Brighton Foreshore Association Inc v Bayside City Council

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0030

BRIGHTON FORESHORE ASSOCIATION INC	Applicant
v
BAYSIDE CITY COUNCIL & ORS (according to the attached schedule)	Respondents

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JUDGES:	EMERTON, SIFRIS and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2021
DATE OF JUDGMENT:	15 October 2021	Revised 18 October 2021 Appendix A - Title plans
MEDIUM NEUTRAL CITATION:	[2021] VSCA 284
JUDGMENT APPEALED FROM:	[2021] VSC 26 (Kennedy J)

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ADMINISTRATIVE LAW – Application for leave to appeal the decision of trial judge with respect to appeal on question of law – Application at first instance for leave to appeal decision of Victorian Civil and Administrative Tribunal granting planning permit for use of land as life saving club, multi-purpose function space, and café – Whether powers and restrictions imposed by An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877 (Vic) (‘Vesting Act’) on land owner were required to be taken into account in Tribunal’s review of a decision under the Planning and Environment Act 1987 about land the subject of the Vesting Act – Whether trial judge erred in concluding the Tribunal was not required to consider the effect of the Vesting Act in reaching its decision as to whether a planning permit should be granted for the proposed uses – Whether mandatory consideration – Whether open to Tribunal to conclude that proposed uses will be ancillary to use of the land as a place of public resort or recreation – Whether trial judge erred in analysis of application of the Vesting Act to the proposed uses by presupposing that the respondent Council had the power to lease part of the subject land; by accepting that the proposed uses might be permissible as incidental or ancillary uses to the use of the land subject to the Vesting Act as a ‘place of public resort or recreation’; in failing to have proper regard to whether any monetary profits to arise from the proposed uses would be devoted to the public purpose contemplated by the Vesting Act – Leave to appeal refused – City of Dandenong v Woolley (1983) 57 LGRA 315, Randwick Corporation v Rutledge (1959) 102 CLR 54, Municipal Council of Mosman v Spain (1929) 29 SR (NSW) 492, Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council (1965) 11 LGRA 407, Ryde Municipal Council vMacquarie University (1978) 139 CLR 633 considered; Walker v Shire of Flinders [1984] VR 409, Storey v North Sydney Municipal Council (1970) 123 CLR 574, Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 distinguished – An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877, Local Government Act 1874 s 483, Planning and Environment Act 1987 ss 60(1), 60(1A), 84B(1), 84B(2), Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Moloney with Mr A Berger	Verduci Lawyers
For the First Respondent	Mr C Horan QC with Mr H Hassan	Maddocks

TABLE OF CONTENTS

The application

The Vesting Act
Background facts
The trial judge’s Reasons
Proposed ground 1 — Observance of the Vesting Act
Proposed ground 2 — Relevant considerations
Application of Randwick Corporation to proposed grounds 3, 4 and 5
Proposed ground 4 — Ancillary use
Proposed ground 3 — The proposed leases
Proposed ground 5 — Private profit

Conclusion
APPENDIX A
APPENDIX B
APPENDIX C

EMERTON JA
SIFRIS JA
OSBORN JA:

The application

The applicant (‘the Association’) seeks leave to appeal the decision of Kennedy J (as her Honour then was) with respect to a proceeding brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) by way of challenge to a decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) made in its review jurisdiction.

The Tribunal relevantly determined that a planning permit should be granted pursuant to the Bayside Planning Scheme for the use of components of a redevelopment of the area containing the Brighton Life Saving Club (‘BLSC’) pavilion at Dendy Beach, Brighton. Such land sits within an extended strip of land running along the coastline which is utilised as a foreshore reserve (‘the foreshore reserve’).

Both at first instance before the Tribunal and on appeal, the Association has sought to challenge the power to grant the relevant permit relying on limitations upon the use of the foreshore reserve said to arise from the terms of an Act of Parliament vesting the land in the first respondent (‘the Council’) entitled An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877 (‘Vesting Act’).

The trial judge granted leave to appeal from the Tribunal’s decision pursuant to s 148 but dismissed the appeal.[1]
[1]Brighton Foreshore Association Inc v Bayside City Council [2021] VSC 26 (‘Reasons’).

Both the Tribunal and her Honour rejected submissions that the Vesting Act or a caveat lodged on behalf of the Crown with respect to the operation of that Act constituted a registered restrictive covenant within the meaning of the requirements of s 61(4) of the Planning and Environment Act 1987 (‘P&E Act’).[2]
[2]Section 61(4) provides:
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

Both the Tribunal and her Honour further held that the Tribunal was not required to consider and give effect to the Vesting Act in exercising its jurisdiction pursuant to the P&E Act.

The Tribunal further held that, in any event, the proposed use of the land for the purposes of the BLSC and a café were not inconsistent with the Vesting Act.

In turn, her Honour concluded that no error had been demonstrated in this secondary aspect of the Tribunal’s decision.

In essence, the Association contends that:

·as a threshold step before considering the planning merits of the permit application;
·the Tribunal was bound to consider whether the proposed uses of part of the land for a life saving club (including a multi-purpose function space) and a café could lawfully be undertaken having regard to the terms of the Vesting Act;
·upon the proper construction of the Vesting Act such uses could not be lawfully undertaken; and
·in these circumstances the Tribunal erred in law in directing that a permit issue.

The right of appeal pursuant to s 148 is restricted to an appeal on a question of law.

The application for leave to appeal to this Court identifies the following proposed question of law:

Are powers and restrictions imposed by the Vesting Act on Bayside City Council as land owner required to be taken into account in [the Tribunal’s] review of a decision under the [P&E Act] about the land the subject of the Vesting Act?

By its proposed grounds of appeal, the Association contends that the trial judge erred by failing to conclude that the Tribunal was required to take the Vesting Act into account.

It is further contended that the trial judge erred in her analysis of the application of the Vesting Act to the proposed uses:

·by presupposing that the Council had the power to lease part of the subject land;
·by accepting that the proposed uses might be permissible as ancillary uses to the use of the land subject to the Vesting Act as a whole; and
·in failing to have proper regard to whether any monetary profits to arise from the proposed uses would be devoted to the public purpose contemplated by the Vesting Act.

For the reasons which follow, we are not persuaded that her Honour erred in concluding that the Tribunal was not required to consider the effect of the Vesting Act in reaching a decision as to whether a planning permit should be granted for the proposed uses.

Nor in the alternative are we satisfied that there was any error in approaching the question of whether the proposed uses would constitute use of the land the subject of the Vesting Act for ‘public resort or public recreation’ by asking whether the particular uses were ‘incidental to’ or ‘ancillary to’ the public use of the vested land.[3]
[3]Reasons [159]–[163].

Further, the trial judge was correct to conclude that the Tribunal did not err in law in holding that the proposed use of small parts of the land for the purposes of the BLSC and a café were not contrary to the provisions of the Vesting Act but were incidental to the public use of the vested land as a whole.[4]
[4]Reasons [170]–[176].

The Vesting Act

We take judicial notice of the fact that since the enactment of the Land Act of 1862, a substantial series of foreshore reserves has been created along Port Phillip Bay within what is now metropolitan Melbourne.[5] These reserves are served at regular intervals by life saving clubs based within onsite buildings and by takeaway food or café facilities also contained within the reserves. Such uses have been regarded as generally uncontroversial aspects of the public use of the foreshore for over a century.
[5]See the discussion of the statutory scheme in Randwick Corporation v Rutledge (1959) 102 CLR 54, 77–8 (Windeyer J) (‘Randwick Corporation’).

The Tribunal is an expert tribunal not bound by the rules of evidence[6] and was entitled (subject to the rules of procedural fairness) to use its background knowledge of the usual basis on which such land uses operate. In turn, the submissions of both the Association and the Council in part assumed such knowledge.
[6]VCAT Act s 98.

Insofar as the BLSC is concerned, reference was also made to the terms of the longstanding lease of their existing club house within the foreshore reserve and aspects of the BLSC use which dates back to 1921.

The Association’s case proceeds from the fact that the creation of the foreshore reserve at Dendy Beach resulted from a site-specific piece of legislation. As a result, it contends that Dendy Beach is a special case.

In one incidental sense, which was not the subject of controversy before us, this is correct. Coastal Crown lands are subject to the provisions of the Coastal Management Act 1995 and, by s 61(3) of the P&E Act, the consent of the Minister administering that Act is required to the grant of a planning permit in respect of the use of such land. The present case, however, is not concerned with this distinction. It concerns the specific powers of the Council to deal with the land in question and the general requirements governing the grant of planning permits pursuant to the P&E Act.

The background to the Vesting Act was stated by Thomas Bent, the member for Brighton in the Legislative Assembly, when delivering the second reading speech on 12 September 1877:

Mr BENT moved that this Bill be read a second time. He explained that about forty years ago one Henry Dendy purchased 5,000 acres of land in the district of Brighton, one of the boundaries of which was Port Phillip Bay. Dendy subdivided the land, and laid off a road at a few chains distance from the beach. The estate afterwards passed into the hands of Nicholas Were, who instructed his agent to advertise the land forming the road for sale. This was done, but the Brighton Borough Council, in the interests of the public, objected to the sale. A case was stated for the opinion of the Supreme Court, and Mr Justice Molesworth ruled that there had been a dedication to the public.[7] However, to make matters all right, the borough council purchased the legal estate from Nicholas Were, the Government giving half the money, and the remainder being provided by the borough council and local residents; and then it was agreed that Parliament should be applied to for a Bill vesting the land in the Borough Council as if it had been purchased as a place of public resort or recreation in pursuance of section 483 of the Local Government Act. The Government were fully aware of the facts, and therefore it was unnecessary to trouble the House with further remarks in support of the measure.[8]

[7]Webb v Were (1876) 2 VLR (Eq) 28.

[8]Victoria, Parliamentary Debates, Legislative Assembly, 12 September 1877, 798 (Mr Thomas Bent, later Sir) (citation in original).

