Derring Lane Pty Ltd v Port Phillip City Council
[1998] VSC 182
•17 December 1998
SUPREME COURT OF VICTORIA
VALUATION, COMPENSATION & PLANNING LIST
Not Restricted
No. 7530 of 1998
DERRING LANE PTY. LTD. Applicant (A.C.N. 006 450 684) v PORT PHILLIP CITY COUNCIL Firstnamed Respondent AND VICTORIAN CIVIL AND Secondnamed Respondent ADMINISTRATIVE
TRIBUNAL
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JUDGE: Balmford, J. WHERE HELD: Melbourne DATE OF HEARING: 27 November 1998 DATE OF JUDGMENT: 17 December 1998 CASE MAY BE CITED AS: Derring Lane Pty Ltd v Port Phillip City Council MEDIA NEUTRAL CITATION: [1998] VSC 182
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Administrative Law - Planning - Application for leave to appeal a finding of VCAT - sole issue in the appeal for which leave was sought was whether or not a motel is a "residential building" for the purposes of clause 7-1.4 of the Port Phillip Planning Scheme - whether leave should be granted.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.148
Subdivision Act 1988 (Vic) s.18
Planning and Environment Act 1987 (Vic) s.80
Administrative Appeals Tribunal Act 1984 (Vic) s.52(1)
Milner v. Prima Construction & Development Pty Ltd (1992) 75 LGRA 25
Director-General of Social Services v. Chaney (1980) 47 FLR 80
St Kilda City Council v. Perplat Investments Pty Ltd (1990) 72 LGRA 378
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APPEARANCES: Counsel Solicitors For the Applicant Mr G. Peake D.M. Davidson For the Firstnamed Mr A. Finanzio Best Hooper
Respondent
HER HONOUR:
This is an application under section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) for leave to appeal against a finding of the secondnamed respondent (“VCAT”) delivered on 21 September 1998 by a Member of VCAT, sitting in the planning list of the administrative division of VCAT in application number 1998/24947. Section 148 reads, so far as relevant:
(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -
(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a
Vice President, whether with or without others; or (b) to the Trial Division of the Supreme Court in any other case -
if the Court of Appeal or the Trial Division, as the case requires, gives
leave to appeal.
(2) An application for leave to appeal must be made -
(a) no later than 28 days after the day of the order of the Tribunal; and
(b) in accordance with the rules of the Supreme Court.
Rule 4.08 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules (“the Rules”) provides that an application for leave to appeal from a decision of VCAT must be made to a Master. However, Rules 8.02 and 8.04 of the Rules together have the effect that an application for leave to appeal on a question of law from the planning list of the administrative division of VCAT is to be made to the Judge in charge of the Valuation, Compensation and Planning List of the Court.
By virtue of Rule 8.06, Order 4, so far as applicable to a proceeding in the Trial Division of the Court, applies to such an application. Rule 4.09 reads:
(1) On the hearing of the summons the Master may grant or refuse
leave to appeal.
(2) Without limiting paragraph (1), the Master may refuse leave to
appeal if satisfied that the applicant does not have a prima facie case
on appeal or that to refuse leave would impose no substantial
injustice.
(3) If leave to appeal is granted, the Master shall give directions with respect to the appeal.
The VCAT Act came into operation on 1 July 1998, effectively replacing the Administrative Appeals Tribunal Act 1984 (“the AAT Act”), which provided, in section 52(1), for an appeal as of right to this Court from a decision of the Administrative Appeals Tribunal (“the AAT”). Section 148(1) of the VCAT Act sets out no criteria to be taken into account by the Court in determining an application for leave, and counsel assured me that there was no guidance on this matter to be found in the Parliamentary Debates on the Bill for the VCAT Act. They did not refer me to any relevant authority of the Court. Thus the only relevant criterion is that laid down by Rule 4.09(2).
The relevant facts are not in issue. Briefly, the decision of VCAT relates to a building which was constructed in or about 1968 as a motel, and was used for that purpose until February 1997, when it was purchased by the applicant for conversion into flats. A permit to use and develop the land for flats was granted by the firstnamed respondent (“the Council”).
Application was then made to the Council for a permit to subdivide the land, and that permit was granted on 3 February 1998. The permit was subject to a condition pursuant to section 18(1)(b) of the Subdivision Act 1988 requiring the applicant to pay to the Council an amount of $49,500, being 4.5% of the site value of the land, as a cash contribution in lieu of setting aside on the plan an area for public open space. Pursuant to section 18(8)(a) of that Act, clause 7-1.4 of the Port Phillip Planning Scheme (“the planning scheme”) provides:
The following classes of subdivision are exempt from a public open space requirement, in accordance with section 18(8) of the Subdivision Act 1988:
Class 1: The subdivision of a residential building provided each lot contains part of the building. The building must have been constructed before 30 October 1989 or a planning permit must have been issued for the building before that date.
