Royal Park Protection Group Inc v Urban Camp Melbourne Co-operative Ltd - [1998] VSC 161

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 5969 of 1998

THE ROYAL PARK PROTECTION Plaintiff
GROUP INCORPORATED
v

W.H. TERRILL and R.J. BALL First Defendant
- and -

CITY OF MELBOURNE Second Defendant
- and -

URBAN CAMP MELBOURNE CO- Third Defendant
OPERATIVE LIMITED

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JUDGE: Eames, J.
WHERE HELD: Melbourne
DATE OF HEARING: 23 November 1998
DATE OF JUDGMENT: 11 December 1998
CASE MAY BE CITED AS: The Royal Park Protection Group v Urban Camp
Melbourne Co-operative & Ors
MEDIA NEUTRAL CITATION: [1998] VSC 161

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Judicial Review - Planning Appeal - Royal Park - land and buildings reserved under Crown Land (Reserves) Act 1978 to be used for a public park and offices and conveniences connected with such park - responsible authority granting permit under Melbourne & Metropolitan Planning Scheme pursuant to Planning and Environment Act 1987 for extensions of accommodation to be used as an urban camp - whether use for which permit sought under planning scheme required to be consistent with reservation - amendment to permit application upon appeal before Administrative Appeals Tribunal - Planning Appeals Act 1980, s.53 - Tribunal member not legally qualified - whether amendment application and permit application were obliged to have been heard by legally qualified Member - Administrative Appeals Tribunal Act 1984, s.47(1).

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APPEARANCES: Counsel Solicitors
For the Plaintiff Ms F. O’Brien Grando & Breheny
For the Defendant Mr. C. Wren Best Hooper

HIS HONOUR:

Urban Camp Melbourne Co-Operative Limited ("Urban Camp"), which is the third defendant in these proceedings (but the only party appearing to resist the plaintiff's claim brought by originating motion), is a non-profit co-operative which provides low cost accommodation to school groups, sporting associations and community groups. It was established in 1986 and operates from a building known as Anzac Hall, which is an historic structure remaining from Camp Pell, at Royal Park, and which also has some modern annexes containing service areas. Urban Camp resolved to increase the size of its accommodation facilities and in order to do so it made application, dated 9 July 1997, to the City Of Melbourne for a planning permit under the Melbourne and Metropolitan Planning Scheme. The primary effect of the proposed alterations would have been to increase the number of beds from 94, in dormitory accommodation, to a total of 136, with some private rooms now being provided.
Urban Camp gave notice, dated 28 August 1997, to interested parties, and the terms of that notice stated that a permit was being sought to "carry out alterations and additions to existing building for use as an Urban Camp facility". That description of the purpose for which the permit was sought was slightly at odds with the terms of the application for a permit, itself, which had stated, as to "the way in which the land is proposed to be used or developed", that it was for "alterations and additions to existing camp facility". The application for a planning permit was successful, and on 18 September 1997 the City of Melbourne, as the responsible authority, granted a permit to "carry out alterations and additions to existing building for use as an Urban Camp facility". Various conditions were attached to the permit.
The Royal Park Protection Group Incorporated ("the Group") had opposed the grant of the permit. The Group comprises interested residents of Parkville, and other suburbs, whose main aim was the protection of the Royal Park as open space park land and who opposed alienation of the park for commercial interests. The Group appealed from the decision of the City of Melbourne to the Administrative Appeals Tribunal. Respondents to the appeal were the City of Melbourne and Urban Camp, both of which were represented by counsel. That appeal was fixed for hearing before Mr N.H. Terrill, a Member who was not legally qualified. On the day before the hearing counsel for the Group wrote to request that a legally qualified Member be appointed to conduct the appeal. Given the short notice of the request, it was not possible to arrange for that to occur.
At the commencement of the appeal before Mr Terrill counsel for the Group again urged that a legally qualified member conduct the appeal, and stated that the Group did not consent to a non-legally qualified member sitting. A preliminary issue then arose, because the application for a permit was expressed to be solely an application for a development permit, and not for a use permit. Section 47(1) of the Planning and Environment Act 1987 provides that where a planning scheme requires that a permit be obtained for use or development (which terms are subject to separate definitions under s.4 of the Act) or for a combination of use and development, then the application must be made in accordance with regulations, and provide the information required by the planning scheme. On behalf of the Group it was submitted a new application had to be made, applying for a use permit.
Counsel for Urban Camp denied that a use permit was required but counsel for the City of Melbourne agreed that a use permit was necessary and, reluctantly, Urban Camp, through its counsel, then applied to amend the application which was subject to the appeal, so as to also make it an application for a use permit. Counsel for the Group opposed that application and submitted that to amend the application would amount to transforming the application, on appeal, to an entirely new matter, which would be unfair to the Group, which had come to the hearing only to pursue an appeal concerning a development permit. Over the objection of counsel for the Group, Mr Terrill permitted that amendment to be made.
It is not entirely clear on the evidence before me whether it was expressly contended that Mr Terrill, being a non-lawyer Member, was, on that account, disqualified from determining the question of the amendment itself. Although counsel for the Group may have intended that the objection to Mr Terrill conducting the hearing should extend to his consideration of the amendment application, I do not think that that question was explicitly addressed in terms of whether Mr Terrill was debarred from deciding the amendment issue, on the basis that that question, of itself, raised questions of law.
However, it was clear that objection was taken to Mr Terrill determining the substantive issues raised in the appeal, on the basis that the issues were issues of law. By virtue of the terms of s.47(1) of the Administrative Appeals Tribunal Act 1984, a non-legally qualified Member could not determine questions of law, including any question as to whether an issue involved a question of law. Section 47(1) reads:

“47. Manner in which questions to be decided

(1) A question of law arising in a proceeding before the Tribunal (including the question whether a particular question is one of law) shall be decided:
(a)        if the member presiding is the President or a Deputy President or a legal practitioner, in accordance with the opinion of that member; or
(b)        where the proceeding is before the Planning or Land Valuation division and the division is constituted with a legal practitioner, in accordance with the opinion of that legal practitioner; or
(c)         where the proceeding is before the Planning or Land Valuation division and the division is constituted without a legal practitioner -

(i)

if the parties present or represented at the hearing consent, in accordance with the opinion of the member presiding; or

(ii)

in accordance with the opinion of the President or of a Deputy President or member who is a legal practitioner nominated by the President.”

