Anteden Pty Ltd v Glen Eira City Council

Anteden Pty Ltd, the appellant, brought an appeal against the decision of the Victorian Civil and Administrative Tribunal (VCAT), which had determined that the appellant was not lawfully using its premises as a sexually explicit entertainment venue. The respondent, Glen Eira City Council, had sought an enforcement order to prohibit the use of the premises for such purposes. The appellant had been using the premises for such activities since 1998, having obtained a planning permit in 1984 for the use of the premises as a cabaret. The dispute centred on whether the appellant's use of the premises was lawfully protected as an existing use under the Planning and Environment Act 1987 and Clause 63 of the Glen Eira Planning Scheme, which came into effect in 1999.

The primary legal issue before the court was whether the Tribunal was correct in its interpretation of the meaning of “cabaret” when determining the nature of the existing use. Specifically, the court needed to decide whether the Tribunal should have considered the meaning of “cabaret” derived from the Melbourne Metropolitan Planning Scheme Ordinance in operation at the time the permit was granted, or whether it should have adopted the ordinary meaning of the word. Another issue was whether the appellant's use of the premises for sexually explicit entertainment was protected as an existing use under the Planning and Environment Act 1987 and Clause 63 of the Glen Eira Planning Scheme.

The court held that the Tribunal erred in its interpretation of the term “cabaret” by failing to consider the specific context of the Melbourne Metropolitan Planning Scheme Ordinance. The court found that the ordinary meaning of “cabaret” was not appropriate in this context and that the Tribunal should have considered the meaning of the term as it was understood under the Ordinance. Furthermore, the court found that the appellant's use of the premises for sexually explicit entertainment was not protected as an existing use under the Planning and Environment Act 1987 and Clause 63 of the Glen Eira Planning Scheme. The court emphasised that the protection of existing uses is a limited exception to the general planning scheme and that the appellant had not met the criteria for such protection.

The court allowed the appeal and remitted the matter back to VCAT for reconsideration in light of the court's findings. The court did not make any specific orders beyond the remittal of the matter for reconsideration.