The Vesting Act became law in November 1877 and reads:

An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation.
WHEREAS the lands described in the schedule hereto have been for many years past unoccupied (and unimproved) and have been used as a place of public resort: And whereas the Municipal Corporation called the Mayor Councillors and Burgesses of the Borough of Brighton has from time to time expended money from its corporate funds upon the said lands in fencing and preserving trees thereon and has recently purchased the estate and interest of the owner of the legal estate in the said lands: And whereas it will be for the public advantage to vest the said lands absolutely in the said corporation and to enable the council thereof to improve the said lands and maintain order therein: Be it therefore enacted by the Queen’s Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—
1.From and after the passing of this Act the lands described in the schedule hereto shall vest in the Mayor Councillors and Burgesses of the Borough of Brighton for an indefeasible estate of fee simple from any easements rights or privileges which might otherwise be deemed to affect the same by virtue of dedication to the public user express or implied grant or otherwise howsoever. And the Council of the said corporation shall have and may exercise over and in respect of the said lands the same rights and powers as if the said lands had been purchased by the said Council as a place of public resort or recreation in pursuance of section four hundred and eighty-three of the ‘Local Government Act 1874.’

Section 483 of the Local Government Act 1874 (‘LG Act 1874’) then reads:

PART XXIV-PLACES OF RECREATION ETC.
483. The council may from time to time, by special order, purchase rent or otherwise provide lands grounds buildings or other places, either within the municipal district or at a reasonable distance therefrom not exceeding ten miles from the chief post-office, to be used as pleasure grounds public schools libraries museums gymnasiums gardens or places of public resort or recreation; and the council may from time to time level drain plant and otherwise lay out and may repair and improve any such public lands grounds or buildings, for the more convenient use and enjoyment thereof, and may afford the use and enjoyment thereof to the inhabitants, subject to such bye-laws as the council may make in that behalf.

The trial judge recorded[9] that the parties accepted that the Court could use this latter form of the statutory provision as relevantly stating the powers of the Council. Notwithstanding that there was a later re-enactment, there was no substantive difference in its form.
[9]Reasons [21] n11.

For completeness, and in order to better understand the course of this proceeding, we note that prior to the matter coming before the Tribunal, the Registrar of Titles had lodged a caveat on behalf of the Crown pursuant to s 106(1)(a) of the Transfer of Land Act 1958 in respect of the vested land (‘Caveat’). The operative provision of the Caveat reads:

On behalf of the named person and for the purpose(s) stated, the Registrar of Titles (Registrar) forbids registration of any dealing with any part of the land, other than a dealing which the Registrar is satisfied is compatible with the purpose for which the Caveat was recorded.

In turn, the purpose of the Caveat is stated as:

Purpose(s) for recording caveat
The land is not to be used otherwise than for public purposes as set out in [the Vesting Act].

The Vesting Act falls to be interpreted in accordance with well accepted principles of statutory construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[10]

[10](2009) 239 CLR 27, 46–7 [47] (citations omitted).

Section 35 of the Interpretation of Legislation Act 1984 further provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

In the present case, the Vesting Act first vested the land in the Council by way of an indefeasible estate of fee simple. It then gave the Council ‘the same rights and powers as if [the land] had been purchased … as a place of public resort or recreation under s 483 of the [LG Act 1874]’.

The Vesting Act thus relevantly empowered the Council to carry out improvements on the vested land and to afford the use and enjoyment of the vested land to the inhabitants of the municipality as a ‘place of public resort or recreation’.

The trial judge held that the reference to rights and powers was clearly intended to define the rights and powers of the Council consistently with the overall purpose of the Act ‘of public recreation’. The Council did not join issue with this analysis on the hearing of the application to this Court.

It is convenient to add the following preliminary observations with respect to the statutory provisions.

First, whilst the proper construction of the Vesting Act is a question of law, the words ‘a place of public resort or recreation’ are ordinary English words. As such, the question whether particular circumstances fall within their meaning is essentially a question of fact.[11]
[11]Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; S v Crimes Compensation Tribunal [1998] 1 VR 83; Franceschini v Melbourne & Metropolitan Board of Works (1980) 57 LGERA 284; City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298; City of St Kilda v Perplat Investments Pty Ltd (1990) 4 AATR 358; Brutus v Couzens [1973] AC 854.

Secondly, the words in issue are general words. The concept of ‘public resort’ must be given some meaning additional to that of public recreation. Taken together, the words have a potentially broad meaning.[12] A place of public resort or recreation is more than a public park.
[12]In Randwick Corporation (1959) 102 CLR 54, 95, Windeyer J described the popular meaning of the phrase ‘public reserve’ as ‘inexact’.

Thirdly, neither public resort nor recreation are activities which are fixed by reference to particular behaviours. Rather they are purposive descriptions into which particular activities may fit and which activities may be expected to change over time. Thus at the date of the enactment of the Vesting Act a horse might be ridden on recreational tracks around park spaces in Melbourne such as the Domain and Princes parks. Such activity had a different purpose than the riding of a horse by way of transport along a roadway. In the same way, the bike path shown on the application plans may be expected to accommodate the recreational use of bicycles and such use can be contrasted with the use of a bicycle on an adjacent roadway for the purpose of making a commercial delivery. Similarly, parking a car within a carpark does not ordinarily constitute public recreation but it may do so if the carpark affords direct views of the foreshore and the sea, or if the purpose of such parking is incidental to other recreational use of the foreshore. Use as a place of public resort or recreation is thus ‘use’ for those purposes.

Fourthly, the powers in issue are intended to be exercised by a publicly elected authority.

Fifthly, given the purpose of the relevant powers and the body which is intended to exercise them, the powers should be construed beneficially for the purpose for which they are granted.

Such an approach to the construction of statutes of this kind has a long history. Reference was made by the Council before the trial judge to the decision of Attorney-General v Corporation of Sunderland.[13]
[13](1876) 2 Ch D 634; Reasons [108].

In that case, the municipal corporation proposed to erect town buildings, a museum, public library and conservatory on a parcel of land at the edge of public gardens extending over 25 acres. Each member of the Court of Appeal in Chancery applied a purposive approach to the resolution of the question whether the proposed uses would fall within the description of use ‘as public walks or pleasure grounds’.

Mellish JA said:

I am of opinion that the ground was purchased for the purposes of the Public Health Act, sect 74, and can only be applied for such purposes as are authorized by that Act. I am of opinion, therefore, that no part of it can be used as the site of a town hall and offices. Can, then, any part of it be applied as a site for a museum, library, and conservatory? If the corporation were to acquire land for those purposes only, I think that such a purchase would not be within the Act; but public walks and pleasure-grounds having been laid out on a piece of land containing twenty-five acres, it is proposed to apply a quarter of an acre for the erection of those buildings. The question then arises whether this application of a small portion of the ground is not reasonably incidental to the main object, and whether it will not improve the grounds in their character of public walks and pleasure-grounds. I am of opinion that it will, for it will increase the enjoyment of persons who go to walk there, and may induce more persons to frequent the grounds. I think that we ought not to put a narrow and strict construction upon the words, but that we ought to see whether the trustees, in what they are proposing to do, are bona fide carrying out the object of the trust.[14]
[14]Attorney-General v Corporation of Sunderland (1876) 2 Ch D 634, 642.

Background facts

The Council proposes to redevelop part of the foreshore at Dendy Beach, Brighton, to provide the following:

(a) a new clubhouse for the BLSC of two levels with a total floor area of approximately 1,100 square metres, inclusive of a multifunction space of 130 square metres on the top level;

(b) a café seating 60 patrons with a combined internal and external floor area of approximately 130 square metres;

(c) a new car park with a different layout and modified access from and to the Esplanade;

(d) new pedestrian, disabled and vehicle access ways to the beach;

(e) upper and lower forecourt terraces;

(f) removal of native vegetation and the planting of new trees, shrubs and groundcovers, including construction of a rain garden to treat stormwater from the wider urban catchment currently flowing directly to the beach.

The plans describing the proposed redevelopment show that engineering, landscaping and building works are to be undertaken within a site boundary which itself comprises a relatively small part of the foreshore land vested in the Council. Appendix A depicts the foreshore reserve.[15] In turn, the proposed café and BLSC will occupy small portions of this site.
[15]The total of the land vested in the Council comprises nearly 15 hectares. The ground floor footprint of the proposed building is 632 square metres. Reasons [6].

Appendix B depicts the existing carpark, BLSC building, public toilet block and the extent of the site within which works are to be carried out.

Appendix C depicts the proposed carpark shared access path, paved forecourt and the proposed building in plan.

The development is single storey in height on the landward side and two storey on the seaward side. It includes a central outdoor plaza located between two buildings. The plaza includes steps and terraces providing access from the carpark to the beach. The southern wing of the building is proposed to contain the café. The northern wing is proposed to contain public toilets on the ground floor and accommodation for the BLSC on both the first and second floors including a ‘multi-purpose/training room’.

As the trial judge recorded:

The Council has indicated before this Court that, at this stage, it intends to lease the life saving club and multi-purpose function space to the BLSC (on terms to be negotiated), and also to lease the café to a commercial operator (on commercial terms to be negotiated). However, the relevant order of the Tribunal does not purport to authorise entry into any such lease; it merely authorises use of the land in the specified ways.[16]

[16]Reasons [17].

The vested land is located within a Public Park and Recreation Zone under the Bayside Planning Scheme. Within that zone, the Council was both the permit applicant and the responsible authority for the grant of a permit for aspects of the development the subject of particular planning controls. On 22 December 2016, after the making of an application and following the receipt of a number of objections to the proposal, the Council issued a notice of determination to grant a permit for the proposed development.

The Association and other objectors then instituted review proceedings before the Tribunal with respect to the proposed grant of the permit. In so doing they agitated the question of the ambit of the planning approvals required by the Council for the project.

In April 2017, the Tribunal held a preliminary hearing with respect to the following question:

Is there an exemption under the planning scheme for the need for Bayside City Council to obtain a planning permit for use and development for the proposed pavilion and café?[17]

[17]Wertheimer v Bayside CC [2017] VCAT 726, [4].

In May 2017, the Tribunal[18] held that the Council did not require a permit for the proposed development pursuant to the relevant zone control, but that because the use of the life saving club and café would not be uses by or on behalf of the Council as a public land manager, permits would be required for such uses.[19]
[18]Constituted by D Cook (Presiding Member) and C Daicic (Member).
[19]Wertheimer v Bayside CC [2017] VCAT 726.

