Mornington Peninsula Shire Council v Payne
[2001] VSC 337
•12 September 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 5415 of 2001
| MORNINGTON PENINSULA SHIRE COUNCIL | Appellant |
| v | |
| ELIZABETH LOUISE PAYNE | First Respondent |
| RONALD EMMANUEL | Second to Seventh Respondents |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 August 2001 | |
DATE OF JUDGMENT: | 12 September 2001 | |
CASE MAY BE CITED AS: | Mornington Peninsula Shire Council v Payne | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 337 | |
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PLANNING – Appeal from the Victorian Civil and Administrative Tribunal – the Tribunal set aside the appellant Council’s decision to refuse an application to grant a permit for the proposed use and development of land for a brothel – the requirement for the responsible authority or Tribunal to consider the effect of the operation of a brothel on children in the neighbourhood – the meaning and application of the expression “facility or place regularly frequented by children” under section 74(1)© of the Prostitution Control Act 1994.
PROCEDURE – The determination of questions of law under the Victorian Civil and Administrative Tribunal Act 1998 – Tribunal proceedings under a planning enactment without a judicial officer or a legal practitioner member – how questions of law arising in such proceedings may be decided – the referral of questions of law.
Interpretation of Legislation Act 1984 – section 35
Prostitution Control Act 1994 – sections 3, 4, 73, 74
Victorian Civil and Administrative Tribunal Act 1998 – sections 3, 33, 107, 148; clause 66 of Schedule 1
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
S v Crimes Compensation Tribunal [1998] 1 VR 83
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr AE Hooper QC | Deacons Lawyers |
| For the Firstnamed Respondent | Mr JH Gobbo QC with Mr PX Connor | Minter Ellison Lawyers |
HER HONOUR:
Introduction
This is an appeal on questions of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”), on 19 March 2001 in its Planning List. Leave to appeal was granted by this Court on 25 May 2001. The Tribunal was constituted for the purposes of the proceeding by Ms Kullen and Mr Avery, (“the two members”) neither of whom was a “judicial member” of the Tribunal or a “legal practitioner” in terms of the definitions in section 3 of the VCAT Act. There was no appearance before this Court for the second to seventh respondents.
By the decision under appeal the Tribunal set aside a decision of the appellant (“the Council”), as responsible authority under the Mornington Peninsula Planning Scheme, rejecting an application for a permit to use and develop land at 47 Glendale Avenue Hastings for a brothel and associated car parking, landscaping and signage; granting a permit for that use and development, subject to certain conditions; and directing that the permit issue.
The appellant’s grounds of appeal read as follows:
1.The Tribunal erred in law in that it failed to consider or properly consider, pursuant to its obligation under section 73 of the Prostitution Control Act 1994 [(“the Act”)] to do so the matters contained in sub-section (b) thereof.
2.The Tribunal erred in law in that it failed to consider the matters contained in section 73(b) of [the Act] as a discrete and separate issue to the issues it was required to consider pursuant to section 74 of that Act.
3.The Tribunal misdirected itself by deciding that the issues it was required to consider under section 73(b) and section 74 of [the Act] –
(a)were interrelated;
(b)were “best addressed together”;
(c)raised the same issue and/or issues.
4.The Tribunal misdirected itself by considering and deciding the issues it was required to consider under section 73(b) of [the Act] by reference to “the legal determination” made concerning a particular matter that arose with respect to the provisions of section 74(1)(c) of the Act contained in Appendix A to its decision.
5.The Tribunal erred in law in its interpretation and application of the provisions of section 73(b) of [the Act] in that it failed to consider the effect of the proposed brothel upon the children in the neighbourhood thereof.
6.The Tribunal misdirected itself by considering and deciding the issues it was required to consider under section 73(b) of [the Act] by holding that the consideration of [the] effect of the proposed brothel upon the children in the neighbourhood was dependent upon the number of such children present in the neighbourhood.
7.The Tribunal misdirected itself by wrongly holding that the requirement contained in section 73 of [the Act] that the Tribunal must consider and decide upon the effect of the proposed brothel upon the children in the neighbourhood was qualified by a need to first find that the neighbourhood was ”regularly frequented” or “heavily used” by children.
