amend a permit did not include a power
which may on its exercise result in the permit as amended being in conflict with provisions of the Planning Scheme.
- A Planning Scheme is a form of delegated legislation. Planning Schemes and amendments to such Schemes, on being prepared and then
approved by the Minister pursuant to Parts 2 and 3 of the Planning and Environment Act 1987, become operative and in force as provided in such parts. The relevant Planning Scheme, the Melbourne Planning Scheme, was made by
the Minister on 16 February 1988. On this appeal it is not necessary to deal with the procedure that was followed. It is sufficient
to refer to s.11(1) and (3) of the Planning and Environment (Amendment) Act 1988, which provided -
"11. (1) Despite anything to the contrary in the Principal Act, any planning scheme prepared, adopted or approved or purporting to
have been prepared, adopted or approved by the Minister on 16 February 1988 must be taken to have been duly prepared, adopted and
approved in accordance with all of the requirements of the Principal Act and the regulations made under the Principal Act and to
be valid and effective in all respects.
(2) ...
(3) A planning scheme referred to in sub-section (1) must be taken to have come into operation at the beginning of 16 February
1988."
Section 6(1) of the Planning and Environment Act 1987 provides in part -
"(1) A planning scheme for an area -
(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme;"
"(2) Without limiting sub-s.(1), a planning scheme may -
(b) regulate or prohibit the use or development of any land".
"(3) Subject to sub-sections (4) and 4(A), nothing in any planning scheme or amendment shall -
(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purpose for which it was being
lawfully used before the coming into operation of the scheme or amendment (as the case may be)" or
(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully
being used immediately before that coming into operation; or
(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully
being used immediately before that coming into operation; or
(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before
that coming into operation; or
(e) require the removal or alteration of any lawfully constructed buildings or works."
- As referred to previously, it was pursuant to clause 15-3.1 and clause 15-4 of the scheme that respectively protected the use in
s.3 of the relevant zone that was lawfully carried on immediately before the approval date and which permitted the use of land used for
a massage parlour under a permit on 2 July 1984 to be used as a brothel after that date.
- In making the submissions on behalf of the respondent, as I have identified, counsel for the respondent put to the court in argument
that it was not being contended on behalf of the respondent that the Planning Scheme should prevail over the primary legislation,
the Planning and Environment Act 1987.
- On behalf of the appellant it was submitted that if the power vested in the Tribunal by the clear words of s.87(1) of the Act, giving it power to amend "any permit" were to be read down by reference to the provisions of the Planning Scheme, that
would permit the words of the statute, the primary instrument, to be interpreted by reference to the words of a secondary or delegated
legislative instrument, in this case the Planning Scheme. It was submitted that to do that would be contrary to well established
authority concerning the interpretation of statutes. In Accident Towing and Advisory Committee v. Combined Motor Industries Pty Ltd [1987] VicRp 48; (1987) V.R. 529, Southwell, J at 577 citing authority stated the propositions that "regulations cannot be used so as to alter the meaning of a statute"
and; "that subordinate legislation cannot widen the power granted by statute." In Webster v. McIntosh [1980] FCA 128; (1980) 32 A.L.R. 603 at 606 Brennan, J stated -
"The intention of parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate
has been exercised."
- However, on behalf of the respondent it was argued that it was not sought to read down or qualify the wide words of s.87(1) of the Act as to the power vested in the Tribunal to "amend any permit" by reference to words of the Planning Scheme but rather by
reference to the Planning Scheme as part of the legislative scheme as a whole which has as its source of authority the Planning and Environment Act 1987. It is under that Act and as previously referred to that by s.6(2)(b) a planning Scheme may regulate or prohibit the use or development of any land. Further, by the provisions of s.6(3) non-conforming use rights are protected from the operation of a Planning Scheme or an amendment made thereto. Although contending
that it was not sought on behalf of the respondent to qualify the words of s.87(1) of the Act by words of the secondary or delegated legislation, the Planning Scheme, I am of the view that in reality that was what
was sought to be done. It was specifically by reference to clauses 15-3.1 and 15-4 of the Scheme that resort was had to found the
proposition that it was necessary to qualify or limit the power of the Tribunal to , "amend any permit" as contained in s.87(1) of the Act, in the manner as contended for. It was on that basis that it was contended that unless the power vested in the Tribunal
was read down or limited, on it being exercised it could result in an amended permit being in conflict with the Scheme and its operation.