On the preliminary hearing the Association had submitted that the Vesting Act constituted a bar to the proposed uses and as such the grant of a permit should not be entertained. The Tribunal was not persuaded by these submissions:

It was put to us that because the proposal seeks to limit public access to certain categories of users of the pavilion and the café and that public access would only be permitted at certain times or to certain parts of the facility, this would inherently contradict the Vesting Act such that the land would no longer be used as a ‘place of public resort or recreation’.
As a consequence, Mr Gillard QC submitted that if the proposal amounted to a use of the land that did not conform with the restrictions and conditions in the above provisions, then the proposal would breach a provision of a statute, which was regarded as paramount. He suggested that it would follow that the grant of any planning permit would be futile as it could not overcome this non-compliance.
We agree with Council that the issue of whether there is a relevant inconsistency with the Vesting Act is a separate and distinct issue from the question of law before us. However, to the extent that it was raised as a potential threshold issue as to whether the application for permit is valid, we have turned our mind to this matter with the benefit of submissions from the parties.
In principle, we would have found that the Vesting Act does not act as a statutory bar to the potential grant of a permit because the planning scheme operates independently of the Vesting Act. There is no reference to the Vesting Act in the planning scheme or the [P&E Act].
In fact, the operation of the [P&E Act] is such that any person can apply for a planning permit, even in respect of land which they may not own or have any entitlement to use or develop, so long as they notify the owner of the application. In this case, the application is made by Council as the owner of the land.
There is no requirement in the [P&E Act] or the planning scheme to demonstrate an entitlement to use or develop land in the manner sought by a permit application. However, it remains open to the Tribunal in considering whether it is appropriate to grant a permit to refuse to grant such permission if it were to find such grant to be futile in the exercise of its discretion.
This is a very high bar which we doubt would even be approached on the facts of this case (even if the proposal was to be amended to include the proposed use of the land).
For these reasons we do not regard this objection as a threshold issue in the proceeding.[20]

[20]Ibid [112]–[119] (citations omitted).

After some substantial delay,[21] the matter proceeded to a merits hearing with respect to the proposed uses, before a differently constituted Tribunal[22] in October 2019.[23] It is this decision which is the subject of the current proceeding. In its decision, the Tribunal identified a series of key issues.[24] The first of these issues was: ‘What is the relevance of the Brighton Land Vesting Act 1877?’. The Association relevantly submitted:

· The Act and the planning scheme are subject to the Vesting Act and [LG Act 1874] and should be ‘given effect and applied so that they do not contravene’ the legislation; and
· The granting of a planning permit in this application would result in breach of a registered restrictive covenant being the Caveat, and as such prevented by section 61(4) of the [P&E Act].[25]

[21]A delay explained in part by the need to give further notice of amendments to the permit application following the preliminary determination and in part by a parallel process relating to the finalisation of a permit application pursuant to the Heritage Act 2017.

[22]T Bisucci (Deputy President) and J Bennett (Senior Member).

[23]Wertheimer v Bayside CC (No 2) [2017] VCAT 1689 (‘Tribunal Reasons’).

[24]Ibid [17].

[25]Ibid [24].

The Council as permit applicant submitted:

·     Properly construed the Vesting Act and the Caveat are not restrictions for the purposes of section 61(4) of the [P&E Act];
·     Even if the Caveat is construed as a restriction, the grant of a planning permit would not breach the terms of the Caveat;
·     The proposed uses and consistency with the Vesting Act is a relevant matter for the Tribunal pursuant to section 60 of the [P&E Act]; and
·     The proposed uses are consistent with the purpose of the Vesting Act and the [LG Act 1874].[26]

[26]Ibid [28].

The Tribunal identified two principal questions for determination:

i. Is the Vesting Act and/or the Caveat a registered restrictive covenant?
ii.Are the proposed uses consistent with the Vesting Act and the Caveat?[27]

[27]Ibid [29].

In turn, it concluded that neither the Vesting Act nor the Caveat constituted a registered restrictive covenant. It further concluded that the proposed uses were consistent with the Vesting Act and the Caveat. In so doing, it traversed submissions made on behalf of the objectors in reliance on the High Court decision in Randwick Corporation v Rutledge (‘Randwick Corporation’)[28] to the effect that in order for the review site to be used for ‘public resort or recreation’:

·there must be public access to the review site as of right; and
·it cannot be a source of private profit.

[28](1959) 102 CLR 54.

Ultimately the Tribunal made the following findings of fact:

We now consider whether the proposed uses are consistent with the Vesting Act, as a matter of fact. No cases have been provided that deal with the Vesting Act.
If the terms ‘public recreation’ and ‘place of public resort and recreation’ are to be given a wide meaning, because they are general and do not refer to a class of activities then these will have different meanings to different individuals.
In fact, [the Association] says that the use/s must provide an opportunity to the public to recreate by engaging in some pursuit that may restore the public to a healthy state and in doing so renew the public by allowing participation in some pleasant pastime, occupation or amusement.
We find that the presence of a café is consistent with the [Association’s] summary of a use that is consistent with ‘public recreation’ and ‘place of public resort and recreation’. The ability to purchase a cold drink, ice-cream, coffee or food is consistent with the definition of ‘recreation’ including a pastime, amusement or pleasant occupation. The use of the review site for a café is not only consistent today but would have been consistent with the Vesting Act in 1877. We readily conclude that the purchase of a refreshment or snack as one promenaded along the foreshore would be consistent with ‘recreation’.
The BLSC is a use that we consider to be consistent with and incidental to the purpose of the Vesting Act. The BLSC provides a valuable service to the public that frequents this part of the foreshore. Notwithstanding that this part of the Bay is not a rugged and dangerous coastline, it is difficult to argue that a life saving club is not integral to Australian beach culture. The BLSC provides a safe environment for the review site through patrols, education and training. This in turn allows for the public to frequent the review site and enjoy it, in the knowledge that the BLSC is undertaking surveillance and that individuals have a safe environment. That enhances use of the review site for recreation.
We have not characterised the multi-purpose function space as a function centre but as part of the overall operation of the BLSC including training for its members. As such we do not make separate remarks or findings with respect to this and its consistency with the Vesting Act.
We find that both the BLSC and the café enhance the ability for the review site to be used for public recreation and as a place of public resort.
The café and BLSC are not open at all times but this does not mean that the uses are inconsistent with the Vesting Act. It simply means that very small parts of the review site cannot be used by the public at certain times. It does not prevent the review site in its totality from being used for public recreation and as a place of public resort.
The applicants also claimed that the BLSC is not available to the community but only to members of the BLSC. That is correct. However, all members of the community would be entitled to become members with the payment of a modest sum. Again, simply because a payment is required to become a member, and only members would be entitled to access the BLSC building, does not mean that the use is inconsistent with the purpose of the Vesting Act.[29]

[29]Tribunal Reasons [61]–[69] (emphasis in original).

It can be seen that the Tribunal concluded that the use of a small part of the vested land for the proposed purposes was consistent with the provisions of the Vesting Act. It was satisfied that both the BLSC use and the café use would enhance the ability of the review site to be used for public recreation and as a place of public resort.

The trial judge’s Reasons

The Association’s case has undergone progressive reformulation in the face of successive rejections.[30] The trial judge was confronted with an application which sought to ventilate detailed grounds relating to seven questions of law:
[30]Initially it was contended, amongst other propositions on the preliminary hearing before the Tribunal, that only activities regarded as falling within the description of public resort or recreation in 1877 could properly be regarded as falling within the statute.

1In respect of its findings that the [Vesting Act] and the [Caveat] are each not a registered restrictive covenant for the purposes of the [P&E Act], did the Tribunal misconstrue s 3 of the Subdivision Act 1988 (Vic) and s 3 of the [P&E Act] or ask itself the wrong question and in doing so, fail to comply with s 61(4) of the [P&E Act] in the making of its decision?
2.In respect of its finding at [64] that the presence of the proposed cafe on the land the subject of the application and its use thereby is consistent with the Vesting Act, has the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations or taken into account an irrelevant considerations or made an erroneous, illogical or unreasonable decision in the terms of whether the café is to be used in compliance with the Vesting Act?
3.In respect of its finding at [65] that the [BLSC] is a use that it considered to be consistent with and incidental to the purpose of the Vesting Act, as the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations as to the use of thereof or taken into account irrelevant considerations as to the use of thereof or made an erroneous, illogical or unreasonable decision in respect of terms of whether the premises on the ground floor of the development marked for the use of the [BLSC] are to be used in compliance with the Vesting Act?
4.In respect of its finding at [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act, as a part of the overall operation of the life saving club, has the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations as to the use of thereof or taken into account irrelevant considerations as to the use of thereof or made an erroneous, illogical or unreasonable decision in the terms of whether the multi-purpose function space is to be used in compliance with the Vesting Act?
5.In respect of its finding at [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act, in its use at all times other than when used as part of the overall operation of the life saving club, has the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations as to the use of thereof or taken into account irrelevant considerations as to the use thereof and/or made an erroneous, illogical or unreasonable decision in the terms of whether the multi-purpose function space is to be used in compliance with the Vesting Act?
6.Has the Tribunal erred in its decision by its interpretation and application of [Randwick Corporation] at pp 88–89?
7.Did the Tribunal, in determining the applications made pursuant to s 82 of the [P&E Act], fail to take account of matters or have regard to the matters required by s 84B(1)(a), (b), and (2)(k)?[31]

[31]Further Amended Notice of Appeal dated 28 November 2020, 2–4.

The case before this Court has undergone further refinement by way of abandonment of the contentions based on s 61(4) of the P&E Act and by way of expansion of the alleged basis on which the Vesting Act is said to be relevant.

The trial judge dealt comprehensively with each of the submissions advanced to her.

Insofar as the proposed grounds of appeal to this Court attack her Honour’s Reasons, the ultimate question for this Court must be whether error on a question of law has been demonstrated in the original decision of the Tribunal.

Before turning to the proposed grounds of appeal, it is nonetheless convenient to summarise the trial judge’s Reasons.

Her Honour first set out the background to the proceeding. She then addressed as the first issue, the question whether the Tribunal was obliged to comply with alleged limitations on its powers which were said to arise under the Vesting Act. After setting out the relevant terms of the Vesting Act and the LG Act 1874, her Honour recorded the Council’s submission that the appeal could only succeed if the Association demonstrated that the Tribunal was obliged to apply the provisions of the Vesting Act.

On day two of the hearing, the [Association] sought to, and did, add question of law 7. This directly raised whether the Tribunal was ‘required’ to take the Vesting Act into account, not only by reason of s 61(4), but by reason of certain other provisions identified in the P&E Act. The [Association] did not seek to challenge the Tribunal’s ruling of 19 May 2017 or otherwise suggest that the Tribunal should have refused the permit in the exercise of its discretion by reason of futility. Rather, the [Association’s] position was that the Tribunal should have considered that the grant of the permit was unlawful by reason that it was ‘required’ to apply the Vesting Act as a mandatory consideration under the P&E Act. Consistent with this position, the [Association] actually sought a declaration in this proceeding that the proposed uses were inconsistent with, and did not accord with, the provisions of the Vesting Act (rather than an order for a remittal).[32]

[32]Reasons [26] (emphasis in original).