8.The Tribunal had no jurisdiction to refer the question identified in paragraph 9.17 of its decision, not being a question of law, to a legal member pursuant to clause 66 of Schedule 1 of [the VCAT Act].
9.The Tribunal erred in law in that it failed to decide the question identified in paragraph 9.17 of its decision itself.
10.The interpretation of the words “regularly frequented” contained in section 74(c) of [the Act] as meaning “a normal, habitual or planned occurrence that happens often” of the legal member, and/or its adoption by the Tribunal, was wrong in law.
11.The decision of the legal member, and/or its adoption by the Tribunal was wrong in law in that there was no warrant for including any component of recurrence at short intervals or “often” into the construction of the words “regularly frequented” as they appear and are to be applied in section 74(c) of [the Act].
12.The decision of the legal member, and/or its adoption by the Tribunal, was wrong in law in that it failed to include any consideration of or make any allowance for the regularity of the frequenting in relative terms to the activity in which the children were involved or in relative terms to the period over which such activities extended.
13.The legal member exceeded his jurisdiction in deciding the matters he did in paragraph 3.10 of Appendix A, and/or its adoption by the Tribunal was wrong in law, in that no such issue or question was referred to him pursuant to clause 66 of schedule 1 of [the VCAT Act] for his opinion.
14.The Tribunal erred in law in that it failed to decide and order that the use and development allowed by the permit it has granted and directed to be issued should be in accordance with endorsed plans and in that it failed to identify such plans and the means by which and circumstances in which such plans should be endorsed.
Sections 73 and 74 of the Act read as follows, so far as relevant:
73.Matters to be considered by responsible authority
Without limiting section 60 of the Planning and Environment Act 1987, before deciding on an application for a permit for a use or development of land for the purposes of the operation of a brothel, the responsible authority must consider -
(a)any other brothel in the neighbourhood;
(b)the effect of the operation of a brothel on children in the neighbourhood;
(c)except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, whether the land is within 200 metres of a place of worship, hospital, school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreational or cultural activities and, if so, the effect on the community of a brothel being located within that distance of that facility or place;
.. .
74.Restriction on granting of permits
(1)The responsible authority must refuse to grant a permit for a use or development of land for the purposes of the operation of a brothel if -
.. .
(c)except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, the land is within 200 metres of a place of worship, hospital, school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreational or cultural activities; or
“Child” is defined in section 3 of the Act as meaning a person under the age of 18 years. The objects of the Act are set out in section 4 and include:
(d)to seek to ensure that brothels are not located in residential areas or in areas frequented by children;
Grounds 1-7
Grounds 1-7 are chiefly concerned with the Tribunal’s approach to section 73(b) of the Act. Section 73 requires consideration of the matters therein referred to; section 74 requires refusal of the permit if any of the circumstances there described exist. Given the almost identical terms of sections 73(c) and 74(1)(c), it is difficult to see what role section 73(c) has to play, because if the circumstances there described are present, the permit must be refused under section 74 and there is nothing to consider under section 73. Mr Gobbo suggested that it could have relevance where the variation of an existing use was in issue, rather than an application for a permit. However that is not, of course, the case here.
It is convenient to set out here a number of principles relevant to the consideration of these grounds of appeal.
Section 35 of the Interpretation of Legislation Act 1984 requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred. Sections 73(b) and (c) and 74(1)(c) can be seen to relate directly to the object in section 4(d) which is set out above.
The High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272:
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language . . . nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
There are many other authorities to similar effect. The principle was expressed by Fullagar J in relation to a predecessor of the Tribunal in Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65, where his Honour, after referring to authorities, said at 67:
…the cases show, as one would expect, that decisions of the [Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.
Also relevant is the well-known passage from Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 where Stephen J said at 11:
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
Grounds 1-7 are properly considered in the light of those general principles. A number of the grounds, and of Mr Hooper’s submissions in support of them, can be seen to be based on the manner of arrangement of the Tribunal’s reasons for decision (“the reasons”), a matter to which the passages cited from Liang and Michaelis Bayley have particular relevance.
Grounds 1 and 5 turn on the application of the principle enunciated by Barwick CJ in Kentucky Fried ChickenPty Ltd v Gantidis (1979) 140 CLR 675 at 679-680:
Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some circumstances it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.