- There exists the "principle of construction that statutory provisions designed to protect and preserve existing rights should be
as liberally construed as the language in its context allows" - Dorrestijn v. S.A. Planning Commission [1984] HCA 76; (1984) 56 A.L.R. 295 at 300; see also Parramatta City Council v. Brickworks Limited [1972] HCA 21; (1972) 128 C.L.R. 1 at 25; Woollahra Municipal Council v. Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 C.L.R. 138 at 144.
- The existing right in the appellant to use the subject land is to use it for the purpose of a brothel pursuant to the permit the
subject of these proceedings and in consequence of Amendment 326 and clause 15-4 of the Planning Scheme. The non-conforming use
rights as provided by the permit is the use of the land as a brothel and the conditions and restrictions in the permit do not define
that use - Shire of Perth v. O'Keefe [1964] HCA 37; (1963) 110 C.L.R. 529 at 535. To interpret the provisions of s.87(1) of the Act as to the discretionary power vested in the Tribunal to "amend any permit" as it appears on its face and to include the
power to amend a permit by which an owner or occupier of land enjoys non-conforming use rights where such use is otherwise a prohibited
use within the planning scheme in my opinion does not offend the principle of statutory interpretation referred to in Dorrestijn. The non-conforming use, in this case, that of a brothel, would still remain the same in the event of a condition of the permit
being altered by amendment.
- In my view, the Tribunal was in error in interpreting s.87(1) of the Act and in particular, the extent of the discretionary power vested in the Tribunal by that section to "amend any permit"
by having reference to the provisions of the Melbourne Planning Scheme and in particular, clauses 15-3.1 and 15-4 of it. By interpreting
the provisions of the statute by reference to the Planning Scheme, the Tribunal interpreted the meaning of the words by which it
was vested with the discretionary power to amend any permit, "by reference to the terms in which a delegated power to legislate had
been exercised". By adopting this process the Tribunal was in error. Parliament enacted by that section that the Tribunal should
have the discretionary power to "amend any permit". By its clear terms there is to be found in that section no apparent intention
of Parliament to exclude from that power, the power to amend a permit by which an owner or occupier of land enjoys non-conforming
use rights in circumstances where the use is a prohibited use being a section 3 use under the Planning Scheme. In my opinion, there is not to be found in s.6(3) or any other provision of the Planning and Environment Act 1987 any basis to conclude that it was the intention of Parliament that the discretionary power vested in the Tribunal by a s.87(1) of the Act, to amend a permit, should be limited in the manner as contended for by the respondent on this appeal.
- In my view, the use of the word "any" in the section directly refutes the submissions made on behalf of the respondent that there
should be excluded from permits which are able to be amended by the Tribunal pursuant to the power vested in it under s.87(1) of the Act a particular class or type of permits such as contended for on behalf of the respondent. If it had been the intent of
Parliament to limit the discretionary power of a Tribunal and to exclude from that power permits by which an owner or occupier of
land enjoyed non-conforming use rights where the use is otherwise a prohibited use under a planning scheme, one would have expected
that such intention would have manifested itself in the Act. In my view, no such legislative intention appears from the Act.
- The language of s.87(1) of the Act which provides that the Tribunal "may amend any permit", if it considers that one or more of the matters identified in
sub-ss.(a)-(f) exist is clear. In my view, the section does not allow of it being interpreted to exclude from the discretionary
power to amend a permit a class or type of permits not identified by that statutory provision or the Act.
- As part of the determination of the Tribunal that it did not have the discretionary power under s.87(1) of the Act to amend the subject permit it expressed the view, as I have previously referred to, that under clause 15-3.1 of the Planning
Scheme the conditions and restrictions on the use of the land which must continue to be met were those when the use of the land as
a brothel became a prohibited use in the new zone on 5 September 1984 and that in the case of the clause 15-4 the conditions of the
permit which must continue to be met were those applicable as at 2 July 1984, the date of the approval of amendment 303. These conclusions
were part of the reasoning of the Tribunal which led it to conclude that it did not have the discretionary power under s.87(1) of the Act to amend the subject permit by deleting condition 4.
- In my view, reliance on those conclusions by the Tribunal as part of its reasoning demonstrates error in the approach of the Tribunal
in undertaking the task of interpreting the extent of the power to amend a permit vested in it under s.87(1) of the Act by having regard to provisions of the Planning Scheme which is a delegated or secondary legislative instrument.