The trial judge then considered first whether the Tribunal was obliged to take the Vesting Act and the Caveat into account by reason of s 61(4) of the P&E Act. This issue was raised by question 1 of law in the application before her. For the reasons set out at [28]–[57] of her decision, she rejected the primary basis on which the Vesting Act was said to be relevant, both before the Tribunal at first instance and on the application for leave to appeal. Unsurprisingly, this aspect of her Honour’s decision is not challenged before us.

The trial judge then turned to the question whether the Tribunal was obliged to take the Vesting Act into account by reason of various provisions of the P&E Act. This issue was raised by question of law 7 in the application for leave to appeal. Amended ground 6 of appeal was as follows:

(a)Section 84B(l)(a), (b) and (2)(k) provide that in determining an application made pursuant to s 82 of the [P&E Act], the Tribunal is required to take account of matters and have regard to matters which the person or body in respect of whose decision the application for review is made was and is required to take account of in making its decision, and must take account of any other matter which it is required by the provisions of the [P&E Act]) or any other Act to take account of in determining the application for review.
(b)The Tribunal failed to take account of and failed to have regard to the proper application and construction of the Vesting Act.
(c)The Tribunal failed to take account of and failed to have regard to the following matters with respect to the proposed uses of the land arising from the proper application and construction of the Vesting Act:
(i)evidence that showed that the proposed café is to be leased by the first respondent;
(ii)the absence of evidence as to whether the cafe will be operated for attempted profit, and if so how the café operator will direct its profits;
(iii)evidence that showed that the BLSC is currently leased, is proposed is to be leased, and/or is to have a degree of exclusive occupation and control of the premises or part thereof;
(iv)evidence that showed that the BLSC currently conducts private activities on the premises, or activities otherwise than for public purposes;
(v)evidence that showed the requirements of BLSC's membership;
(vi)evidence that showed the proposed use of the multi-purpose facilities is intended to be primarily used by the BLSC for training purposes and is that it is intended to have exclusive use of the multi-purpose space during peak patrol season for its private purposes;
(vii)the absence of evidence as to how the BLSC directs and will direct its profits.

(d)The matters referred to in paragraph 6(b) and (c) hereof were required to be considered by reason of s 60 of the [P&E Act], as they:
(i)constituted relevant matters within the meaning of s 60(1A)(j), by reason of the terms of the Vesting Act; and
(ii)occasioned significant social and economic effects (s 60(1)(f)) arising from the proposed uses.[33]

[33]Further Amended Notice of Appeal dated 28 November 2020, 12–13.

Her Honour set out the terms of the statutory provisions relied on and the submissions of the parties. Following analysis, she concluded that:

·the Association had not identified anything in the P&E Act which suggests that it was mandatory for the Tribunal to consider whether the Council had an entitlement to use the land as proposed;[34]
·the application for review before the Tribunal was concerned with the question of whether a permit should allow use of the land for particular purposes. The Tribunal was not concerned with any restrictions on the Council’s proprietary rights to use the land;[35]
·the requirement of s 60(1)(f) that the decision-maker consider any significant social and economic effects the use may have did not engage the question of the effects of the Vesting Act;[36]
·section 60(1A)(j) of the P&E Act provided that, if the circumstances appeared to so require, the decision-maker may consider any other relevant matter but did not require the Tribunal to enforce the provisions of the Vesting Act. The Tribunal might have had regard to the provisions of the Vesting Act as a matter bearing on the exercise of its discretion but the Association did not challenge the Tribunal’s decision on this basis.[37]

[34]Reasons [71].

[35]Ibid [72].

[36]Ibid [73].

[37]Ibid [70].

It followed that the proposed appeal must fail because it was unnecessary for the Tribunal to consider the application of the Vesting Act in the present case.[38] Nonetheless, in deference to the submissions of the parties, the trial judge went on to consider whether the Tribunal had erred in its subsidiary conclusions with respect to the Vesting Act.
[38]Ibid [76]–[79].

The trial judge summarised the basis on which the Association put its case as follows:[39]
[39]Ibid [80]–[83].

Questions of law 2–5 challenged particular findings of the Tribunal as follows:
(a)at paragraph [64] that the presence of the proposed café on the land the subject of the application and its use thereby is consistent with the Vesting Act (question 2);
(b)at paragraph [65] that the BLSC is a use that it considered to be consistent with and incidental to the purpose of the Vesting Act (question 3);
(c)at paragraph [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act as a part of the overall operation of the life saving club (question 4);
(d) at paragraph [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act in its use at all times other than when used as part of the overall operation of the life saving club (question 5).
The question raised was substantially identical in each case as follows:
has the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations or taken into account irrelevant considerations or made an erroneous, illogical or unreasonable decision in the terms of whether the [relevant specified use] is to be used in compliance with the Vesting Act?

The grounds particularised under each question raise a scattergun of allegations, though the key allegation was that there had been a misconstruction of the Vesting Act.
The [Association] also raised the following question of law 6:
6.Has the Tribunal erred in its decision by its interpretation and application of [Randwick Corporation] at pp 88–89?

Her Honour then set out further the relevant conclusions of the Tribunal before setting out the contentions of the parties on the application for leave to appeal. In so doing, she recorded four core propositions advanced by the Association.

·First, it was submitted that the use and enjoyment of the land cannot be afforded to persons other than the ‘inhabitants’. A proposal which affords the use to someone other than the inhabitants, ie by providing exclusive possession (by leasing) to the BLSC and the unknown café operator, would exclude the inhabitants contrary to the Vesting Act.
·Secondly, any exercise of power by the Council cannot exceed the purpose of the Vesting Act to set aside the land for ‘public resort or recreation’. The permit purported to grant permissions beyond this, by granting leases with the power to exclude, and which would result in special privileges being given to members.
·Thirdly, the test was whether the use of the land was for the purpose of public resort or recreation and not whether the proposed activity on the land would be consistent with public resort and recreation as the Tribunal found. Insofar as ancillary use was concerned, such uses must still be for a public purpose and must not exclude the public nor be used for profit derivation.
·Fourthly, if the land was being made available to a private interest, any profits derived from providing facilities to the public must be devoted to the public.[40]

[40]Ibid [87]–[93].

Her Honour then made a series of preliminary observations with respect to the framework of the relevant statutory scheme.[41]
[41]Ibid [112]–[118].

Then, commencing with the decision of the High Court in Randwick Corporation,[42] the trial judge considered a series of authorities which gave guidance as to the meaning of the concept of use as a ‘public reserve’ and as to the content of the notion of ancillary use as a potential element of use of land for public recreation.
[42](1959) 102 CLR 54.

The trial judge distilled the following principles from these cases:[43]
[43]Reasons [150]–[155] (citations in original).

Subject to the words of the specific provision, in order for land to be used for public recreation and enjoyment, first, the land must be open to the public generally as of right; secondly it should not be a source of private profit.[44]
[44]Randwick Corporation (1959) 102 CLR 54, 88.
In relation to the first point, it is not necessary for all members of the public to have free access to all parts of the land at all times. Public access may be controlled or regulated, for example, with fences, and may be entirely prevented at times (eg at night).[45] The enjoyment of special privileges by members of a club may also not be fatal though it is a material consideration.[46]
[45]See eg, Randwick Corporation (1959) 102 CLR 54, 88–9; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2012) 84 NSWLR 219, 227 [33] (‘Goomallee’s Case’).
[46]Randwick Corporation (1959) 102 CLR 54, 89.
In relation to the second point, if members of the public have to pay to enter the land it may still be a public reserve if the moneys are devoted to its maintenance,[47] or ‘to the public purpose.’[48]
[47]Ibid.
[48]Goomallee’s Case (2012) 84 NSWLR 219, 226 [30].
The grant of a lease resulting in the total exclusion of all members of the public may therefore be contrary to use for a relevant public purpose.[49] This is consistent with a focus being generally on the persons who in law control the land.[50] Similarly, any imposition of a fee is also important as it involves a restriction on the use of the land by the public.[51]
Nevertheless, a limitation on the public may be justifiable if it can be described as ‘ancillary,’[52] or ‘incidental’[53] to the overall relevant purpose of public recreation. It may even be appropriate to vest land in bodies other than the Crown provided this is done in furtherance of, or incidental to, the relevant public purpose.[54]
In considering whether any restriction or private use is ‘ancillary’ or ‘incidental’ to the use of the rest of the land for a public purpose:
·the concept involves a question of fact and degree and only becomes a question of law if the decision could not be made and/or the decision was not open.[55] More particularly, it will be a matter for the fact finding Tribunal to consider what facts and circumstances are significant, as well as what the answer is;[56]
·the question is not to be treated ‘narrowly or strictly;’[57]
·the ordinary meaning of ‘ancillary’ is accessory or auxiliary. A use may be ancillary to another if it is a necessary adjunct to another use, or if it is subsidiary to that other use;[58]
·it is also important to consider the necessary ‘nexus’ with the general purposes of the relevant land,[59] eg whether it is in the interests of the public to provide for their recreation within the area that they be excluded from part of it;[60]
·relevant factual matters may include the size of the affected land compared to the entire area;[61] whether the use requires members of the public to traverse and enjoy the public area;[62] or whether the affected land is separated from the remainder of the public area.[63]

[49]Storey v North Sydney Municipal Council (1970) 123 CLR 574 (‘Storey’); Application of Willoughby City Council (as manager of the Talus Reserve Trust) [2016] NSWSC 1717 (‘Talus’); Attorney-General (NSW) v Warringah Shire Council [1972] 1 NSWLR 526.

[50]Randwick Corporation (1959) 102 CLR 54, 88.

[51]See eg, Talus [2016] NSWSC 1717; Leahy v City of Camberwell [1973] VR 589 (‘Leahy’).

[52]WaverleyMunicipal Council v Attorney-General (1979) 40 LGRA 419, 428 (‘Waverley’); Burnell v Downham Market Urban District Council [1952] 2 QB 55, 68 (‘Burnell’); Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council (1965) 11 LGRA 407, 410 (‘Royal Botanic Gardens’); Brush Park Bowling Club Limited v Ryde Municipal Council (1970) 19 LGRA 380, 383 (‘Brush Park’).

