Borazio v Melbourne City Council - [2010] VSC 620

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2010 00002

IN THE MATTER of an application pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal

BETWEEN

JEROME ST JOHN BORAZIO	Applicant
and
MELBOURNE CITY COUNCIL	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2010
DATE OF JUDGMENT:	3 December 2010 (ex tempore). Revised reasons published 20 December 2010
CASE MAY BE CITED AS:	Borazio v Melbourne City Council
MEDIUM NEUTRAL CITATION:	[2010] VSC 620
DECISION APPEALED FROM:	Melbourne City Council v Borazio [2009] VCAT 2524 (Victorian Civil and Administrative Appeals Tribunal, Reference P1777/2009, Senior Member Russell Byard, 7 December 2009).

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Town and country planning – Planning permit – Enforcement order - Application for leave to appeal from Victorian Civil and Administrative Tribunal – Whether the Tribunal erred in finding that the applicant’s premises were used as a ‘tavern’ within the meaning of the Melbourne Planning Scheme – Leave to appeal granted – No error of law - Appeal dismissed – Planning and Environment Act s 114 - Melbourne Planning Scheme cll 64.01, 74.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Pirrie of counsel	Frenkel Partners
For the Respondent	Ms S J Porritt of counsel	Melbourne City Council

HIS HONOUR:

This is an application under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) for leave to appeal and, if leave be given, an appeal against a decision of the Victorian Civil and Administrative Tribunal (“VCAT”) constituted by Senior Member Byard, given on 7 December 2009, in Melbourne City Council v Borazio.[1]
[1][2009] VCAT 2524.

The decision of VCAT was given upon an application by the Melbourne City Council under s 114 of the Planning and Environment Act 1987 in respect of an alleged contravention by the applicant of the Melbourne Planning Scheme, namely the use of the applicant’s premises at 22 Drewery Place, Melbourne as a “tavern” within the meaning of the Melbourne Planning Scheme without a planning permit required by the scheme.

The use of land in the relevant zone as a tavern, as defined, requires a permit under the planning scheme, but use as a restaurant, as defined, does not.

It was common ground that there was no planning permit to use the land as a tavern. The Tribunal’s presently relevant findings and reasoning are set out in paragraphs 18–45 of the decision, as follows:

“18.The position of Mr Borazio is that his use of the land is as a restaurant, and not as a tavern. The position of the responsible authority, as explained by Ms Porritt on its behalf, is that the use of the land is as a tavern, and not as a restaurant. However, I do not accept that the use must necessarily be one or the other of those uses. It is quite possible for land to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 620
Decision Date: 3 December 2010 (ex tempore). Revised reasons published 20 December 2010

CaseChat Overview and Summary

The matter of Borazio v Melbourne City Council involved an applicant, Borazio, who sought leave to appeal a decision by the Victorian Civil and Administrative Tribunal (VCAT). The Tribunal had upheld an enforcement order issued by the respondent, Melbourne City Council, finding that Borazio's premises were being used as a tavern without a planning permit, contrary to the Melbourne Planning Scheme. Borazio argued that the Tribunal erred in its interpretation of the term "tavern" and sought leave to appeal this determination.

The legal issues before the court were whether the Tribunal had erred in its interpretation of the term "tavern" as it appeared in the Melbourne Planning Scheme, and whether the Tribunal's decision warranted leave to appeal. The court was required to determine if there was a sufficient basis to grant leave to appeal, and if the Tribunal had made an error of law in its interpretation of the planning scheme. The court also needed to consider whether the Tribunal's findings were consistent with the provisions of the Planning and Environment Act and the Melbourne Planning Scheme.

The court found that the Tribunal had correctly interpreted the term "tavern" as it was used in the Melbourne Planning Scheme, and that the premises in question indeed met the criteria for a tavern. The court held that there was no error of law in the Tribunal's decision, and therefore, the application for leave to appeal was dismissed. The court emphasised that the Tribunal's findings were supported by the evidence presented and that the interpretation of planning scheme provisions was within the Tribunal's jurisdiction. The appeal was dismissed, and the enforcement order upheld.

Orders