In paragraphs 9.2 to 9.11 of the reasons the Tribunal considered the use which children made of Glendale Avenue and likely use by children in the future, as well as the location, in relation to the site of the proposed brothel, of facilities frequented by children. It thus considered the effect of the operation of the proposed brothel on children in the neighbourhood as it was required to do by section 73(b), its conclusion being that the effect would be negligible. Grounds 1 and 5 accordingly fail.
I note Mr Hooper’s submission that if one child in the neighbourhood is likely to be adversely affected by the operation of the brothel, then that must be a serious consideration and a negative consideration against the grant of a permit. But this is not what section 73(b) says. To repeat, section 73(b) simply requires the responsible authority or the Tribunal “to consider the effect of the operation of a brothel on children in the neighbourhood”. It makes no requirement as to what should be the result of that consideration. That decision is left to the responsible authority or the expert Tribunal in the exercise of its discretion and in the light of the object of the Act as appearing in section 4(d).
Grounds 2 and 3 relate to matters within the discretion of the Tribunal and do not appear to me to raise any question of law. It is accordingly not necessary for me to consider them further.
Ground 4 is best examined in the context of grounds 8 and 9.
As to ground 6, the Tribunal made no such explicit finding. It was, in any case, open to it to consider, among other matters relevant to section 73(b), the number of children present in the neighbourhood.
As to ground 7, again the Tribunal made no such explicit finding, and in any case the extent to which children used Glendale Avenue was a matter relevant to its consideration of section 73(b).
Grounds 4, 8, 9 and 13
The circumstances on which these grounds are based appear from paragraphs 9.15 to 9.19 of the reasons, which follow some consideration of the meaning and application of the expression “place regularly frequented by children for recreational or cultural activities” in section 74(1)(c). Those paragraphs relevantly read:
9.15Both the Council and the Applicant agreed to leave the Presiding Member to decide this question of interpretation, and to not require the matter to be referred to a legal member for decision (pursuant to Clause 66 of Schedule 1 of the VCAT Act).
9.16However, given the fact that not all parties to the appeal were present at the hearing on the second day to give their consent to this course of action, the Tribunal was reconstituted with a legal member. Further submissions on this question of mixed fact and law were heard on 2 November 2000. The findings of the legal member in relation to this question are contained at Appendix A.
9.17The questions of law and mixed fact and law submitted to the legal member were:
1.Whether industrial premises where school students are placed annually for work experience constitute “a facility or place regularly frequented by children for recreation[al] or cultural activities” pursuant to section 74(1)(c) of [the Act].
2.If this is the case, whether the proposed use and development of the subject land for a brothel is prohibited pursuant to section 74(1)(c) of [the Act].
9.18The legal member . . . stated:
In short, I do not believe that work experience is a planned or normal process for a business in the Glendale Avenue area that occurs often; therefore, I do not consider that work experience students can be said to have “regularly frequented” the Glendale Avenue area.
This makes it unnecessary for me to decide if work experience can be described as a “recreational or cultural activity”.
9.19Therefore we have concluded that we are able to grant a permit for the proposed use and development for a brothel on the subject land, as the circumstances described in section 74(1)(c) of [the Act] have not been established in relation to the subject land.
Mr Castle, a planner in the employ of the Council, deposes that on 2 November 2000 the Tribunal was constituted by the two members and a Senior Member.
The provisions of the VCAT Act dealing with the determination of questions of law are section 107 and, in the case of a proceeding under a planning enactment, clause 66 of Schedule 1. The proceeding before the Tribunal arose under the Planning and Environment Act 1987, which is a “planning enactment” for the purposes of Schedule 1. Section 107 reads so far as relevant:
107.Dealing with questions of law
(1)A question of law arising in a proceeding must be decided by a judicial member or a member who is a legal practitioner.
.. .
(3)If a question of law arises in a proceeding where the Tribunal is constituted by a member or members who are not judicial members or legal practitioners -
(a)the question must be decided by another member who is a judicial member or legal practitioner; and
(b)for that purpose only, the Tribunal in the proceeding is to be reconstituted to include that other member.
(4)In this section, “question of law” includes a question of mixed law and fact.
Clause 66 of Schedule 1 of the VCAT Act reads:
66.Questions of law
(1)Despite section 107(1), if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided –
(a)by the presiding member if the parties agree; or
(b)in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.
(2)Section 107(3)(b) does not apply to a proceeding under a planning enactment.