[53]Cole v Moree Municipal Council [1976] 1 NSWLR 607, 614; Goomallee’s Case (2012) 84 NSWLR 219, 227 [33].

[54]Goomallee’s Case (2012) 84 NSWLR 219, 227 [33].

[55]Royal Botanic Gardens (1965) 11 LGRA 407, 410; Hoe v Manningham City Council (2011) 183 LGERA 441, 448–9 [23]–[25] (‘Hoe’); Burnell [1952] 2 QB 55, 56, 67.

[56]Hoe (2011) 183 LGERA 441, 448 [23].

[57]Waverley (1979) 40 LGRA 419, 428.

[58]Hoe (2011) 183 LGERA 441, 447 [16].

[59]Waverley (1979) 40 LGRA 419, 430.

[60]Attorney-General for New South Wales v Cooma Municipal Council [1963] NSWR 1657, 1663, cited in Goomallee’s Case (2012) 84 NSWLR 219, 226–7 [31].

[61]Royal Botanic Gardens (1965) 11 LGRA 407, 410; Talus [2016] NSWSC 1717, [56].

[62]Royal Botanic Gardens (1965) 11 LGRA 407, 410.

[63]Brush Park (1970) 19 LGRA 380, 383.

Her Honour then responded to the four key propositions advanced on behalf of the Association as follows. First, the grant of the permit does not authorise or create a lease at all. Rather, it simply grants permission for a particular use of the land. Further, even if a private lease is utilised for the purpose of the use, it will be necessary to consider whether that private use is relevantly ancillary to the use of the land for public resort or recreation.

Secondly, any limitations on use of the land by imposition of fees and/or limitation on access, must be carefully considered. However, such limitations may be justified if they are viewed as relevantly incidental to the public purpose.

Thirdly, the issue raised in this case is whether the café and BLSC use are ‘ancillary’ to the use, for a public purpose, of the rest of the vested land.

Fourthly, it may ultimately be relevant to consider the use of any profits and particularly whether such profits are returned to benefit the public by way, for example, of making the life saving club viable. However, such issues did not arise as matters for the Tribunal on a decision on a planning permit. Moreover, the separate letting of the café to a business may be justified as properly ancillary to public use.

There was no error in the Tribunal’s approach to the assessment of the uses in issue by asking whether controls on public access were ‘consistent or incidental to … the relevant public purpose’.[64] No error had been demonstrated in the decision of the Tribunal by reference to the principles stated in Randwick Corporation.[65]
[64]Reasons [162] (emphasis in original).
[65]Ibid [164].

Accordingly, question of law 6 would be answered in the negative.

Her Honour then summarised the Tribunal’s findings of fact with respect to the ancillary nature of the proposed BLSC, café and multi-purpose function space uses. The Tribunal’s Reasons demonstrated a nexus between the restricted use and the general purpose of use of the public land in each case. It was open to the Tribunal to find in substance that the use as life saving club was essentially incidental or ancillary to the use of the rest of the land for public recreation. It was open to the Tribunal to find that the café enhanced the ability for the review site to be used for public recreation and as a place of public resort. It was open to the Tribunal to conclude that the multi-purpose function space would be used as part of the overall operation of the BLSC including training for its members. It followed that the proposed grounds of appeal relating to questions of law 2, 3, 4 and 5 should be answered in the negative.

Thus, even if her Honour were wrong as to the applicability of the Vesting Act, the Association had not demonstrated that the Tribunal failed to properly apply that Act. We turn then to the proposed grounds of appeal.

Proposed ground 1 — Observance of the Vesting Act

Proposed ground 1 of appeal is as follows:

The premise of the decision below is in error by reason that it was found that [the] Tribunal was obliged to take into account [the Vesting Act] (and thereby its proper construction, and controlling application to the land the subject of the permit) if and only if the Vesting Act was a ‘registered restrictive covenant’ ([P&E Act] s 61(4)) or was a matter required to be taken account of or regard had to pursuant to [P&E Act] s 84B. The Vesting Act is a law which requires observance, without derogation.

The trial judge responded to questions 1 and 2 of law articulated in the application for leave to appeal before her. These were respectively the questions whether the Tribunal was required to take into account the provisions of the Vesting Act either by reason of s 61(4) of the P&E Act (question 1) or by reason of the provisions of the P&E Act which stipulated relevant considerations and, in particular, ss 84B(1)(c) and (2)(k) (question 2).

There is nothing in this ground as it is formulated. It mischaracterises the trial judge’s decision. Nonetheless, for completeness, we would add that the proposition now advanced on behalf of the Association that the Tribunal was required to consider all aspects of the law generally which could apply to the proposed use is misconceived.

It is true that the Vesting Act is a law which requires observance without derogation irrespective of the provisions of the P&E Act. But this does not mean that the Tribunal was obliged to prospectively conclude whether the use proposed to be carried out under the planning permit will comply with Vesting Act.

As the Council submits, land use in Victoria is regulated by cumulative controls imposed by statute and the common law. The grant of a planning permit does not authorise a land use other than for the purposes of the provisions of the P&E Act.

Thus, a single proposal for the residential redevelopment of a former industrial site may not be able to proceed unless it complies cumulatively with the requirements of the P&E Act, the Environment Protection Act 2017, the Building Act 1993, the Heritage Act 2017 and other State and relevant Commonwealth legislation if applicable. The grant of a planning permit for site works involving excavation will not relieve the developer from compliance with environmental regulations governing the disposal of contaminated soil. The grant of a planning permit for the construction of a building will not relieve the developer from compliance with fire safety requirements under the Building Act. Likewise, if a proposal permitted under the P&E Act does not comply with the Heritage Act then it cannot proceed.

Conversely, the essential task of the Tribunal in its review jurisdiction relating to the grant of planning permits is simply to determine as an administrative decision-maker whether a proposed land use is an acceptable outcome having regard to concepts of net community benefit and sustainable development as articulated in the P&E Act and the planning framework provisions of the planning scheme and elaborated in relevant policy documents.[66]
[66]See VCAT Act ss 42(1) and 51(1) and P&E Act ss 82 and 84B and the provisions of the Bayside Planning Scheme.

This said, as the Tribunal recognised upon the preliminary hearing in this matter, the Tribunal must retain a residual discretion to refuse the grant of a planning permit if to do so would be futile having regard to incurable inconsistency with other provisions of the law.[67]
[67]City of Dandenong v Woolley (1983) 57 LGRA 315.

The Association’s case was not put on the basis of futility either before the Tribunal or the trial judge. Nor could it have been. The proposed uses were capable of implementation without the leasehold arrangements to which the Association takes particular objection. Moreover, at worst, the grant of a planning permit by an independent tribunal endorsing the appropriateness of the proposed uses might be regarded as a powerful basis for seeking amendment of the Vesting Act (that being the course which the Association submits should be followed).

For completeness, we add that to the extent that Walker v Shire of Flinders[68] can be read as supporting the view that the Tribunal was relevantly bound to give effect to statutory provisions other than the P&E Act, we respectfully disagree. The distinction between discretionary and mandatory considerations does not appear to have been raised in that case. The better view is that unlawfulness of a proposed use in the general sense goes to a question of discretion.
[68][1984] VR 409, 415.

Proposed ground 2 — Relevant considerations

Proposed ground 2 of appeal is as follows:

Notwithstanding ground 1, the judge erred in finding that the Vesting Act (and thereby its proper construction and controlling application to the land the subject of the permit) was not a mandatory consideration required to be taken into account by the Tribunal by reason of [P&E Act] ss 60(1A)(j), 84B(1)(a), (b), and (2)(k), and in particular failed to have proper regard to the fact that the matters therein arose for consideration from the fact the [Council] did not propose to use the land itself as a public land manager for it intended and intends to lease the land to private third party operators so as to carry out the proposed uses.

This ground agitates one only of the considerations under s 60 which it was submitted to the trial judge supported the conclusion that the Vesting Act was a matter which the Tribunal was bound to take into account, namely the residual category provided for in s 60(1A)(j) of ‘any other relevant matter’. Reliance on s 60(1)(f) has now been abandoned. The full terms of s 60(1) and s 60(1A) are as follows:

(1)Before deciding on an application, the responsible authority must consider—
(a)the relevant planning scheme; and
(b)the objectives of planning in Victoria; and
(c)all objections and other submissions which it has received and which have not been withdrawn; and
(d)any decision and comments of a referral authority which it has received; and
(e)any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(f)any significant social effects and economic effects which the responsible authority considers the use or development may have.

(1A)Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider—
(b)the approved regional strategy plan under Part 3A; and
(c)any amendment to the approved regional strategy plan under Part 3A adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and
(d)the approved strategy plan under Part 3C; and
(e)any amendment to the approved strategy plan under Part 3C adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and
(ea)the approved strategy plan under Part 3D; and
(eb)any amendment to the approved strategy plan under Part 3D adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and
(f)any relevant environment reference standard within the meaning of the Environment Protection Act 2017; and
(fa)any Order made by the Governor in Council under section 156 of the Environment Protection Act 2017; and
(g)any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and
(h)any amendment to the planning scheme which has been adopted by a planning authority but not, as at the date on which the application is considered, approved by the Minister or a planning authority; and
(i)any agreement made pursuant to section 173 affecting the land the subject of the application; and
(j)any other relevant matter.

Sections 84B(1) and (2) further provide:

(1)In determining an application for review under this Act, the Tribunal must—
(a)take account of any matter which the person or body in respect of whose decision the application for review is made—
(i)properly took account of in making its decision; or
(ii)was required to take account of in making its decision; and

(b)have regard to any matter which the person or body in respect of whose decision the application for review is made—
(i)properly had regard to in making its decision; or
(ii)is required to have regard to in making its decision.

(2)In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal—
(a)must take into account any relevant planning scheme;
(b)must have regard to the objectives of planning in Victoria;
(c)must (where appropriate) take account of the approved regional strategy plan under Part 3A;
(d)must (where appropriate) take account of the approved strategy plan under Part 3C;
(da)must (where appropriate) take account of the approved strategy plan under Part 3D;
(e)must take account of any relevant environment reference standard within the meaning of the Environment Protection Act 2017;
(ea)must take account of any Order made by the Governor in Council under section 156 of the Environment Protection Act 2017;
(f)must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;
(g)must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority;
(h)must (where appropriate) have regard to any agreement made pursuant to section 173 affecting the land the subject of the application for review;
(i)must (where appropriate) have regard to any amendment to the approved regional strategy plan under Part 3A adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;
(j)must (where appropriate) have regard to any amendment to the approved strategy plan under Part 3C adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;
(ja)must (where appropriate) have regard to any amendment to the approved strategy plan under Part 3D adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;
(jb)must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect;
(k)must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.