In the light of the objections to the matter being dealt with by a non-legally qualified Member, Mr Terrill announced that he would consider "the merits" of the appeal and would refer to a Deputy President of the Tribunal what, later, in his written Determination he identified to be the legal issue, namely, whether "the grant of the permit is misconceived at law".
Having resolved on 11 February 1998 to determine the merits of the application, Mr Terrill heard submissions and witnesses on that issue, and then adjourned the case with a timetable for the three parties to file written submissions on law. Upon receipt of those submissions they were forwarded, on 11 March 1998, to Deputy President, Mr R.J. Ball. The three written submissions were quite extensive. The first submission to be filed was that of the Group, and in its submission the legal question was identified in terms different to those later used in the Determination. The question addressed by counsel for the Group was whether the proposed use was inconsistent with the terms on which the land was reserved pursuant to the Crown Land (Reserves) Act 1978, and whether, therefore, the responsible authority or the Tribunal had power to grant a permit for such use. After delivery of the submission by the Group the two other parties to the appeal then responded to that submission in their own written submissions.
The submission to the Tribunal by the Group contended that the Tribunal was obliged, first, to ensure that no permit for use be granted unless the use was consistent with the reservation of the land made pursuant to the Crown Land (Reserves) Act (that reservation was in terms that the land was to be used as "park land and offices and conveniences connected with such park"). It was contended that the proposed use identified by the Urban Camp application was clearly not consistent with the reservation in that Act.
Both the City Of Melbourne and Urban Camp contended that the Tribunal was not required to ensure that the proposed use was consistent with the reservation of the land under the Crown Land (Reserves) Act (which reservation hereafter will more usually be referred to simply as "the Crown reservation"), because any dealings with land under that Act were entirely separate to the planning process being performed under the planning scheme, which was a scheme introduced under the terms of the Environment and Planning Act. If a person who had been granted a permit under the planning scheme was also obliged by the terms of the Crown Land (Reserves) Act to obtain additional permissions or approvals pursuant to that Act, from persons having responsibilities under that Act, then, so it was submitted, that process was not the concern of those who administered the planning scheme.
Whilst the City of Melbourne and Urban Camp were in general agreement, there was a difference in their submissions in that the submission of the City Of Melbourne did not address the question whether there was, in fact, an inconsistency between the proposed use stated in the permit under the planning scheme, on the one hand, and the Crown reservation, under the Act, on the other hand. The Urban Camp submission, did so, briefly, and claimed that there was no inconsistency. Both submissions, however, accepted that by amending its application to seek a use permit Urban Camp had conceded that the use of the land as an urban camp was not consistent with the separate reservation of the same land under the terms of the planning scheme, i.e. as "open space - public existing". As will be seen, the mere fact that a proposed use is inconsistent with the planning scheme reservation does not preclude the grant of a permit; indeed, it was argued that that is the only instance where a permit would now be required to be obtained under the planning scheme, all other uses being permitted.
On 20 March 1998 Mr Ball returned the three submissions to Mr Terrill, proffering, the cryptic opinion that he agreed with the opinions of the authors of the submissions for the City of Melbourne and Urban Camp. Without any further hearing being conducted, the Tribunal then published its written reasons and determination, dated 31 March 1998, with both Mr Terrill and Mr Ball being signatories. Although the determination does not expressly so state, it seems clear that the reasons articulated in the determination are in fact the work of Mr Terrill, and not of Mr Ball.
The procedure which was adopted for obtaining a legal opinion, and which I was told was not uncommon in the Tribunal, reflected both the statutory imprecations that the Tribunal dispose of matters without undue formality, and was also done in purported compliance with s.47(1)(c) of the Administrative Appeals Tribunal Act 1984.
No complaint was made to me concerning the procedure adopted pursuant to s.47(1)(c), save to the extent that it was submitted by the plaintiff Group that rather than refer one specific legal question to the Deputy President, the entire matter should have been heard and determined by a legally qualified member, including the question of the amendment to the application, since all of the issues which had to be addressed in the appeal were questions of law.
Whilst there is good sense in applying s. 47(1) of the Administrative Appeals Tribunal Act without over-elaborate formality there is a problem where, as here, the actual question of law which is being referred is not precisely identified and where, therefore - in the absence of any reasons for decision by the legally qualified member - it is difficult to be certain what legal question was actually answered by the opinion, and the reasons for the opinion. (I am not to be taken to suggest, however, that elaborate reasons were required to be delivered. As I will later discuss, the Tribunal has statutory authority to adopt a less formal approach to the conduct of hearings before it than would be the case of a court of law. I observe, however, that more precise identification of the referred question, and the answer to the question - with some brief reasons - might be beneficial, without any loss of appropriate expedition of the hearings).
On 31 March 1998 the Tribunal (identified as comprising both Mr Terrill and Mr Ball, and who, jointly, as the Tribunal, constitute the first defendant to these proceedings) made a Determination dismissing the appeal, and directing that a permit issue "for alterations and additions to existing buildings and to use the alterations and new building and land upon which buildings are situated for the Urban Camp facility". The permit was subject to the same conditions as had originally been imposed.
The Group now applies to this Court by Originating Motion under Order 56 of the Supreme Court Rules, seeking remedies in the nature of certiorari and mandamus so as to quash the decision of the Tribunal and to order that the appeal before the Tribunal be re-heard. The first defendant (the Tribunal) and the second defendant (the City Of Melbourne) did not participate in the proceedings in this Court, and advised that they would abide by my decision. Urban Camp did appear to oppose the applications.
The six grounds for the Review listed in the originating motion were:
GROUND 1:
UPON THE GROUND the Tribunal erred in law in finding the use as a hostel
consistent with the reservation as a Park.
GROUND 2:
UPON THE GROUND the Tribunal sitting as Mr. Terrill erred in law in
determining a question of law, namely the use was consistent with the
reservation.
GROUND 3:
UPON THE GROUND the Tribunal sitting as Mr. Terrill erred in law in
determining a question of law, namely a “Use Permit” was required.
GROUND 4:
UPON THE GROUND the Tribunal sitting as Mr Terrill erred in law in
determining a question of law in granting an amendment to the Application.
GROUND 5:
UPON THE GROUND the Tribunal erred in law in refusing to refer the hearing of
the matter to a legally qualified Tribunal Member.
GROUND 6:
UPON THE GROUND the Tribunal erred in law by pre-determining a question of
law, inter alia, the use was consistent with the reservation.
The grounds on which review is sought of the decisions of the Tribunal may be grouped into certain categories. The first ground raises a fundamental question as to the relevant nexus, if any, between the reservation of land under the Crown Land (Reserves) Act and the application for a permit over the same land pursuant to a planning scheme established under the terms of the Planning and Environment Act. Grounds 2, 5 and 6 constitute a complaint that the entire appeal involved questions of law and therefore could not have been dealt with by Mr Terrill. Grounds 3 and 4 involve a more specific complaint relating to the amendment of the permit application and the failure to have referred that issue to a legally qualified member.
GROUND 1: THE PLANNING SCHEME AND THE CROWN LAND (RESERVES) ACT 1978
Ground 1 reads:
“The Tribunal erred in law in finding the use as a hostel consistent with
the reservation as a Park.”
The complaint under this ground is that for a permit to be issued pursuant to the planning scheme, so as to allow a use of the land, that use had to be consistent with the Crown reservation, under the Crown Land (Reserves) Act, even if the planning scheme itself would permit the permit to be granted, notwithstanding the fact that the proposed use was inconsistent with the terms of any separate reservation of the land as set out in the planning scheme. On behalf of the Group, it was submitted that the City of Melbourne, as responsible authority under the planning scheme, had purported to grant a permit to use the land in a manner which was inconsistent with the reservation under the Crown Land (Reserves) Act, and that the permit was, accordingly, beyond power and invalid, even if it would have been validly issued under the terms of the planning scheme, itself, having regard to the reservations under the planning scheme.
To understand the nature of the complaint made under this ground, it is first necessary to return to the two schemes under which the land was separately reserved. I examine, first, the reservation of the land under the Crown Land (Reserves) Act 1978.
THE SCHEME OF THE CROWN LAND (RESERVES) ACT
There is no dispute that the land was reserved under the predecessor legislation to the Crown Land (Reserves) Act 1978. The land had first been reserved by Crown Reserve No. 329, on 6 November 1876, which stipulated that "land and buildings thereon for the time being shall at all times be used as and for a public park and offices and conveniences connected with such park" (ie. “the Crown Reservation", as I have called it).
By s.13(1)(vii) of the Crown Land (Reserves) Act the trustees, alone, or the Minister and trustees, may make regulations for the issuing of “permits and licences and entering into agreements in relation to the land”. Section 14(1) provides that the Trustee and/or Minister and trustees may appoint a committee of management which, by s. 14(4), may comprise a municipal council. In its submission to the Tribunal the City of Melbourne said that it was the committee of management of Royal Park. By s. 15(1) the committee “shall manage, improve, maintain and control the land for the purposes for which it is reserved” and may exercise all powers, functions and authorities conferred on it under the regulations made under s. 13. By s. 17(2)(a), subject to any regulations under s. 13, the committees or committee:

“(a)

may grant licences to enter and use any portion of such land or any building thereon for any purpose consistent with the purpose of the reservation of the land for a period not exceeding three years.”

By s. 17(2)(c):

"(c) may enter into tenancy agreements. . .for any purpose consistent
with. . .the reservation. . .”

By s. 17B(1), notwithstanding the regulations, the trustees or committee may “for any purpose so approved by the Minister”:

“(a) grant licences to enter and use any portion of the land or
building thereon for a period not exceeding three years;

(b)

enter into agreements to operate services and facilities on the land for a period not exceeding three years; and

(c)

enter into tenancy agreements with persons to erect buildings and other structures and any such agreement -

(i)

shall provide that all buildings and structures shall become the property of the trustees or the committee or (where there are no trustees or committee), of the Crown;

(ii)

shall be for a specific term which shall not exceed three years;

(iii)

shall be subject to termination at any time by direction of the Minister; and

(iv)

may provide that the trustees or the committee or the Director-General (as the case may be) requires the tenant to undertake the removal of the building and the clearing of the site to the satisfaction of the trustees or committee or Director-General on the expiry or determination of the agreement.”