The combined effect of those two provisions is that if, as in this case, the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided by any one of three procedures, namely:
§by another member who is a judicial member or legal practitioner; or
§by the presiding member if the parties agree; or
§by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.
Further, if the question is decided by another member who is a judicial member or legal practitioner, the Tribunal is not required to be reconstituted to include that other member. However, if the question is decided by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a member who is a legal practitioner but not a judicial member, that member must be formally nominated by the President.
The Tribunal stated at paragraph 9.16 that “the Tribunal was reconstituted with a legal member”, and the evidence of Mr Castle was effectively the same. “Legal member” clearly refers to what the legislation defines as “a member who is a legal practitioner”. However, the legislation does not provide for the reconstitution of a Tribunal to include a member who is a legal practitioner when, as in this case, the Tribunal is hearing a proceeding under a planning enactment. Indeed, it is apparent that neither the two members of the Tribunal, nor the legal practitioner in question, proceeded on the basis that the Tribunal had in fact been reconstituted. The formal order of the Tribunal, the effect of which is summarised in paragraph 2 above, was signed only by the two members. The Senior Member, who was a legal practitioner, (“the legal practitioner”) signed a separate document, annexed to the reasons and described as Appendix A. I take it that the use of the expression “the Tribunal was reconstituted” was an inadvertent error; it does not affect the validity of what was done.
The legal practitioner stated at the commencement of Appendix A that he had been “nominated by the Deputy President, Planning List, Mr RC Horsfall, pursuant to clause 66(b) of Schedule 1 of [the VCAT Act] to decide questions of law or mixed fact and law arising in this proceeding”. Several issues arise from this statement. To begin with, that is not what clause 66(1)(b) allows. Clause 66(1)(b) provides for the decision to be made by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President. That is in fact what happened. The legal practitioner formed an opinion, which appears in paragraph 3.8 of Appendix A, set out in paragraph 33 below; he does not there express himself as having decided the questions, but uses the expression “I do not consider”, which is consistent with the formation of an opinion. And at paragraph 9.19 of the reasons, set out in paragraph 19 above, the question there in issue is expressed to have been decided by the two members, but in accordance with the opinion of the legal practitioner. It was, of course, open to the legal practitioner, by virtue of section 107(3)(a), to decide the question of law, but that is not what was done here.
The nomination executed by the Deputy President is, in any case, not before me. Nor is there any evidence as to whether the Deputy President held an appropriate delegation from the President, pursuant to section 33(1) of the VCAT Act, of the power of nomination under clause 66(1)(b). However, applying the presumption of regularity, I have considered this matter on the basis that the Deputy President held such a delegation.
As to the terms of the nomination, I note that had it been intended that the legal practitioner decide the questions of law, pursuant to section 107(3)(a) of the VCAT Act, it would not have been necessary for him to have been nominated by the President or his delegate; section 107(3)(a) does not require such a nomination. Therefore, and bearing in mind what was in fact done by the two members and the legal practitioner, I must assume that the nomination was a nomination to form an opinion, in terms of clause 66(1)(b), and not a nomination to decide the questions, as stated by the legal practitioner.
As the questions put in paragraph 9.17 were, in effect, answered by the Tribunal itself, albeit in accordance with the opinion of the legal practitioner, the Tribunal did not fail to answer those questions itself, and ground 9 fails.
Grounds 4 and 8 both turn ultimately on whether the questions referred to the legal practitioner were questions of law or of mixed law and fact. As to that question, I would refer to the extensive consideration of the distinction between a question of law and a question of fact by Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 86-93 and particularly at 88-89. Each of the separate words in the statutory description “facility or place regularly frequented by children for recreational or cultural activities” in section 74(1)(c) of the Act may be said to be used in its natural and ordinary sense, so that its interpretation would be a question of fact. However, in combination those words give rise, in my view, to the kind of uncertainty which leads to the situation where “the resolution of that problem of construction is a question of law, not fact” (S v Crimes Compensation Tribunal at 88). Whether industrial premises where school students are placed annually for work experience fall within that statutory description is, however, a question of fact.