Section 84B(1) required the Tribunal, amongst other things, to take into account and have regard to any matter which the Council was required to take into account and have regard to under s 60.

Section 84B(2)(k) required the Tribunal to take account of any other matter which the Tribunal was required by the provisions of the P&E Act or any other Act to take account of in determining the application for review.

In the first instance, s 60(1)(c) thus required the Tribunal to consider the Association’s objections to the grant of the proposed permit. In so doing, the Tribunal had to determine whether the objections raised by reference to the Vesting Act were material to its decision. As the trial judge held, relevance was to be determined by reference to the provisions of the P&E Act.

The Association’s reliance on s 84B(2)(k) to establish relevance can be shortly disposed of. Neither the P&E Act nor any other Act require in terms that the provisions of the Vesting Act to be taken into account on the determination of a planning appeal.

Insofar as s 84B(1) more generally is concerned, the trial judge was correct to observe that the P&E Act provides for a very prescriptive regime. Moreover, none of the matters identified in either ss 60(1) and (1A) or ss 84B(1) and (2) relate to considerations other than matters connected with planning or environmental impacts.

Within this scheme, the P&E Act directs attention to two specific considerations relating to title to land. The first is the effect of registered restrictive covenants pursuant to s 61(4) to which we have already referred. The second is the effect of agreements made pursuant to s 173 of the P&E Act.[69] Sections 173, 174, 181 and 182 of the P&E Act provide a specific mechanism by which title to land may be encumbered with obligations for planning purposes. In essence, the P&E Act enables obligations to be placed on the title which relate to land use and run with the land. This mechanism was not engaged in the present case.
[69]See s 60(1A)(i) and s 84B(2)(h).

These specific provisions relating to title to land fall to be considered within a statutory scheme under which planning permits are not licences personal to the applicant. They run with the land. Thus, the proprietary interest of a permit applicant is ordinarily irrelevant to the determination of a permit application. Consistently with this principle, the consent of a landowner is not necessary to the making of a valid permit application. The Act simply requires that notice be given to an owner.[70]
[70]P&E Act s 48(1)(b).

As the trial judge held, the factors an administrative decision-maker is bound to consider are determined by construction of the statute. Where matters relating to the exercise of a discretion are unconfined or left open by words such as ‘any other relevant matter’, a court will not find that the decision-maker is bound to take something into account unless an implication that it is bound to do so is found in the subject matter, scope or purpose of the Act.[71]
[71]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40; Chang v Neill (2019) 62 VR 174, 195 [73].

There are a series of collateral considerations which support the view that it is unlikely the legislature intended that the Tribunal should make rulings as to the effect of the Vesting Act:

·Because the parties to a review are defined by the provisions relating to planning permit applications, it may be that parties potentially affected by issues of title are not before the Tribunal. Thus, in the present matter, the BLSC was not a party to the relevant review proceeding.
·The Tribunal is not bound by laws of evidence. It is thus possible that it might reach a conclusion on the facts which would not be reached by a Court adjudicating between affected parties in accordance with the rules of evidence.
·Whilst a consideration of a permit applicant’s disclosed intentions may inform the Tribunal’s decision both as to the grant of a permit and as to appropriate conditions, compliance with the Vesting Act will depend upon the ongoing nature of the actual land use.

Read as a whole, it cannot sensibly be concluded from the provisions of the P&E Act that it should be implied that the Tribunal was required to have regard to and give effect to the provisions of the Vesting Act in carrying out its statutory function.

In submission on the application for leave to appeal, the Association placed reliance on the decision of Hayne JA (with whom Brooking and Charles JJA agreed) in Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-branch v Moreland City Council.[72] That case concerned the application of a predecessor to the current s 60(1) which placed the reference to significant social and economic effects in the category of matters which if the circumstances appear to so require the responsible authority may take into account. As Hayne JA explained, the Tribunal could not exclude evidence which went to the question whether a proposed use may have significant social and economic effects, by relying on the use of the word ‘may’ in the introductory words of the relevant subsection.[73] If the circumstances demonstrated significant social or economic effects, the Tribunal was bound to consider those effects.
[72][1998] 2 VR 406.
[73]Ibid 413–4.

This decision does not assist in the determination of what is a relevant matter in the present case.

There was no error in her Honour’s decision that s 60(1A) did not require the Tribunal to give effect to the provisions of the Vesting Act.

Accordingly, the trial judge was correct to conclude that the decision of the Tribunal was not attended by any arguable vitiating error of law.

It is only if one of the threshold matters raised by proposed grounds 1 and 2 succeeds that proposed grounds 3, 4 and 5 arise. Nonetheless, it is desirable for completeness to address the challenges raised by them.

Application of Randwick Corporation to proposed grounds 3, 4 and 5

Each of the remaining proposed grounds of appeal call in aid principles derived from the judgment of Windeyer J in Randwick Corporation.[74]
[74](1959) 102 CLR 54.

Randwick Corporation was concerned with the question whether Randwick Racecourse was exempt from rating. In 1863, a Crown grant of land was made for purposes of public recreation to trustees who were empowered to permit the land to be used as a racecourse, a racehorse training ground, a cricket ground, rifle butts and for any other public amusement or purposes declared by Government Gazette. The grant and subsequent legislation also authorised the trustees to lease the land to the Australian Jockey Club. The land was leased to the Australian Jockey Club and used by it for the purposes of a racecourse, racehorse training and social activities by members. When used as a racecourse members of the public were admitted on payment of reasonable admission charges. In substance, the use constituted a major commercial enterprise.

Section 132(1) of the Local Government Act 1919 (NSW) provided:

All land in a municipality or shire (whether the property of the Crown or not) shall be ratable except — (c) land which is vested in the Crown or in a public body or in trustees and is used for a public reserve;

This provision was informed by a definition contained in s 4 of the Act which provided:

In this Act, unless inconsistent with the context or subject matter, ‘Public reserve’ means public park and any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature, but does not include a common.

A majority of the High Court comprising Dixon CJ, Fullagar, Kitto and Windeyer JJ held that the land was not exempt from rating because it was not dedicated for purposes which made it a public reserve in the requisite sense nor was it used as a public reserve. Menzies J was of the view that it had been shown that the land was dedicated or reserved for the purposes of public amusement but the land was not exempt because it was not used as a public reserve.

The leading judgment was given by Windeyer J (with whose reasons Dixon CJ and Kitto J agreed). In the course of his judgment, his Honour stated the following principles bearing on the question whether land is used for a public reserve in the requisite sense:

In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park — which is what the Act contemplates (see, in addition to the definition, ss 344–355) — and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As to the first: It is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or for any similar sufficient reason. It is not incompatible with a place being dedicated for public recreation and enjoyment that its use be regulated, and that persons using it must use it having regard to the particular form of recreation and enjoyment which takes place there — whether, for example, it be a golf links, tennis court, ocean beach, zoological gardens or rifle range. It is not incompatible with a public park or reserve that at particular times, as for example at night, the public are wholly excluded. And it is not necessarily incompatible with a place being a place for public recreation and enjoyment that certain persons are allowed access at times when the general public is excluded or are allowed into parts where the general public cannot go — for example research students may have special advantages in a public library, scientists in a public museum and so on. But, as Walsh J said in the Supreme Court, ‘the enjoyment of special privileges by members of the club, differing in kind from any which the general public enjoy, is to be regarded as a material consideration in ascertaining whether the land is used for public purposes’.

As to the second requirement, that the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserve, provided that the moneys thus obtained are all devoted to its maintenance. Walsh J referred to this also as a material consideration. It is more than that. It must always — or nearly always — be a decisive consideration. The general obligation of trustees of public parks and reserves to apply to their maintenance and improvement all moneys paid by the public for the right to enjoy them is recognized by the Local Government Act 1919, s 352; and it lies at the root of decisions to be mentioned.[75]

[75]Ibid 88–9 (citation omitted).

We accept, as did the trial judge, that this statement offers guidance as to the content of the notion of public recreation, but the following must be kept in mind.

First, the statement concerns the application of a particular statutory regime. Subsequently, Windeyer J also stated that the use of the reservation would not be one for a public reserve in the popular but inexact meaning of that phrase.[76]
[76]Ibid 95.

Next, the second requirement identified by Windeyer J is expressed in terms which acknowledge and respond to the underlying purpose of rating legislation. That purpose is absent in the present case. Whilst the derivation of private profit may be a relevant consideration in other contexts, its significance falls to be assessed by reference to the circumstances in which it falls to be considered.

Thirdly, the judgments of both Windeyer J and Menzies J recognise that a use incidental to a use for public recreation may be regarded as a use for that purpose, despite the fact that viewed in isolation it would not be. Each judgment addresses the issue in the context of discussing Municipal Council of Mosman v Spain.[77] Spain’s Case related to the liability to pay rates in respect of Tooronga Park Zoo. Menzies J[78] and Windeyer J[79] each expressed the opinion that the outcome in Spain’s Case was correct although each criticised the significance that the leading judgment of Ferguson ACJ attributed to the absence of the word ‘solely’ in the statutory description of the relevant purpose.
[77](1929) 29 SR (NSW) 492 (‘Spain’s Case’).
[78]Randwick Corporation (1959) 102 CLR 54, 65.
[79]Ibid 93–4.

The factual matters which gave rise to particular controversy in Spain’s Case were:

·the provision of ticketing privileges to members of the Zoological Society;
·the charging of admission fees to the public; and
·the provision of refreshment rooms on a commercial basis for the use of the public.

The first matter fell to be considered in circumstances where the Zoological Society had provided both a significant gift of animals and of funds to the Zoo upon its foundation. Taken together, the matters noted above were held not to deprive the Zoo of the character of a public reserve used for public recreation and, as we have noted, this view of the facts was approved in Randwick Corporation.

In Randwick Corporation, after reference to the absence of words such as ‘exclusively’ or ‘solely’ in the statute, Windeyer J said:

Even without such words, an exemption from rating based upon use or occupation for a particular purpose or in a particular manner can only apply when the property is so used that it can properly be described as used for that purpose or in that manner, any other user being merely incidental, or at least not inconsistent with such main user.[80]

[80]Ibid 94 (emphasis added).