- The consideration as to whether restrictions or conditions as provided in the Planning Scheme which are to continue or must continue
to be met are fixed in time in the past or are ambulatory in nature and must relate to conditions as prevailing from time to time
must in my view lead to undertaking a reasoning process, part of which is not permitted, that being the reference to the delegated
legislative instrument in order to interpret a provision of the statute. Such consideration leads to the error that if it is determined
that such restrictions and conditions which are required to continue to be met were fixed in time in the past and that conclusion
is used as a relevant consideration when interpreting the section then it is likely to be concluded that s.87(1) does not vest in the Tribunal power to amend a permit the subject of clauses 15-3.1 and 15-4 by deleting a condition, for if it did
the result would bring the permit as amended in conflict with the requirement under the Scheme that the condition or restriction
in the permit, which had been deleted by amendment, must continue to be met. Again, on the other side by this reasoning process,
if it was determined as a first step that a requirement under the Scheme that a condition or restriction in a permit which was required
to continue to be met was ambulatory in nature and that was had regard to in order to interpret the section that process may more
readily lead to the final conclusion that the power to amend a permit contained within s.87(1) of the Act included those the subject of clauses 15-3.1 and 15-4 of the scheme for if such amendment was made and a condition initially
provided by the permit was deleted there would be no conflict with the requirement of clauses 15-3.1 and 15-4 of the Scheme.
- The task undertaken by the Tribunal to interpret the power vested in it to amend a permit as contained in s.87(1) of the Act, in my view, ought to have been undertaken without reference to the provisions of the Planning Scheme. In my view, s.87(1) of the Act properly interpreted, does vest in the Tribunal a discretionary power to amend a permit to which clauses 15-3.1 and 15-4
of the Scheme apply. In the event of such power being exercised by deleting or adding a condition to the permit, the conditions
of the permit that are required by clauses 15-3.1 and 15-4 of the Scheme to continue to be met are those existing and affected by
the amendment. If, however, the conditions contained in a permit continue to be those as contained in it from the time of the issue
of the same then the conditions that are required to continue to be met are those provided by the permit when issued.
- In my view, the Tribunal was in error in interpreting s.87(1) of the Act by taking into account its view that the conditions on a permit the subject of clauses 15-3.1 and 15-4 of the Scheme which
are required to continue to be met were those fixed in the past and at times identified by them. By doing so the Tribunal interpreted
the provisions of s.87(1) by direct reference to the delegated legislative instruments and interpreted the former to avoid a resultant conflict with the latter.
- For the reasons expressed I have concluded that there was error of law in the Tribunal in determining that it did not have power
under s.87(1) of the Act to amend the permit, the subject of these proceedings, by deleting condition 4 of the same. Section 87(1) of the Act properly interpreted does vest in the Tribunal a discretionary power to amend the subject permit by which the appellant
enjoys the right to use the land as a brothel notwithstanding that that use is a prohibited use under section 3 of the relevant zone in the Planning Scheme. That power includes the power to amend the permit by directing that condition 4 be
deleted. Having regard to the fact that on the hearing of this appeal no issue was raised as to the conclusions reached by the Tribunal
on planning matters and that if there was a discretion available to it, it would have amended the permit as it believed that it would
be appropriate in planning terms to do so, I am of the view that it is appropriate to order and direct that the Tribunal direct the
Responsible Authority to amend the subject permit by deleting condition 4 and re-numbering the subsequent conditions sequentially.
I propose to make orders in accordance with the following minutes -
1. That the appeal be allowed.
2. That the determination of the Tribunal be set aside.
3. That the Tribunal direct the responsible authority to amend permit "MELB2758" by deleting condition 4 thereof and re-numbering
the subsequent conditions sequentially.
4. That the respondent pay the appellant's costs of the appeal as limited by s.71 of the Planning Appeals Act 1980.
5. That an indemnity certificate is granted to the respondent under s.13 of the Appeal Costs Act 1964.
---
CERTIFICATE
I certify that this and the 16 previous pages are a true copy of the reasons for judgment of McDonald, J. of the Supreme Court of
Victoria delivered on 30 July 1998.
Dated this thirtieth day of July 1998.
........................................
Associate
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSC/1998/7.html