Accordingly, I am satisfied that the first question put to the legal practitioner (see paragraph 19 above) was a question of mixed law and fact. The second question is clearly a question of law. That being so, the Tribunal had jurisdiction to refer those questions to the legal practitioner for his opinion, so that ground 8 fails. For the same reason, it was correct for the Tribunal to decide those issues, as it did, in accordance with the opinion of the legal practitioner, pursuant to clause 66(1)(b) of Schedule 1 of the VCAT Act, so that ground 4 fails.
The preceding paragraph assumes that section 107(4) of the VCAT Act, providing that “in this section ‘question of law’ includes a question of mixed law and fact” has application also to clause 66 of Schedule 1 of that Act. Clause 66, making specific provision for proceedings under planning enactments, appears to me to be intended to be supplementary to section 107, given that it clearly presupposes the existence and operation of that section. Two provisions of that section are expressly referred to in clause 66, one with the unusual caveat “Despite section 107(1)” and the other with the provision that “Section 107(3)(b) does not apply to a proceeding under a planning enactment”. Thus matters in section 107 intended to be excluded in the operation of clause 66 are excluded in express terms. While I note that the definition of “question of law” is expressed to apply only in section 107, the relationship between the two provisions, section 107 and clause 66, is such that in my view the intention of the legislature must have been that the same definition is to apply in clause 66. There would be no reason for this not to be the case, and counsel did not suggest that it was not the case.
The finding of the legal practitioner which appears in paragraph 3.10 of Appendix A did not relate to the specific questions before him, and was not adopted by the Tribunal, although it is referred to in passing in paragraph 9.5 of the reasons. Accordingly ground 13 has no relevance to the decision under appeal.
Grounds 10, 11 and 12
These grounds are concerned with the interpretation of the expression “facility or place regularly frequented by children for recreational or cultural activities” appearing in section 74(1)(c) of the Act. I have already found that the construction of that expression involves a question of law in terms of the definition in section 107(4) of the VCAT Act. The relevant passages from Appendix A, the opinion of the legal practitioner, read:
3.3Regularly frequented is the verbal phrase of the prohibition in the subsection, where regularly is the adverb describing what form of frequented is taking place. The roots of both of these words, being regular and frequent, have time based meanings. Regular meaning periodic or observing fixed times. Frequent meaning happening or occurring at short intervals, often. I consider if both words are given their time based meaning the verbal phrase “regularly frequented” would be tautologous and one of the words does not serve any real purpose. The phrase should be construed as a whole, see Statutory Interpretation in Australia – 4 ED, Pearce and Geddes at [4.14]; further, all words in a statute must be taken to have a meaning and effect: Pearce [2.12] supra.
3.4The primary object of the use of the phrase is to bring into the context of the prohibition some time based description; therefore I consider the description or definition of the time base should be defined by the verb itself and how that time base is modified or typified should be the task of the adverb. The time base meaning of frequented means often and I accept the further description of the word in the Macquarie Dictionary of happening or occurring at short intervals.
3.5Regularly describes the type of frequenting; therefore, the meaning which should be given to the adverb regularly would be its non-time based meaning. From the Macquarie Dictionary this would mean: - “According to plan or custom”, I would also accept habit as well as plan or custom.
3.6This gives an interpretation of regularly frequented as a normal, habitual or planned occurrence that happens often. And, when the verbal phrase is viewed within section 74 as a whole I consider this interpretation to be appropriate to the intention of the section.
In paragraph 3.7 he considered the evidence as to students on work experience in the Glendale Avenue area and continued:
3.8This is an ad hoc arrangement between the local businesses and the school. It is not regularised or planned on an annual basis between the school and specific businesses. The normal and by far the most significant number of work experience placements take place for a week at a time in July and November of each year, I do not regard this as often or recurring in short periods of time. In short, I do not consider that work experience is a planned or normal process for a business in the Glendale Avenue area that occurs often; therefore, I do not consider that work experience students can be said to have “regularly frequented” the Glendale Avenue area.
3.9This makes it unnecessary for me to decide if work experience can be described as a “recreational or cultural activity”.