By s. 17B(2)(ii) such licences or agreements shall not apply to land reserved as “public parks” under s. 4(1)(iv) unless there are special reasons to grant the licence or agreement “which make the granting of the licence or entering into the agreement reasonable and appropriate in the particular circumstances”, and, also, “that to do this will not be substantially detrimental to the use and enjoyment of any adjacent land reserved under the Act.”
By s. 17B(4) terms and conditions may be imposed by the trustee or committee as to any such agreement or licence.
Section 17B(5) provides:
“Any building or structure created on the land and any use of the land pursuant to an agreement referred to in sub-section (1) shall be subject to any Act rule regulation or by-law relating to approval of plans and specifications or to control of land use, including, without limiting the generality of the foregoing, the Planning and Environment Act 1987 and any regulation or instrument made thereunder.”

THE RESERVATION OF LAND UNDER THE PLANNING SCHEME

The reservation of the land at Royal Park, pursuant to clause 4(1)(iv) of the Crown Land (Reserves) Act, "for a public park and offices and conveniences connected with such park" - is to be compared with a separate reservation of the same land pursuant to the terms of the Melbourne and Metropolitan Planning Scheme, which was made pursuant to s.6 of the Planning and Environment Act 1987. Clause 325 of the planning scheme deals with "Reserved Land", and sets out in a table the uses for which land is reserved when given particular designations on the Planning Scheme Map. The land at Royal Park is shown on the Planning Scheme Map of the Melbourne and Metropolitan Planning Scheme as being designated: "Open Space - public existing".
The purpose specified in the preamble to the Reserved Land clause, clause 325, is "to identify land for public use, including recreation, roads, railways, airfields, schools, hospitals, cemeteries and other government and semi-government uses." Clause 325-1 then proceeds, as follows, under the heading "Use of Land":
“Land which is marked on the Planning Scheme map in the ways described in the table below is reserved for the use shown or for use by the authorities and departments named in carrying out their lawful functions.
The land may be used as described in the table or:

∗ As it was lawfully used immediately before the approval date.
∗ For a use that is granted a permit.
Reserved land occupied by a public authority or municipal council may be used in any way the authority or council may lawfully use it, provided it is consistent with the use for which the land is reserved.
Land is considered to be vested in a public authority or municipal council if the authority or council is appointed a committee of management under the Crown Land (Reserves) Act 1978 or a corresponding previous Act.”

As these terms of Clause 325-1 disclose, the land may be used as described in the table, or as it was lawfully used immediately before the approval date, or else, may be used for any use for which a permit is granted. In other words, the fact that a use may be inconsistent with the reserved use under the planning scheme does not prohibit the grant of a permit. No permit is required, at all, when the use is consistent with the reservation. Where the proposed use is inconsistent, and a permit is sought, then notice of the application must be given and the relevant planning authorities have to consider the merit of the application in light of any objections to the grant of the permit.
The reservation described as "open space - public existing" is to be compared with the reservation “public park and offices and conveniences connected with such park" used in the Crown Land (Reserves) Act.
Ground 1 of the grounds of review in the originating motion identifies the primary contention of the Group, namely, that whilst the responsible authority might grant a permit for a use which was inconsistent with a reserved use for the land which was specified in the Planning Scheme Map (as listed in the table in clause 325), the responsible authority could not grant a permit for a use which was inconsistent with the reserved use of the land as reserved by the Crown Land (Reserves) Act. Accordingly, so it was submitted, unless the proposed use as "urban camp" was consistent with the reservation of the land as "public park and offices and conveniences connected with such park" then the permit could not be granted. The Group contended that it was a question of law whether the use did so comply with the Crown reservation, and submitted that as a matter of law a use which amounted to hostel accommodation, where persons stayed overnight, was not consistent with the reserved use.
To that primary contention Urban Camp made two responses, which I will deal with in turn, under the following headings:

•

(a) There was no requirement that the responsible authority when exercising power under the planning scheme ensure that the use approved by a permit was consistent with the Crown reservation under the Crown Land (Reserves) Act;

•

(b) If there was such a requirement, then the Tribunal concluded, in any event, that the use was consistent with the Crown reservation. That was a question of fact, and it was open to the Tribunal, on the evidence, to have reached the conclusion which it did, and the decision, therefore, is not amenable to review.

As to the first of those competing contentions, Urban Camp submitted that the entitlement of the responsible authority to grant a permit for a use inconsistent with the reservation made under the Crown Land (Reserves) Act was made clear by s.46(2) of the Planning and Environment Act. Section 46 of the Planning and Environment Act 1987 provides:

“46. Planning schemes may apply to reserved land

(1) Without limiting the operation of section 6, a planning scheme may regulate or prohibit the use or development of land which is permanently or temporarily reserved for any purpose under the Crown Land (Reserves) Act 1978.
(2) If a provision of a planning scheme is expressed or purports to deal with land that has been permanently reserved for any purpose under the Crown Land (Reserves Act) 1978 or any part of that land in a manner which is inconsistent with the purpose of the reservation, the provision does not take effect until the reservation of that land or part is revoked by or pursuant to an Act of Parliament.”