Menzies J said:

To fall within s 132(1)(c) land must, I think, be set apart and used for the general welfare; it must be land open to common and general use for — to use language based upon the definition in s 4 — public health, recreation, enjoyment or the like. This does not mean that every member of the public must have an unfettered right to resort to every public reserve and to use the facilities there provided as and when he chooses free of charge. There are public reserves of a character which requires close regulation of their public use, eg botanical gardens or a sports arena. Nor does it mean that no members of the public should have special privileges for the use of the reserve; eg to admit botanists to botanical gardens at times when they are closed to the general public would be consistent with their use as a public reserve. Nor is an admission charge inconsistent with land being used as a public reserve. What is required in every case where the question is whether land is used for a public reserve is a survey of all that happens upon the land to determine whether it is in fact set apart and used for the general welfare in the sense already stated. Before making this survey, there is, however, a particular point of law to be mentioned.[81]

[81]Ibid 64–5.

After reference to the reasoning adopted in Spain’s Case, his Honour continued:

The general survey to which I have already referred is one that would take account of all uses to which the land is put, for the purpose of ascertaining whether the proper conclusion is that the land is held and used for the general welfare, as already stated. I would avoid the use either of the word ‘solely’ or the word ‘substantially’ in relation to s 132(1)(c) but would acknowledge that uses which by themselves would not seem to be obvious uses for a public reserve might, as part of a wider use, be properly regarded as part of a use for a public reserve, eg the establishment and management of a restaurant by private caterers or the hiring of pleasure boats in a public park, the provision of stalls for the sale of machinery at an agricultural show, the granting of privileges to members of a society in the use of zoological gardens. Indeed, I have no reason to think that the actual decision in Spain’s Case that Taronga Park was used for a public park, was not correct.[82]

[82]Ibid 65 (citation omitted).

It will be recalled that the notion of incidental use was central both to the findings of the Tribunal and the conclusions of the trial judge with respect to the question whether the proposed uses of the BLSC and the café were consistent with the Vesting Act.

The concept of incidental use is further illustrated by the judgment of Else-Mitchell J in Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council (‘Royal Botanic Gardens’).[83] That case raised a similar issue to that raised by the refreshment rooms in Spain’s Case. Land was dedicated for public purposes, namely as the Royal Botanic Gardens, and vested in trustees who leased a small portion to a private individual. The lease granted possession of a kiosk with the right to carry on the business of supplying refreshments and light meals to the public. After referring to the judgments of Menzies and Windeyer JJ in Randwick Corporation and citing the two requirements identified in Windeyer J’s judgment, his Honour observed first, and despite the lease of the kiosk, that there was little doubt that the Royal Botanic Gardens were open to the public generally as of right. Secondly, insofar as the land was used for private purposes, such use was still properly regarded as one constituting use for public recreation.

But even where some part of an area of land is used for private purposes it will be a question of fact whether any particular use is so foreign to the use stipulated in the instrument of dedication that it must be capable of being justly described as used for private benefit. Upon this question I entertain little doubt that the occupation of the kiosk is not so foreign to the purposes of public recreation for which the Royal Botanic Gardens are dedicated as to require me to conclude that it is not used for public recreation. Not only is the area of the kiosk, in comparison with the whole area of the Gardens, virtually negligible, but resort to the facilities provided at the kiosk requires members of the public to traverse a substantial part of the Gardens and necessarily to derive some recreational benefit from so doing; the provision of modest refreshment can reasonably be regarded as an incident of recreation in the open air, and the other facilities which the lessees provide for patrons are in conformity with the broad public purpose for which the Gardens are dedicated. These conclusions lead me to the result that the separate letting of the kiosk is ancillary to the purposes of public recreation for which the Royal Botanic Gardens are dedicated so as to justify my holding that the claim to exemption from rates has been established.[84]

[83](1965) 11 LGRA 407.

[84]Ibid 410.

The same notion of dominant purpose underlies the decision in Ryde Municipal Council v Macquarie University (‘Macquarie University’).[85] In that case a small enclave within the Macquarie University campus was used for commercial purposes intended to provide convenient services to students and staff. The majority of the High Court (Gibbs ACJ, Stephen and Murphy JJ) held that it was open to the trial judge to find as a fact that the land was used by the University (although leased) and that it was used by the University ‘solely for the purpose thereof’.
[85](1978) 139 CLR 633.

Gibbs ACJ distinguished the notion of ancillary use from collateral or additional use.

However, it is proper to conclude from the evidence that the University arranged for the building to be erected on the market because the commercial enterprises which it was to contain were regarded as necessary or desirable for the functioning of a university under modern conditions. Although it is no doubt right to concentrate attention upon the use to which the particular parcel of land the subject of an appeal is put, that does not mean that the land is to be regarded in isolation from its surroundings. It is in my opinion relevant and important that the subject land in the present case is a small area near the very heart of the University, and that the construction of the building on the market, and its use for commercial purposes, were intended from the time when the University was first planned. The use of the land was wholly ancillary to, and directly facilitated, the carrying out of the principal objects of the University; it was not collateral or additional to those purposes. The land in question was rightly held to be used for the purposes of the University.[86]

[86]Ibid 644.

Stephen J (with whom Murphy J agreed) emphasised that the receipt of rental income was irrelevant.

It is to this complex of facts that the phrase ‘used by the University solely for the purposes thereof’ must be applied. That the market and its site is in fact made available by the University for the purpose of providing commercial and shopping facilities for staff and students cannot be doubted; that represents the mode in which the land is ‘used’ within the meaning of that word in par (fii). This use of the land by the University is the sole use which it makes of it. The fact that it receives rent from the tenants of the market does not detract from the exclusiveness of this use: it is, in my view, and in the light of the above findings of fact, no more than an incident of this exclusive use. The facilities available at the market are just such ‘facilities for its undergraduates and students and other persons’ (s 7(b)) as one might expect the council of a university established in recent years to regard as desirable for the purpose of ‘discharging its functions’ and the fact is that the council of this University has indeed at all times been of this view. The site of the market is, accordingly, in my view, land which is used by the University solely for the purposes thereof within par (fii) and is therefore exempt from municipal rates. The fact that rent is received from tenants is irrelevant, as is the fact that each of the several tenants may be said to make use of the particular portion of the market which is leased to it. This use is, like the receipt of rent by the University, no more than an incident of the use of the site for the provision of appropriate facilities to staff and students, which in turn is a proper purpose of the University.[87]

[87]Ibid 649–50.

It follows that the application of the Vesting Act does not require the cataloguing of different aspects of the use of the reserve as constituting separate uses such as a roadway, drain, carpark, landscaping, forecourt, public conveniences, life saving club and café. There may be areas of the drainage works, landscaping, life saving club and café to which the general public does not have access, but this does not of itself deprive them of their character as components of land used for public resort or recreation. The use of such spaces may be ancillary to and directly facilitate the use of the foreshore reserve as a place of public resort or recreation in the sense explained in the Macquarie University case.[88]
[88]Ibid.

In our view, these decisions strongly support the view that in deciding whether the proposed uses are consistent with the Vesting Act it is necessary to consider all the circumstances of such uses and to ask whether such uses are incidental to use of the land as a place of public resort or recreation.

In the course of oral submissions, the Association drew attention to the discussion by Gibbs ACJ in Macquarie University[89] of the passages in the judgments of Dixon J in Stephen v Federal Commissioner of Land Tax[90] and Windeyer J in Randwick Corporation which emphasise the need to direct attention to the actual use of a public reserve in deciding what is the character of that use. As Gibbs ACJ went on to explain, however, that proposition does not resolve the question of whether a lease is to be regarded as necessarily inconsistent with use by the owner for the purpose for which land is reserved.[91] The Macquarie University case is clear authority that a lease of part of the land may be incidental to the use of land as a whole for a public purpose.[92]
[89]Ibid 641–3.
[90](1930) 45 CLR 122.
[91]Macquarie University (1978) 139 CLR 633, 643.
[92]Ibid.

The Association places significant reliance on two cases in which the principles articulated by Windeyer J in Randwick Corporation have been applied. In Storey v North Sydney Municipal Council (‘Storey’),[93] land was subject to a restrictive covenant requiring it to be used for the purposes of a public reserve as defined by the Local Government Act 1919 (NSW). The definition of public reserve was in the same terms as that considered in Randwick Corporation.
[93](1970) 123 CLR 574.

The owner of the land proposed to lease part of the land to enable the erection of a scout hall and use of that part of the land for the purpose of scouting.

The High Court held that the grant of the lease would result in the total exclusion from this land of all members of the public other than members of the Boys’ Scouts Association and was contrary to the terms of the covenant. In our view, the present case is readily distinguishable from Storey. Storey concerned a separate private additional use of land reserved for public use. In the present case, the foreshore reserve will remain open to the public generally and the proposed café use and the use by the BLSC will be incidental to use of the foreshore reserve as a whole for public resort and recreation. As the Tribunal found, there will be a direct nexus between the proposed uses and public resort or recreation.

In Waverley Municipal Council v Attorney-General (‘Waverley’),[94] the council proposed to construct a two storey building on the foreshore of Bronte Beach. The ground floor was intended to provide public change rooms and conveniences. The upper floor was intended to accommodate the Bronte Splashers Swimming Club and be available for use on occasion by other community organisations.
[94](1979) 40 LGRA 419.

The New South Wales Court of Appeal held that the upper floor of the proposed building would not be used for public recreation and enjoyment because it would not be open to the public generally as of right.

Once again, we regard this case as readily distinguishable from the present case. The proposed accommodation of the Bronte Splashers involved a private collateral use of public land. The use of the BLSC is, as the Tribunal found, intended to directly assist and promote the use by the public of the foreshore. It will do this by providing life saving services enabling safe swimming. It will also provide a base for the conduct of activities such as Nippers programs and life saving training programs which are open to the public.

In the Waverley case no nexus could be established between the activities of the Bronte Splashers and the use by the public generally of the foreshore reserve. In the present case, it was plainly open to the Tribunal to find that such a nexus existed.

We turn then to the terms of proposed grounds 3, 4 and 5 of appeal. It is convenient to address proposed 4 first.