I do not regard the manner in which the legal practitioner approached the questions before him as satisfactory. He made no reference to the purpose of the legislation, as to which see paragraphs 4 and 7 above. He appears to have confused the adjective “frequent” (pronounced with the accent on the first syllable) with the verb “to frequent” (pronounced with the accent on the second syllable). The word “frequented” in the expression “regularly frequented” is not the adjective, but the past participle of the verb, used adjectivally. The definition of the adjective “frequent” is not relevant to the meaning of the verb “to frequent”. In paragraph 3.3 he cites definitions for which he gives no authority. From paragraphs 3.4 and 3.5 it appears that he has consulted the Macquarie Dictionary, although he does not indicate what edition he used. I note also that as a matter of grammar the adjectival phrase “regularly frequented” cannot be interpreted, as is purported to be done in paragraph 3.6, as equivalent to the noun phrase ”a normal habitual or planned occurrence that happens often”.
I was not directed by counsel to any decision of a court which would throw light on the meaning of the expression “regularly frequented”. The third edition of the Macquarie Dictionary, published in 1997, defines the verb “to frequent” in three closely similar ways as:
To visit often; go often to; be often in.
That edition gives two definitions of “regularly” as follows:
1. at regular times or intervals.
2. according to plan, custom, etc.
Either of those definitions of the adverb “regularly” can be read with the definition of the verb “to frequent”. In each of the three definitions of the verb “to frequent” the adverb “often” appears, and it is clearly a significant component of the meaning attributed. I note here that those definitions indicate that there is no tautology in the expression “regularly frequented” (see paragraph 3.3 of Appendix A, above).
In considering which of those two definitions of “regularly” is intended to have application to the phrase “regularly frequented”, it is significant that the word “regularly” does not appear in the object set out in section 4(d) of the Act (see paragraph 4 above). In any case it does not appear to me to be particularly relevant to section 4(d) to consider whether children are present “at regular times or intervals”. On the other hand, if children are present “according to plan or custom”, then their presence can be seen as something of which those considering the establishment of a brothel should be aware because it is a characteristic of the “facility or place” in question. This factor would assist in the examination by the responsible authority of the relevance of section 73(c) and 74(1)(c) to any application for the use and development of a piece of land for a brothel. That view leads me to adopt the second meaning of “regularly” cited in paragraph 35 above, rather than the first, so that “a place regularly frequented by children” would come to mean “a place which children visit often, or go to often, or where children are often found, and where this occurs according to plan or custom”.
It will be apparent from the foregoing that I regard ground 10 as established. However, when the interpretation which seems to me correct is applied to the evidence before me as to work experience in the Glendale Avenue area, which it is not necessary to set out here, I reach the same conclusion as did the legal practitioner, applying an interpretation which I have found to be incorrect. It cannot be said, on the evidence, that students on work experience visit often, or go to often, or are often found in, the Glendale Avenue area and accordingly they cannot, in my view, be said to have “regularly frequented” the area.
That being so, the formation by the legal practitioner of an opinion which was wrong in law as to the meaning of the expression “regularly frequented” cannot be regarded as a vitiating error of law in terms of the well known passage from Portland Properties Pty Ltd vMelbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18 where Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Town Planning Appeals Tribunal might lead to an order nisi for review being made absolute:
. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
In view of what I have already said about the word “often” in the definition of the verb “to frequent”, it will be apparent that ground 11 fails. In view of what I have already said about the definition of “regularly” it will be apparent that ground 12 fails.
I should say that while the opinion formed by the legal practitioner is not set out in terms directly related to the questions which were put to him, it is possible to infer from the words which he used an opinion that “industrial premises where children are placed annually for work experience” do not constitute a “facility or place regularly frequented by children”. The expression of that opinion answers question 1 and leads logically to the answer to question 2 which was adopted by the two members in paragraph 9.19 of the reasons. Nevertheless, it would have been preferable, for the avoidance of any doubt or confusion as to his meaning, for him to have answered the questions precisely. His task was to form an opinion on those questions of law, pursuant to clause 66(1)(b) of Schedule 1 of the VCAT Act, no more and no less.
Ground 14
Mr Hooper indicated that this was not a ground of appeal which should lead, if successful, to the setting aside of the decision of the Tribunal. However, it related to an error in drafting which he submitted ought to be corrected by the Court formally allowing the appeal in order to vary the drafting of the permit. Mr Gobbo, in response, advised the Court that his instructions were that his client was content with the permit and plans in the form in which they stood, and would prefer that no change be made. That being so, I propose to take no action in this regard.
Conclusion
For the reasons given, the appeal is dismissed. Counsel may wish to make submissions as to costs.
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