The fact that s.46(2) does not refer to a planning permit, but to "a provision of a planning scheme", leads to the conclusion, counsel for Urban Camp submitted, that s.46 envisages, and does not seek to prevent, permits being applied for and granted for uses which are inconsistent with the reservation. That, according to Urban Camp, is consistent with its contention that the process of granting permits under the planning scheme has no bearing on the powers, obligations and entitlements, of any party, which are addressed in the Crown Land (Reserves) Act as to use of the land. The responsible authority was only concerned with addressing the merits of any application for a permit, so it was submitted, and with the considerations relevant under its own planning scheme.
In support of the contention that s.46(2) represents an acknowledgement that the responsible authority may grant a permit for a use inconsistent with the Crown reservation, counsel for Urban Camp referred to two decisions of the Tribunal chaired by an experienced Deputy President of the Tribunal, Mr R. Barton: City of South Melbourne v M.M.B.W., a decision made in 1985 and reported in 15 A.P.A.D 86, and City of Melbourne v Carlton Cricket and Football Club, decided in 1992 and reported in 10 AATR 53.
In the first of those decisions (the "MMBW case"), Mr Barton examined the relationship between the Melbourne and Metropolitan Planning Scheme reservation of Albert Park as "public open space existing" and the reservation of the land as "public park" under the Crown Land (Reserves) Act. He also considered the forerunner of s.46 (which was s.34 of the Town and Country Planning Act 1961 - the "TCP Act") and concluded that that section did not require that a permit which was issued under the planning scheme had to be consistent with the Crown reservation if it was to take effect. Mr Barton reached the same conclusion in the second decision, which was concerned not with s. 34 of the TCP Act but with an earlier version of s.46 of the Planning and Environment Act 1987 (which had replaced the Town and Country Planning Act).
It is to be noted, however, that there were significant differences between the sections with which Mr Barton was concerned and the present terms of s.46.
Section 34 of the Town and Country Planning Act, having identified the situation "where any scheme includes land permanently reserved for any of the purposes specified in section 4 of the Crown Land (Reserves) Act 1978", then stated that "the scheme to the extent to which it is expressed or purports to deal with that land or any portion thereof in any manner inconsistent with that reservation" shall not take effect, etc. (my emphasis). Thus, that section was concerned only with a situation where the scheme, itself, was dealing with the land in a manner inconsistent with the Crown reservation.
Likewise, the terms of s.46 as they were in 1992, at the time of the second decision by Mr Barton, also referred to the situation where "the Planning Scheme" was purporting to deal with land in a manner inconsistent with the Crown reservation. The wording of s.34 of the TCP Act led Mr Barton to conclude, in the MMBW case, at pp.95-96:
“In our opinion, the important matter to stress in relation to s 34 of the Town and Country Planning Act 1961 is that it related to a scheme which is inconsistent etc. Reservation of land under the Melbourne Metropolitan Planning Scheme Ordinance as public open space - existing is not ‘inconsistent with’ the 1876 reservation of the land ‘as a site for a public park’. There is no requirement that a permit issued under a scheme should not be inconsistent with the reservation. The scheme itself may be consistent with the reservation, but by the exercise of discretions contained in it a permit could contain provisions which are inconsistent with the reservation. In our opinion the words ‘to the extent to which it purports to deal with that land’ are not sufficiently wide to include actions taken under schemes as well as the provisions of the schemes themselves. This may well be a matter to which the draftsman never turned his mind. We agree with the following comments by Mr Molesworth of counsel in McGrath v Shire of Mornington and Hovertravel Australia Pty Ltd unreported (appeal No. P84/1441, 5 July 1985, Messrs Barton, Gould and Alder) namely:
‘It would be a farcical situation if great care was taken to draft a planning scheme so as to ensure that it was not inconsistent with the purposes of a reserve and then allow a permit to issue under that scheme which brings about a state of affairs inconsistent with that reserve.’
It seems, however, that that situation could occur.”
Having recognised the apparent absurdity of that situation, the Tribunal, chaired by Mr Barton, suggested that there could be a logical reason for permitting the situation where a permit allowed a use which was inconsistent with the reservation as a public park. The Tribunal cited the case where approval was given to fill a quarry - which might later be used as part of the park - where the filling of the hole was not consistent with the use of the park as public open space. With respect to Mr Barton, however, that may not have been a particularly apt example to have adopted by way of explanation of the anomalous situation, because it may well have been arguable that the granting of a permit to fill the quarry, in circumstances where that was being done so that the land, once filled, might be used as a park, would be consistent with the reservation, not inconsistent. In any event, as I will discuss, there are other possible explanations for Parliament having intended that s.46(2) not apply to permits.
As noted in the passage, above, Mr Barton considered that the apparently absurd situation of a permit being able to be granted when it was inconsistent with the reservation reflected the fact that the draftsperson had not turned his/her mind to that possibility. Section 46 was amended, to its present terms, in 1997. In lieu of reference to the "the scheme" or "the planning scheme" being inconsistent with the Crown reservation, which were the words employed in the prior legislative provisions, it now refers to "a provision of a planning scheme". Counsel for Urban Camp argued that the new words ("a provision of") did not alter the result described by Mr Barton. Thus, so it was submitted, I should conclude that s.46(2), by not declaring that a permit would fail to take effect if it was inconsistent with the Crown reservation, thereby still acknowledges that it is possible for a responsible authority to grant a permit which is inconsistent with the Crown reservation; it is only when the provisions of the scheme, as they broadly apply, purport to allow inconsistent use, so it is submitted, that the provisions of the scheme fail to take effect until a revocation of the reservation occurs by or under an Act of Parliament.
This argument, if it were correct, might suggest that Parliament had no purpose for introducing the words "a provision of" a planning scheme, since they added nothing to the existing words, and that, notwithstanding the identification of the apparent absurdity which Mr Barton had twice addressed, Parliament chose to continue with the situation where the entire provision of a scheme would be prevented from taking effect were it inconsistent with the Crown reservation as to the use it permitted, and yet individual instances of such inconsistency, as authorised by permits, would not be denied effect.
It is to be noted that the draftsperson did not employ the expression "a provision contained in a permit", but, rather, "a provision of a planning scheme". In his two decisions Mr Barton had noted the failure to employ the former expression, and regarded that as a significant omission, pointing to the fact that s.46, as it then was, was not intended to have any effect on permits, but only to apply, more generally, to schemes. It might, therefore, be significant that when amending the section the draftsperson expressly declined to refer to "the provisions of a permit", or to “a permit”, at all, thus lending support to the conclusion that s.46 was concerned to ensure that the scheme, itself, was not purporting to subvert the reservation, in a general or global way, and was not intended to have any bearing at all on the question whether individual permits complied with the Crown reservation.
Curiously, in the written submission to the Tribunal by the City of Melbourne, it was contended that the words added to s.46(2) by its amendment in fact did embrace a permit, and thus the section, as amended, meant that to the extent that a permit was inconsistent with the reservation then the permit did not take effect "until the reservation of the land is revoked by an Act of Parliament" or until any other authorisation or permission which was required under the terms of the Crown Land (Reserves) Act was given or obtained. Urban Camp did not support that proposition in its written submission, not directly addressing the contention but merely submitting that s.46 demonstrated that the two processes of planning control (ie. under the planning scheme or under the Crown Land (Reserves) Act) operated independently, so that the mere grant of a permit would not entitle the user to commence to use the land if to do so required that a lease of some other permission be obtained under the Crown Land (Reserves) Act.
In my opinion, the amendment to s.46(2) was intended to emphasise the fact that the sub-section did not refer to permits, but that does not mean that it was intended, thereby, that a permit under a planning scheme could itself authorise a use to take place which was inconsistent with a Crown reservation. Such use of the land could not happen unless and until those who alone could permit such an event to take place, namely those with responsibility to authorise non-conforming uses under the Crown Land (Reserves) Act, were to grant any necessary approvals. To that extent, the contention that the two regimes operate separately has some force, but what Urban Camp's submission failed to acknowledge was the fact that the responsible authority could not authorise a non conforming use, at all; that power was alone held by those identified in the Crown Land (Reserves) Act, when exercising its provisions.
The relationship between the two pieces of legislation - the Act and the planning scheme (which, in my opinion, was "a regulation" for the purpose of s.17B(5) of the Crown Land (Reserves) Act) - was designed to ensure that it is only the Minister and/or trustees and/or Committee of Management under the Crown Land (Reserves) Act who can authorise a use of land inconsistent with the Crown reservation, but that the responsible authority can regulate such a non-conforming use when it is approved by those who are authorised to do so under the Crown Land (Reserves) Act. The responsible authority may not, therefore, authorise a use which is inconsistent with the Crown reservation, even if the terms of the Crown reservation are very similar to those of a separate reservation under the planning scheme, and even if the planning scheme, itself, would not prohibit the grant of a permit for a use inconsistent with the planning scheme's own reservation.
Section 46(1) of the Planning and Environment Act empowers a planning scheme "to regulate or prohibit the use or development" of Crown reserved land, which, of course, merely authorises the regulating of such land in a manner consistent with the Crown reservation. If non-conforming use has been approved by the relevant bodies under the Crown Land (Reserves) Act then s. 17B(5) requires that any buildings or use of the land is subject "to approval of plans and specifications or control of land" under the regulation/planning scheme. That, too, does not suggest that "authorisation" for the non-conforming use is obtained under the planning scheme provisions. But for the purpose of approval of plans, and control of land, the permit system under the planning scheme may take effect, by virtue of s.17B(5), so as to impose conditions of use and development in conjunction with the authorisation of use permitted under the terms of the Crown Land (Reserves) Act. In those circumstances, it may appear that the permit would be, also, authorising a use or development which was inconsistent with the Crown reservation. In fact, it would be merely regulating or controlling a use which had been permitted by others, who had exercised their powers under the Crown Land (Reserves) Act. In other words, I agree with the contention of counsel for Urban Camp that a permit purporting to authorise a use inconsistent with the Crown reservation would have no effect unless it was accompanied by an approval of use under the Crown Land (Reserves) Act, but I go further, and conclude that when such approval was obtained the permit would, in effect, still not be authorising the use but merely regulating the approval, granted by others, so as to ensure, so far as possible, that the inconsistent use otherwise conformed to the planning scheme.
Notwithstanding the contention made on behalf of the City of Melbourne, it seems to me that one further factor which might lend support to the conclusion that s.46 was not intended to directly impact upon permits (so as to prevent them taking effect when they purported to permit a use which was inconsistent with the Crown reservation) is the fact that it would be unlikely that Parliament might oblige itself to pass or utilise an Act so as to revoke the reservation under the Crown Land (Reserves) Act (with respect either to the whole, or part, of the land covered by the permit) should the Minister desire that the permit holder be permitted to undertake the non-conforming use which the planning permit had apparently approved. It would be all the more surprising were it intended that such a revocation would have been necessary in those circumstances because it would mean that although in the exercise of the express powers given under the Crown Land (Reserves) Act the Minister could agree to grant a lease and stipulate express terms for undertaking of the non-conforming use, and could do so without having to revoke the reservation over the land, it would be necessary to revoke the reservation over the land if it was intended merely to enable a permit to take effect when it had purported to authorise a use inconsistent with the Crown reservation. Section 17B(5) made it clear, in my view, that the operation of the planning scheme in such circumstances is intended to do no more than enable the responsible authority to follow up the approval for non- conforming use granted under the Crown Land (Reserves) Act with a measure of additional regulation and control to ensure that the resulting use was, otherwise, in harmony with the planning scheme.