Proposed ground 4 — Ancillary use

Proposed ground 4 of appeal is:

The judge erred in the analysis and findings at [134]–[148], [154]–[155], and [157]–[161] by the grant of attention to the use of the entire subject land and whether the proposed uses were permissible ancillary uses of the entire subject land (whether under the Vesting Act or the planning scheme). In particular:
a.the proper task required the judge to ask whether the actual spaces the subject of the planning application were themselves to be used as places of public resort or recreation; and
b.the judge misdirected herself on the question of ancillary use in that her Honour did not give consideration to whether the proposed use of the building was within the Council’s power; and
c.the judge impermissibly relied on the decision of [Trustees of Royal Botanic Gardens].

The real question in this case arising with respect to the application of the Vesting Act is simply whether it was open to the Tribunal to find as a fact that the use of small parts of the vested land for the purposes of a café and life saving club would be components of the use of the land as a place of public resort or recreation.

In principle, it seems to us that facilities which require some isolation for the purpose of supervision either because they will invite uses which are themselves potentially dangerous (such as the use of a swimming pool, or rock climbing wall of the kind utilised at the Tokyo Olympics) or because they utilise mechanical plant or equipment which is potentially dangerous to strangers (such as a swimming pool, water slide, carousel or café) may be provided to and used by the public as components of use as a place of public resort or recreation. The fact that it may be necessary to exclude the public from parts of such facilities (eg the plant room of a swimming pool or the kitchen of a café) for reasons of public safety does not deprive the facility of its public character. Nor does such character depend on whether a public land owner such as the council adopts leasing, licensing or other arrangements to ensure proper management of the facility. The adequacy of such arrangements in terms of public safety may come before the courts from time to time,[95] but that does not mean that they are in principle objectionable as components of use of a place of public recreation.
[95]See, eg, Nillumbik Shire Council v Victorian YMCA Community Programming Pty Ltd (2016) VSCA 192.

In the present case, it was open to conclude that the proposed café use will be an element of the use of the foreshore in the sense explained by the Tribunal. It will be open to the public as an adjunct to enjoyment of the foreshore reserve as a whole and provide a focus to the central area provided by the proposed footpaths and forecourts. It might be thought to be particularly attractive to members of the public who cannot access the foreshore save via disabled access. Structures such as Kirby’s Kiosk at the end of St Kilda Pier have provided examples of such a component of a promenade for more than a century. In turn, it does not seem to us that the character of a café as an incidental element of use as a place of public resort or recreation will be materially affected by the question whether it is operated by a lessee or by a contractor pursuant to licence or by employees of the Council.

The Tribunal concluded that the life saving club use will also be ancillary to the use of the land as a place of public resort or recreation. It will be ancillary in a different sense in that it will assist and promote the use by the public of the foreshore reserve by providing safe swimming conditions. It might also be thought to offer opportunities for public recreation by facilitating the provision of Nippers and life saving training programs to the public generally.

Once again, it does not seem to us that the question whether such use is a legitimate component of the use of the land in accordance with the Vesting Act turns on the question whether the life saving club premises will be leased or operated on some other basis such as shared use supervised by professional life guards employed by the Council.

The essential nexus between the BLSC use and public resort or recreation is provided by the nature of the activities which will be conducted from the BLSC upon the foreshore reserve area available to the public. It does not turn upon the question whether the occupation of a small part of the foreshore reserve is governed by a lease.

The Association submits that the question of compliance with the Vesting Act falls to be assessed by looking solely at the spaces which will be occupied by the café and BLSC in isolation. We reject that submission. If the café were proposed adjacent to the Esplanade and it was apparent that it would operate essentially as a use independently of the use of the foreshore reserve, then such an approach might be justified. But the Tribunal’s conclusions of fact that the uses would be incidental to and comprise part of the use of the land as a whole for public recreation were well open to it.

Insofar as the decisions in Storey[96] and in Waverley[97] are relied on by the Association in this regard, each case was concerned with an area defined by the application of rating law. Moreover, both cases are distinguishable for the reasons we have sought to explain because they involved no relevant nexus to the use of the public reserve.
[96](1970) 123 CLR 574.
[97](1979) 40 LGRA 419.

Despite the decision in the Macquarie University case,[98] the Association is also bold to submit that the Royal Botanic Gardens case[99] was incorrectly decided by reference to principles of rating law. In this regard, it is sufficient to say that we are satisfied that the approach articulated by Menzies J in Randwick Corporation[100] and applied by Else-Mitchell J in the Royal Botanic Gardens case is correctly applied to the proper construction of the Vesting Act. In our view, the Macquarie University case confirms that the correct approach is to have regard to the use of the land as whole and ask whether in all the circumstances the elements objected to are in substance incidental to the use of the land as a whole as place of public resort or recreation.
[98](1978) 139 CLR 633.
[99](1965) 11 LGRA 407.
[100](1959) 102 CLR 54.

The question for this Court is whether it was open for the Tribunal to conclude that the proposed uses are legitimate elements of the provision of a place of public resort or recreation. As the trial judge concluded, it was so open.

Proposed ground 3 — The proposed leases

Proposed ground 3 of appeal is as follows:

The judge erred in the analysis and findings at [131]–[134], [153]–[155], and [157] by presupposing that the Council had the power to lease the subject land by reference to and analogy with the laws relating to the Crown’s power to deal with Crown Land in New South Wales, whereas the Council’s power to deal with the land was solely articulated in the Vesting Act.

Read as a whole, the trial judge’s analysis did not presuppose analogy with the Crown’s powers to deal with Crown land in New South Wales.

The Council’s power to lease part of the land is not solely conferred by the Vesting Act. It is derived from the fact that it is the owner in fee simple coupled with its powers pursuant to the current Local Government Act.[101]
[101]The Local Government Act 1958 which contains the successor to s 483 LG Act 1874 also contains a general power to lease land pursuant to ss 237 and 238. In turn, the Local Government Act 2020 contains successor provisions.

The case before the trial judge was not concerned with the question of the Council’s general powers. The issue with which the trial judge was concerned was the question whether a lease of the land was necessarily inconsistent with the specific provisions of the Vesting Act. For the reasons we have explained, no error has been demonstrated in her Honour’s conclusions in this regard.

In its written case, the Association directed particular attention to her Honour’s discussion of the judgment of Basten JA in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (‘Goomallee’s Case’).[102] That discussion concluded with the quotation of the following passage:

To make lands available for public recreation it may be necessary for a manager to have control of the land in order to maintain it. It may also be appropriate to allow for the construction of sporting facilities for public use. Other facilities may be constructed which are ancillary to public recreation, such as public toilets. It may be appropriate for areas to be fenced to control public access, for example by shutting gates at sunset. All of these activities on land and the vesting of land in bodies other than the Crown in order to carry out such activities could reasonably be held to be in furtherance of, or incidental to, the relevant public purpose.[103]

[102](2012) 84 NSWLR 219.

[103]Ibid 227 [33] (emphasis added by trial judge at Reasons [134]).

There are of course a number of distinctions between the facts in Goomallee’s Case and the present case, but this portion of her Honour’s judgment formed part of the analysis of a series of authorities from which the trial judge drew the summary of principles which we have quoted earlier in our decision. No error has been demonstrated in her Honour’s conclusions of principle relating to ancillary use.[104] Moreover, the above passage succinctly summarises the relevant concept.
[104]See [73] above.

Lastly, in this context it is submitted that the use by lessees of the café and the BLSC pavilion will constitute use by corporations and not for this reason be capable of being described as use and enjoyment by the ‘inhabitants’ of the former municipality of Brighton.

For the reasons we have sought to explain, it was open to the Tribunal to conclude that such use will be incidental to the public use of the review site as part of the whole of the foreshore reserve.

Further, and in any event:

·the planning permit granted by the Tribunal was with respect to proposed land uses and did not purport to authorise leases of the land; and
·the proposed uses could theoretically be carried out without the benefit of leases.

Proposed ground 5 — Private profit

Proposed ground 5 of appeal is:

The judge erred in the analysis and findings at [161], [166], [171], and [176] in failing to have proper regard to whether any monetary profits to arise from the proposed uses would be devoted to the public purpose rather than private purposes in the assessment of compliance with the Vesting Act. In particular, the judge impermissibly relied on the decision of [Trustees of Royal Botanic Gardens] in support of her Honour’s conclusions that private profits are a permissible consequence of ancillary use (at [161] and [166]).

This ground derives from the second component of the general principles stated by Windeyer J in Randwick Corporation.[105] For the reasons we have explained, we doubt that this consideration will necessarily be decisive in situations which are not concerned with rating.
[105](1959) 102 CLR 54.

More fundamentally however, there is no evidentiary basis upon which it can be concluded that the Council will derive a profit from the proposed uses which is not applied to the upkeep of the foreshore reserve. Indeed it is inherently improbable that the profit derived from the proposed leases will generate income which exceeds the cost of matters such as mechanical beach cleaning, litter collection, landscaping and other maintenance.

The BLSC is a not-for-profit organisation and there is no evidence that it will derive income from the use of the proposed pavilion as distinct from grants, donations and membership fees which it receives with respect to its general activities. Such matters do not in any event bear upon the nexus between the proposed use and public resort and recreation identified by the Tribunal.

The fact that the café may be operated at a profit (depending on the terms of the proposed lease) again does not deprive it of the quality of use as a component of a place of public resort or recreation. As the decision in the Macquarie University case demonstrates, the fact that lessees of small parts of public land may derive incidental profit from the use of those parts of the land does not preclude the conclusion their use is ancillary to the use of the land as a whole for a public purpose.

Conclusion

Having regard to our conclusions with respect to the threshold questions raised by proposed grounds 1 and 2 of appeal, we would refuse leave to appeal. We are not persuaded that the Tribunal was required to give effect to the Vesting Act as a matter of law. Nor in any event are we persuaded that the Tribunal’s conclusions as to the public recreational character of the proposed uses were not open to it as a matter of fact. No error has been demonstrated in the trial judge’s conclusions.

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APPENDIX A

APPENDIX B

APPENDIX C

SCHEDULE OF PARTIES

S EAPCI 2021 0030
BETWEEN:
BRIGHTON FORESHORE ASSOCIATION INC	Applicant
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BAYSIDE CITY COUNCIL	First Respondent
PATRICIA CARDEN	Second Respondent
SUSAN CARDEN	Third Respondent
KATHRYN MILLETT	Fourth Respondent
ELIZABETH MCQUIRE	Fifth Respondent
CAROLYN BRIGGS	Sixth Respondent
JANICE BATE	Seventh Respondent
SCOTT CHAPMAN	Eighth Respondent
ALISON JOSEPH	Ninth Respondent

[2021] VSCA 284

15 October 2021