Class 2: The subdivision of a commercial or industrial building provided each lot contains part of the building.
The applicant applied to VCAT pursuant to Section 80 of the Planning and Environment Act 1987 (“the Planning Act”) for review of the condition. The Member found that the term “residential building” should be interpreted according to the plain ordinary meaning of the words, and (at paragraph 14 of his “Reasons for Order”) that “a motel does not come within the meaning of a residential building”. He went on to find at paragraph 18 under the heading “Tribunal’s Finding”:
The finding of the Tribunal in relation to the initial matter which was the subject of the submissions presented on the hearing, is that the building was a commercial building constructed prior to 30 October 1989 and thus the Responsible Authority has the power to require a public open space contribution pursuant to Section 18 of the Subdivision Act 1988”.
I make no comment on that finding. I am informed that the sole issue in the appeal for which leave is sought is said to be whether or not a motel is a “residential building” for the purposes of clause 7-1.4 of the planning scheme, so as to be exempt from the public open space requirement. That expression was considered by Byrne J in Port Phillip City Council v Domain Hill Properties Pty Ltd [1998] VSC 35, which was handed down on 14 August 1998, after the hearing of the application for review, but before the decision of VCAT, to which the Member referred, but on which he expressly made no comment.
Mr Peake, for the applicant, submitted that the purpose of the inclusion of the requirement for leave in section 148(1) of the VCAT Act was twofold. First, it was intended to ensure that unmeritorious and otherwise frivolous appeals did not proceed. Second, it enabled the regulation by the Court of appeals from interlocutory decisions, which had not been available under section 52(1) of the AAT Act, by virtue of such authorities as Milner v Prima Construction & Development Pty Ltd (1992) 75 LGRA 25 (and see Director-General of Social Services v Chaney (1980) 47 FLR 80, a decision of the Full Court of the Federal Court on section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cwlth) which was in similar terms to section 52(1) of the AAT Act). He submitted that the effect of the definition of “order” of the Tribunal in section 3 of the VCAT Act as including “interim order of the Tribunal” meant that an appeal under section 148(1) from “an order of the Tribunal” enabled an appeal against an interim order. He submitted further that the right of appeal should not be confined to cases raising legal questions of general importance as would be required on an application for special leave to appeal to the High Court.
On this question, Mr Finanzio submitted that the word “order” in the VCAT Act had to be read in the context of the powers conferred on VCAT, in any given case, by the relevant enabling enactment, in this case section 80 of the Planning Act, which provides:
80. An applicant for a permit may apply to the Tribunal for review
of any condition in a permit which the responsible authority has
issued or decided to grant to the person.
He submitted, if I understood him correctly, that the provisions of section 85 of the Planning Act set out the only powers of VCAT on an application under section 80, and that those powers did not extend to the making of an interim order of the kind here sought to be appealed. However, there are provisions in the VCAT Act itself empowering the making of “orders”, such as section 47 under which the Tribunal may order a statement of reasons to be given, section 49 under which the Tribunal may order the lodgement of copies of an additional statement, and section 50 under which the Tribunal may order a stay. There are others.
I accept the submissions of Mr Peake as to the requirement for leave, without, however, closing the door to other possible reasons for the enactment of that requirement.
Mr Peake submitted further that the finding of the Member was an “interim order of the Tribunal”, and that as he had made that limited finding only, preliminary to a further hearing, it had been necessary for the applicant to appeal against that finding within the “28 days after the day of the order” provided for by section 148(2)(a) of the VCAT Act. This was the result of the extension of the right of appeal to include interim orders.
Finally, Mr Peake submitted that the Member had relied, in interpreting the expression “residential building” upon the mode of operation of the motel, rather than upon developmental considerations, and in the context this raised a question of law. Mr Finanzio submitted that the meaning of “residential building” was a question of fact to be decided by the expert tribunal, and referred to St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378 and the remarks of Young CJ at 379 and Crockett J at 390.
In all the circumstances of this case, I am satisfied that the applicant has established a prima facie case on appeal and accordingly leave to appeal will be granted. The matters raised by Mr Peake and referred to above will be more appropriately determined on the appeal itself than on this application. The matter will be relisted for directions.
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