There could, of course, be situations where (as in this case) without the Minister or trustees or Committee of Management having apparently given approval (or, perhaps, without it having even been considered) for a non-conforming use, a local authority might purport to give permission for a non-conforming use to take place. Parliament may well have thought such a situation was unlikely to occur because (irrespective of whether the responsible authority thought, incorrectly, that it had the power to authorise a use which was inconsistent with a Crown reservation) it could be presumed that the existence of the Crown reservation would be one factor which would be taken into account when addressing the merits of an application for a permit. That was, indeed, precisely the approach which Mr Barton adopted in the MMBW case, stating, at p.96, that the existence of the reservation was "of very great importance" to the decision of the Tribunal, on the merits of the application. Having once made clear, as s.46 does, that the provisions of the planning scheme must, generally, be consistent with the Crown reservation - and that the entire provisions will not take effect if that is not the case - then it might have been a reasonable assumption that responsible authorities would not seek to achieve an outcome, by adopting the piecemeal approach of granting permits, whereby approvals would be given for use of the land which were inconsistent with the Crown reservation.
In cases of uncertainty, a party challenging the entitlement of a permit holder, who was acting in purported reliance on a permit under a planning scheme, to commence work which constituted a use inconsistent with the Crown reservation could seek an injunction to restrain the activity, and point to the absence of approval under the Crown Land (Reserves) Act. Before an injunction might be granted, however, it would have to be shown that the use was inconsistent with the Crown reservation.
Mr Wren, counsel for Urban Camp, submitted that the power of a responsible authority to grant such a permit authorising a use which was inconsistent with the terms of a reservation over land has been long recognised. He cited numerous planning decisions by the Tribunal, and also Leahy v City of Camberwell [1973] VR 589, a decision of Adam J., which concerned a reservation under a planning scheme, rather than a Crown reservation, but counsel for Urban Camp submitted it had equal application in either instance. Counsel for the Group challenged that contention and relied on the same case as authority for the proposition that a permit under a planning scheme could not authorise a use inconsistent with a reservation under the Crown Land (Reserves) Act, or similar legislation.
In Leahy, Adam J held that it was open to the Tribunal to issue a permit for a purpose which was inconsistent with the reservation under the planning scheme. In that case, the application concerned the provision of facilities for a private tennis club on land reserved in the planning scheme as "open space - public existing". His Honour concluded, however, that as a matter of law the tennis facilities were not "public" and therefore the permit could not be granted. His Honour accepted that a permit might otherwise have been granted, although the use was inconsistent with the reservation.
In my view, Leahy's case does not assist Urban Camp, at all. It is plain from his Honour's judgment that his acceptance that a permit might be granted for a use inconsistent with a reserved use, was expressly limited only to cases where the reserved use was created under the same planning scheme, and did not apply to the situation where the reservation was in separate legislation, such as the Lands Act (which was the forerunner of the Crown Land (Reserves) Act). This is made quite plain in the following passage, at p.594:
“In so far as the reservation of land for public purposes derives from the planning scheme itself and not otherwise, I see no more reason for excluding such reserved land from the permit system than any other land whose use is restricted or regulated only by zoning under the scheme.
For this reason, I find little assistance in the construction of s. 27 from the circumstances that, if authorized by it, cl. 33(1)(b) of the Ordinance would have the effect of removing land reserved under the scheme from the reserved class for all time. Especially is this so when under the Act the granting of permits is subject to appeal to an Appeals Tribunal to be decided upon planning considerations.
Of course land reserved under a scheme is not to be confused with land reserved for public purposes under the Lands Act or similar legislation.” (My emphasis.)
That passage is obiter, but lends authoritative weight to the proposition for which Ms O'Brien contended, namely, that where a permanent reservation is made under legislation, it should not be concluded that the effect of that reservation can be overcome by operation of a planning scheme regime which is akin to the operation of a mere regulatory power.
The provisions of the Crown Land (Reserves) Act, which I set out earlier, suggest that uses inconsistent with the Crown reservation are contemplated under that Act, but that there is a complex set of arrangements put in place to ensure that such a use is permitted only in special circumstances and is made subject to strict controls. That whole scheme, and any non-conforming use which was permitted under s. 17B(1) is, by s. 17B(5) made expressly subject to any approvals or controls of land use under the Planning and Environment Act and any regulation or instrument made thereunder. That nexus supports the contention that the two planning regimes, ie, that under the planning scheme and that under the Crown Land (Reserves) Act, function independently, but it does not make it more likely that it was intended that a permit under a planning scheme could authorise a use inconsistent with the Crown reservation. It would be an odd situation if the committee of management of Crown reserved land might be directed, as s.15(1) of the Crown Land (Reserves) Act so directs the committee, to manage and control the land "for the purposes for which it is reserved", and yet, when wearing another hat, essentially the same body (albeit, acting through a delegate) - in the role of responsible authority under the planning scheme - might grant a permit for a use inconsistent with those same purposes.
In summary, I have concluded that the responsible authority does not have power, by the grant of a permit, to authorise a use inconsistent with the Crown reservation. The scheme seems to me to be this. Where approval has been given under s.17B for an inconsistent use, then s.17B(5) entitles the responsible authority, by the issue of a permit, to control the proposed use so as to ensure that it is in harmony with the planning scheme. Where no approval for a use inconsistent with the Crown reservation has been given pursuant to s.17B, those responsible for the planning scheme may only regulate or prohibit use or development, by virtue of s.46(1), in a manner consistent with the Crown reservation.
Having concluded that the responsible authority could not, by the issue of a permit, authorise a use which was inconsistent with the Crown reservation, the next question is whether the use which was the subject of the permit granted to Urban Camp was, in fact, inconsistent with the Crown reservation. Mr Wren, for Urban Camp, submitted that it was not, and submitted, further, that this was a question of fact, not of law, and, thus, relief by judicial review could not be granted unless there was no evidence on which the Tribunal could have come to the decision it did.
WAS THE USE CONSISTENT WITH THE CROWN RESERVATION; A QUESTION OF
LAW OR FACT?
I return to issue (b) - the second response made by Urban camp to the plaintiff's contention - which I earlier identified. Was the question one of law or fact, as to whether the proposed use was consistent with the Crown reservation, and, if it was a question of fact, did the Tribunal reach a conclusion of fact which was open for it to have reached?
It was presumed in the submissions for Urban Camp that the Tribunal did, actually, make a finding (whether it is a question of fact, or law, I will address later) that the urban camp use was consistent with the Crown reservation of “public park”, etc. It is not entirely clear that that was the case, but it seems to have been assumed on all sides that that was so, and Ms O'Brien, counsel for the Group, accepted that if the use as an urban camp (which she and counsel for Urban Camp seemed to agree most closely approximated a use of land as a "hostel") was “ancillary” to use as a public park then that would constitute use consistent with the Crown reservation.
The Group contended, however, that the existing use of the park land for the urban camp was inconsistent with the reservation, thus any extension of such use by the building of additional buildings, and their use, would also be inconsistent with the reserved use. As noted earlier, Urban Camp had taken the position that the present use of the land for the existing urban camp was a lawful use; thus a use permit was not required, only the development by way of renovations and additions requiring planning approval. Urban Group had been unwilling to concede that it needed to apply for a use permit because that in turn amounted to a concession that the existing use was not a lawful use, which in turn, again, amounted to a concession that the use was not consistent with use of the land as "open space - public existing" in the planning scheme, since, under clause 325-1, if it was consistent that would mean that no use permit was required at all. However, in making the amendment application, and as re-stated in submissions before the Tribunal, and before me, Urban Camp accepted that it had thereby conceded that the proposed use for which the permit was sought was one which was not an existing lawful use under the planning scheme. It follows that it was not a use which met the description "open space - public existing”.
Ground 2 raises the issue whether the Tribunal member, Mr Terrill, made a determination of a question of law, namely, whether the use for which the permit was sought was consistent with the reserved use under the Crown Land (Reserves) Act. This ground really raises a preliminary question, whereas Ground 1 complains that the question of law could have only been answered one way. Ground 1 reads: "The Tribunal erred in law in finding the use as a hostel consistent with the reservation as a park."
In the Determination, the Tribunal - which appears to be Mr Terrill for this purpose - after having considered the merits of the appeal, and in the context of his discussion and observation that Royal Park was permanently reserved by the Crown Land (Reserves )Act for the purpose of public parklands and offices and conveniences in connection therewith, stated, at page 10: "The first question is whether the use is consistent with the reservation as a park and the Tribunal finds from all the evidence tendered that it is".
Two things emerge from this passage in the determination. In the first place, Mr Terrill has plainly regarded this to be a question of fact, and secondly, he has concluded that the proposed use was, as a matter of fact, consistent with the Crown reservation. The plaintiff complains that the Tribunal was wrong on both counts. I will now consider the first issue, namely, whether it was a question of fact.
The distinction between questions of fact and law was extensively discussed by Phillips JA, with whom Hedigan AJA agreed, in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 88 ff. His Honour reduced the examination of the issue to three propositions. First, that what is the proper meaning, as a matter of construction, of the statutory description, which is relevant to the claimant's success or failure, is a question of law. In other words, what meaning should be ascribed the words of the Crown reservation would be a question of law. Secondly, once that task of construction is concluded, the question whether the claimant's particular circumstances fell within the relevant statutory description is essentially a question of fact. Thus, the question whether the use as urban camp, as proposed by the permit, was consistent with the Crown reservation, would be a question of fact. The third proposition, which qualifies the second, is that if the fact finding tribunal arrived at a conclusion which was simply not open to it on the evidence then that is an error of law, and the issue whether it did make such an error is itself a question of law.
Applying these principles, here, there appeared to be no dispute as to what the Crown reservation meant. The words employed in the Crown reservation are “ordinary non-technical English words” (per Tadgell J in Franceschini v MMBW (1980) 57 LGRA 284 at 290) and although the determination of the question whether the proposed use is consistent with that reservation might, as Tadgell J observed, at 289-90, “often depend on questions of fact and degree” and may require the decision-maker “to exercise some judgment conditioned by matters external to its terms in order to determine what is comprehended within it and what is not”, the question remains a question of fact. What was in dispute was whether a use which amounted to a hostel, in which people could sleep overnight, had no or insufficient connection to the public park so as to meet the description of use in the Crown reservation. In her written submission to the Tribunal on behalf of the Group counsel for the Group - having conceded that if the purposes for which the permit was sought could be regarded as an amenity of or ancillary to land reserved for the purposes of public park lands and offices and conveniences in connection therewith - identified the issue as being whether "the use of the land in question for hostel accommodation cannot properly or sensibly be regarded merely as an amenity or ancillary to the Park. Sleeping of its nature prevents the very purposes for which the Park is reserved".
Although the submission made on behalf of the Group implied that the identified issue was a question of law, in my opinion, the question whether the use for which the permit was sought was consistent with the reserved use was indeed a question of fact, not of law: see, too, Franceschini v MMBW (1980) 57 LGRA 284, at 288, 294; Warren v Living Water Home Healing Committee (1981) VR 551; City of St Kilda v Perplat Investments Pty Ltd 4 AATR 358.
My conclusion that the identified issue was a question of fact really disposes of the complaint made in Ground 2, but there is an additional complaint, which is probably to be regarded as being raised by Ground 5, that the issue of whether it was a question of law or fact should have been referred to the legally qualified Member, whereas Mr Terrill proceeded to consider the merits of the appeal on the assumption that he was addressing a question of fact. The complaint here also appears to be related to the complaint in Ground 6 (ie. “The Tribunal erred in law by pre- determining a question of law, inter alia, the use was consistent with the reservation"), which was not the subject of argument before me, but which appeared to involve complaint that Mr Terrill reached his conclusion that the use was consistent with the Crown reservation before he knew the opinion of Mr Ball as to whether, as a matter of law, it was capable of being a use consistent with the reservation. I will deal with that issue, later.
Although I had some initial doubts as to this, I have concluded that Mr Terrill did make an express finding of fact that the proposed use was consistent with the Crown reservation. The Determination states that "the member hearing the appeal considered at the hearing that he believed the use was ancillary to the park use and the proposal should be considered on its merits". Subsequently, the Determination states that: "The Tribunal is satisfied that the use is ancillary to the park and is an asset that complements the park and its use . . ."
The repeated reference in the Determination to the question whether the proposed use was "ancillary" to a public park, might suggest that the Tribunal was not focusing on the reservation itself, which spoke of use "for a public park . . . and conveniences connected with such park". The terms may not be synonymous, but the submission made to the Tribunal on behalf of the Group used the same terminology, and it was accepted that if the use was "ancillary" to park use then it would be "connected" with park use for the purposes of the Crown reservation.
Ms O'Brien conceded, in her written submission to me, that uses which have been appropriately accepted as an amenity of or ancillary to the use of land reserved as public park included "offices and conveniences in connection with a park including active recreational services being club houses, training areas and social facilities". The notion of ancillary, or incidental, use is well accepted. In Leahy v City of Camberwell, at pp.591-2, Adam J. held that land used for recreational purposes might well comply with the reserved use as "open space" and said that was so "notwithstanding that for its more efficient use and as incidental thereto part of the land is covered by buildings or other structures or other like amenities". In City of South Melbourne v MMBW, at 91-92, the Tribunal cited a passage in a report of a Board of Inquiry conducted by Mr O.J. Gillard QC, as he then was, in which the characteristics which had been judicially held to attach to a public park were stated in the following terms:

“(a)

Prima facie, the public has ‘free and unrestricted use of it’ (per Lord Halsbury in Lambeth Overseers v London CC [1897] AC 625 at 630).

(b)

The Committee of Management are ‘merely custodians... to hold it and manage it for the use of the public’ (per Lord Herschell in Lambeth Overseers v London CC at 632).

(c)

Where, however, it was clearly ancillary to the proper regulation or conduct of the area the public may be denied access to a portion of the park (for example, keeper’s lodge, bandstand or a refreshment booth) or indeed, at certain periods, to the whole park (for example, after nightfall)...

(d)

The amount of exclusion of the free and unrestricted use by the public must be one of degree, and must have regard to the claims of time and circumstance...

(e)

But the exclusion of the public must be clearly ancillary to the management of the park. Hence, if a restaurant could not properly or sensibly be regarded merely as an amenity of or ancillary to the park, but could acquire an altogether independent status comparable to the competitive with other restaurants in Melbourne, then it would lose its character as part of the park and exist in the geographical limits of the area as an independent unit. (Sheffield Corporation v Tranter [1957] 1 WLR 843 at 854.)
(f) ...

(g)

It also seems to be established that to charge admittance is not necessarily contrary to the general proposition that the public shall have unrestricted entry into and access to the park. Again it is a question of degree.”

It is plain that the Tribunal, Mr Terrill, considered the question whether the use was consistent with the reserved use to be a question of fact, not of law, and considerations such as those discussed in the cases, above, would no doubt have been taken into account. The grounds of appeal complain that it was a question of law, and as such could only have been determined by a legally qualified member, and that, as a matter of law, use of the building and alterations for the Urban Camp facility was inconsistent with the reserved use.
As I have said, the question whether the proposed use was connected with such park is a question of fact. Although the Tribunal discussed the question by using the word "ancillary", rather than the word "connected" - which was employed in the Crown reservation - I think nothing ultimately turns on that.
WAS THE FINDING OF FACT OPEN TO THE TRIBUNAL?

I conclude that the Tribunal heard evidence from which it was able to have concluded that the urban camp use was connected to the park in the terms employed in the Crown reservation.
There was evidence, for example, that the camp was used extensively by country school students who visited Melbourne and used the facilities of the park for recreation and education and who were facilitated in so doing by being able to reside at the park.
It is true that the proposition that a hostel of this kind might not have sufficient connection with a park as to be consistent with the Crown reservation was plainly arguable. Ms O’Brien submitted that whilst existing facilities in the park (which included a golf course, ovals, basketball course, tennis courts, the State hockey centre, and The State Netball Centre), might all be said to be connected with such park, the proposed use of the Urban Camp crossed the dividing line between a use consistent with the reservation and one which was not. The difference was that now the Urban Camp involved live-in accommodation; it was to be a hotel or hostel, and such a use could not have such a connection to the park as to constitute usage consistent with the reservation. It was a question of degree, so it was submitted. A commercial hotel, for example, which merely used the pleasant environment of the park as a means to encourage greater occupancy and profits would be unlikely to be a use consistent with the Crown reservation, but was the urban camp, also, clearly inconsistent with the Crown reservation?
In my opinion, it was a matter for the Tribunal to assess, applying its expertise. The courts should be slow to second-guess a decision of fact reached by an expert tribunal in an area of its expertise: see Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, at 11, per Stephen J. There was a considerable amount of material filed at the appeal relating to the extensive use of urban camp by educational groups, its community support and the connection between the camp and use and enjoyment of the park by its guests. Whilst it had commercial aspects to its operation it was a community based operation, and not a private commercial venture, in any real sense.
The decision reached was not plainly wrong, or unsupported by credible evidence, and I am not persuaded that the decision manifested legal error.
GROUNDS 2 ,5 AND 6: WHETHER QUESTIONS OF LAW SHOULD HAVE BEEN DECIDED BY
A LEGALLY QUALIFIED MEMBER.
It is convenient to take together the following grounds listed by the plaintiff in support of its originating motion.
Ground 2: "The Tribunal sitting as Mr Terrill erred in law in determining a question of law, namely, the use was consistent with the reservation."
Ground 5: "The Tribunal erred in law in refusing to refer the hearing to a legally qualified Tribunal Member."
Ground 6: "The Tribunal erred in law by pre-determining a question of law, inter alia, the use was consistent with the reservation".
Grounds 2 and 5 have in common the complaint that the Tribunal, as constituted by Mr Terrill, failed to refer either the entire proceedings, or the primary question raised by the proceedings, to a legally qualified Member under s.47(1) of the Administrative Appeals Tribunal Act 1984 (the "AAT Act"). I will also touch upon Ground 6, which raises an issue which is related to the matter addressed by Grounds 2 and 5, but which was not the subject of any substantial argument before me. Grounds 3 and 4, which I will discuss next, make the specific complaint that Mr Terrill was not permitted to have determined whether to allow the amendment to the application which was the subject of the appeal to the Tribunal, that also being a question of law.
It is to be kept in mind that s.47(1) of the Administrative Appeals Tribunal Act requires that the question, of itself, whether a matter raised a question of law, was obliged to be referred to a legally qualified Member. Thus, one complaint was that by proceeding to determine "the merits" of the appeal and only subsequently obtaining the opinion of Mr Ball, Mr Terrill had failed to comply with the section. This may be the basis for the complaint in Ground 6, that the Tribunal prejudged the question of whether the use was consistent with the Crown reservation, because Mr Terrill simply assumed it to have been a question of fact and had reached a conclusion on that question, and possibly on the merits of the matter, before he obtained the opinion of Mr Ball.
Section 7(3) of the AAT Act provides that a member of the Tribunal must either be a legal practitioner of not less than five years standing or else be a person with special knowledge or skill in respect to the matters on which he or she is called upon to make decisions. Section 47(1)(c) provides that when a proceeding is before the Planning division and the Tribunal is not constituted by a legal practitioner member then "(a) question of law arising in a proceeding before the Tribunal (including the question whether a particular question is one of law)" must, unless the parties otherwise consent, be decided in accordance with the opinion of a member who is either the President, a Deputy President, or a legal practitioner member.
The plaintiff's counsel asserted before the Tribunal that the appeal to the Tribunal raised a question of law as to whether the proposed use was required to comply, and did, with the terms of the reservation under the Crown Land (Reserves) Act. Mr Terrill did state that he would refer a question, or questions, of law to a legally qualified Member, but, as I have said, there is some uncertainty as to precisely what question of law was referred to Mr Ball.
The written submission to the Tribunal on behalf of the City of Melbourne asserted that even if the proposed use was inconsistent with the Crown reservation (which, for the sake of the discussion, was assumed), a permit could still be granted, because the planning controls under the planning scheme had no bearing on whether any approvals, leases or other requirements under the Crown Land (Reserves) Act must also have been obtained. The City of Melbourne expressly submitted that a permit under the planning scheme could not authorise work to commence on Crown reserved land, where such use would be inconsistent with the Crown reservation, and required authorisation, under that Act. The submission by Urban Camp treated the question of the consistency of use as not relevant, for similar reasons, or, alternatively, as being a question of fact, in any event. The submission by the Group's counsel did address both the issue of whether the question was one of law or fact and also whether the use could, as a matter of fact or law, be consistent with the reservation.
Ground 2 complains that it was Mr Terrill, who made the decision (which was, in reality, a question of law, so it was asserted) that the use for which the permit was sought was consistent with the terms of the reservation under the Crown Land (Reserves) Act. As I have said, I conclude that he did so decide, but that he treated it, rightly, as a question of fact, not of law. Mr Ball later accepted the correctness of the written submissions made by those supporting the grant of the permit, who contended that the permit was not required to be consistent with the Crown Land (Reserves) Act for the permit to be validly issued. If Mr Ball concluded that a permit could, itself, authorise a use inconsistent with the Crown reservation, then, with respect, I disagree with that opinion.
But should the issue, whether the relevant question was a question of fact or law, have first been referred to Mr Ball for decision before Mr Terrill proceeded to determine the merits of the appeal? As the earlier discussion in these reasons demonstrates, the resolution of the question whether a matter raises a question of fact or law is by no means always easy. There is no doubt, in my mind, that that issue must have been referred for opinion to a legally qualified member, in accordance with s. 47 of the Administrative Appeals Tribunal Act. Although the question was not identified in precise terms, it was, however, implicit that when the matter was directed to Mr Ball, and was the subject of written submissions, the issue - ie. whether it involved a question of law or fact when deciding whether the use was consistent with the reservation - was placed before Mr Ball. Mr Ball's cryptic opinion - knowing, as he must have done, that Mr Terrill had already considered "the merits" - must have been taken, and been intended, to constitute a conclusion that the issue was not a question of law, but one of fact. Mr Ball did not purport to determine what was, therefore, the question of fact, but left that for Mr Terrill, whose decision as to that question of fact was made subsequently, even though the evidence and submissions on the question were heard by him before he obtained the opinion of Mr Ball.
It is not entirely satisfactory that determination of what was the question of law which was referred to Mr Ball is not able to be simply resolved by having recourse to a clearly articulated question of law which was directed to Mr Ball, and to his clearly stated answer to the identified question.
The remaining issue, then, is whether it was contrary to s.47(1)(c) of the Administrative Appeals Tribunal Act for the referral to have been delayed until after evidence was adduced, and submissions on the merits had concluded, that course having been taken on an assumption (later shown to be correct) that it was indeed a question of fact which had to be resolved.
I am not persuaded that to have proceeded as he did Mr Terrill's actions constituted a breach of the terms of s.47(1). The relevant issue was referred to the legally qualified Member, albeit in a manner which did not clearly define the question. But had the legally qualified member concluded that the issue was a question of law, not of fact, then he was able to have so advised, because no Determination on the issue had been made by Mr Terrill, who only proceeded to make the determination after he received the opinion of Mr Ball. Whilst there was a risk that a contrary legal opinion might have rendered redundant the evidence taken before Mr Terrill, it was necessary for Mr Terrill to make a practical decision to proceed to hear evidence and submissions, given the fact that the parties had all assembled, the request for a legally qualified member had been made too late for one to be assigned, and given that if it was later confirmed by the legally qualified Member that it was a question of fact, then parties and witnesses would not have been inconvenienced, by having to attend on another day. This is a practical, expert, Tribunal, one, no doubt, handling a large volume of planning appeal work, and operating under legislation which emphasises that a practical and expeditious approach should be adopted, one not dominated by form over substance. In those circumstances, even if I was wrong and there had been a technical breach of s.47 I would not, on this basis, grant the discretionary relief sought by the originating motion.
I conclude, therefore, that insofar as it was necessary that issues in the appeal be referred to a legally qualified Member then (subject to what I next say with respect to the amendment application) Mr Terrill did refer such questions, and did not act in breach of s.47(1)(c).
GROUNDS 3 AND 4: THE AMENDMENT OF THE APPLICATION
Ground 3: "The Tribunal sitting as Mr Terrill erred in law in determining a question of law, namely a ‘use permit’ was required."
Ground 4: "The Tribunal sitting as Mr Terrill erred in law in determining a question of law in granting an amendment to the Application."
Counsel for the Group, Ms O'Brien, first submitted to Mr Terrill that the permit which had been sought was not a "use" permit but a development permit, and that it was necessary to apply for a use permit pursuant to Clause 325 of the Melbourne and Metropolitan Planning Scheme. Urban Camp did not concede that it was necessary for it to do so, but counsel for City Of Melbourne agreed that a use permit should be sought and, accordingly, Urban Camp applied to amend its application. That amendment application was opposed by counsel for the Group on the basis that that would not constitute merely an amendment, but a transformation of the application, and was therefore beyond power of amendment held by the Tribunal pursuant to s.53 of the Planning Appeals Act 1980. Counsel relied on Addicote v Fox (No 2) (1979) VR 347, a decision delivered before amendments were made to s.53 of the Planning Appeals Act, but which counsel contended still had force. In that case Brooking J held that whilst the power to amend an application for a permit would allow an amendment to alter the use or development which had been stated in the application to another use or development, it would not permit the party to create a wholly new proposal. As I will discuss, that decision has been overtaken by the later amendment to the section, in my opinion.
The complaint in Ground 4, that the decision to allow an amendment was a legal issue which could not be decided by Mr Terrill, assumes that it was a question of law as to whether an amendment should be permitted. Mr Terrill, if his attention was directed to this question at all, apparently assumed that it was not a question of law, and I agree with that conclusion. In effect, what is submitted here is that once counsel for the plaintiff either expressly or impliedly asserted that the application for amendment involved a question of law that was sufficient to take the matter out of the hands of Mr Terrill because that assertion, of itself, brought s.47(1) into play since that raised a "question whether a particular question is one of law". I am not convinced that it was expressly submitted to Mr Terrill that the adjournment issue raised a question which s.47 required be submitted to a legally qualified member. In any event, the question was only this, whether the amendment was such as to transform the appeal from a development permit application to a use application, in such a way that was beyond the power of the tribunal to allow an amendment. It was really little more than a, discretionary, factual issue.
It would be a remarkable matter if the mere assertion by counsel, even if obviously erroneous, that a decision as to an amendment involved a question of law, would be sufficient to bring proceedings to a halt until a legally qualified member was made available to rule upon the question. It is to be borne in mind that proceedings before the Tribunal are required by the AAT Act to be conducted "with as little formality and technicality, and with as much expedition" as the requirements of the Act and other legislation would permit (see s.35(1)(b)) and that the Tribunal was not bound by the rules of evidence (s.35(1)(c)). Similar provision appear in s.25 of the Planning Appeals Act 1980. Furthermore, s. 53(1) of the Planning Appeals Act 1980 provided an extremely wide discretion to the Tribunal hearing an appeal, to amend the application for a permit, at any time, even if the amendment substitutes a use or a development which was different to the use or development which had been identified in the application for a permit. Section 53(1) reads as follows:

“53. Power to amend application for permit

(1)

At any time in the course of hearing an appeal under the Planning and Environment Act 1987 in relation to a decision of the responsible authority in respect of an application for a permit or the failure of the responsible authority to grant a permit the Tribunal hearing the appeal may, if it considers it desirable to do so, make such amendment to the application for the permit (including an amendment as to the use or development different from the use or development mentioned in the application and as to the land to the use or development of which the application relates) as it things fit and such amendment may be made upon such terms as to the giving or publication of notice of the amended application (including the giving of notice to the responsible authority) or otherwise as the Tribunal thinks just in the circumstances.

(2)

Where the Tribunal makes an amendment under sub- section (1) to an application for a permit it may adjourn the hearing of the appeal subject to such terms as to costs or otherwise as it thinks just in the circumstances."

In my view, the terms of s.53 as they now stand, after amendment, are very wide, and expressly permit an amendment such as that granted here. In Glenroy RSL v Moreland City Council and Anor 19 AATR 107 Hayne JA, with whom Brooking and Charles JJA agreed, considered the proposition that amendments to a planning application amounted to a transformation of the proposal. His Honour held, at 118:
“Even if there is to be implied some limit to the apparently ample powers given to the Tribunal by s. 53 (and I am not to be taken as deciding that there is any such limitation on the power conferred by the section) I do not accept that the changes that were proposed and allowed in this case transformed the application into a proposal radically different from the one originally put forward or amounted to the substitution of a fresh application. It may be noted that the Act expressly permits the Tribunal to allow amendment of the use of the land that is proposed and permits it to allow a change of the land the subject of the application. Plainly, then, the section is intended to confer wide powers of amendment on the Tribunal and the amendment that was allowed here was not of either of the kinds expressly mentioned in the section. In my view, the changes made to the proposal in this matter were not of the significance asserted by the appellant.”
In City of St Kilda v Perplat Investments Pty Ltd 4 AATR 358 the Full Court considered the situation where an application for a development permit was amended by the addition of the words "and use". Crockett J, with whom Young CJ and Southwell J agreed, rejected the suggestion that the change amounted to a denial of natural justice, noting at p.362, that the case had been conducted on the basis of the amended application, and that the appellant had not been prejudiced by the amendment.
A similar result applies here. In this case the actual permit application was for merely a development permit but, as earlier noted, when notice of the application was given to interested parties that notice stipulated both the development and the use which was intended. The plaintiff Group at all times knew precisely what was involved in the application and although it was contended, in general terms, that it had been prejudiced because it came to the hearing to meet only a development proposal no actual prejudice was asserted, and since the proposal was merely an extension of an already well understood use of the facility, no prejudice would have arisen.
There is no basis for quashing the decision of the Tribunal on these grounds.
THE EXERCISE OF DISCRETION
The third defendant, Urban Camp, submitted, at the outset of the hearing before me, that the proceedings should be dismissed, in the exercise of my discretion, because there was an alternative remedy provided by way of appeal to the Court of Appeal pursuant to s.52 of the Administrative Appeals Tribunal Act 1984 ("the AAT Act"). Counsel cited M & Ors v M & Ors (1993) 1 VR 391, at 396; Stefanovski v Murphy (1996) 2 VR 442, at 454; Re: Comalco Aluminium (Bell Bay) Limited; Ex Parte AWU (1995) 70 ALJR 142; R v Cook; Ex Parte Twigg (1980) 147 CLR 15, at 30. It is unnecessary to decide the case by reference to this contention, since I am satisfied that when the substantive issue are considered the plaintiff's case must fail, in any event.
Likewise, it is unnecessary to resolve the case by reference to a further submission, namely, that there was a failure to comply with Order 56.02(1) which required that the proceedings by way of judicial review must be commenced within 60 days after the date "when grounds for the grant of the relief or remedy claimed first arose". Mr Wren, counsel for Urban Camp, argued that insofar as review was sought of the decision to allow the amendment - a decision actually made on 11 February 1998 - rather than the review relating to the actual Determination - which was made on 31 March - then the proceedings were out of time, because the originating motion which launched the review proceedings was not issued until 9 May 1998. As Mr Wren conceded, the appellate courts, in other contexts, have often enough expressed displeasure at the splitting of proceedings by the bringing of applications for review or appeal from what are merely interlocutory orders made in the course of a trial. It is unnecessary to decide whether similar considerations would pertain here.
CONCLUSION

I conclude that the application for judicial review, brought by Originating Motion, should be dismissed.
I will hear the parties as to costs.
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THE ROYAL PARK PROTECTION	Plaintiff
GROUP INCORPORATED
v
W.H. TERRILL and R.J. BALL	First Defendant
- and -
CITY OF MELBOURNE	Second Defendant
- and -
URBAN CAMP MELBOURNE CO-	Third Defendant
OPERATIVE LIMITED

JUDGE:	Eames, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 1998
DATE OF JUDGMENT:	11 December 1998
CASE MAY BE CITED AS:	The Royal Park Protection Group v Urban Camp Melbourne Co-operative & Ors
MEDIA NEUTRAL CITATION:	[1998] VSC 161

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F. O’Brien	Grando & Breheny
For the Defendant	Mr. C. Wren	Best Hooper

∗	As it was lawfully used immediately before the approval date.
∗	For a use that is granted a permit.

“(a)	Prima facie, the public has ‘free and unrestricted use of it’ (per Lord Halsbury in Lambeth Overseers v London CC [1897] AC 625 at 630).
(b)	The Committee of Management are ‘merely custodians... to hold it and manage it for the use of the public’ (per Lord Herschell in Lambeth Overseers v London CC at 632).
(c)	Where, however, it was clearly ancillary to the proper regulation or conduct of the area the public may be denied access to a portion of the park (for example, keeper’s lodge, bandstand or a refreshment booth) or indeed, at certain periods, to the whole park (for example, after nightfall)...
(d)	The amount of exclusion of the free and unrestricted use by the public must be one of degree, and must have regard to the claims of time and circumstance...
(e)	But the exclusion of the public must be clearly ancillary to the management of the park. Hence, if a restaurant could not properly or sensibly be regarded merely as an amenity of or ancillary to the park, but could acquire an altogether independent status comparable to the competitive with other restaurants in Melbourne, then it would lose its character as part of the park and exist in the geographical limits of the area as an independent unit. (Sheffield Corporation v Tranter [1957] 1 WLR 843 at 854.)
(f)	...
(g)	It also seems to be established that to charge admittance is not necessarily contrary to the general proposition that the public shall have unrestricted entry into and access to the park. Again it is a question of degree.”