Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council
[2001] VSC 302
•24 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 4777 of 2001
| SORRENTO APARTMENTS PTY LTD (ACN 006 202 964) | Appellant |
| v | |
| MORNINGTON PENINSULA SHIRE COUNCIL | Firstnamed Respondent |
| and | |
| P & G MADDEN, CK WATT, J GIBSON, F HALL and A REID | Secondnamed to Sixthnamed Respondents |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July & 1 August 2001 | |
DATE OF JUDGMENT: | 24 August 2001 | |
CASE MAY BE CITED AS: | Sorrento Apartments v Mornington Peninsula Shire Council | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 302 | |
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Planning – Appeal from the Victorian Civil and Administrative Tribunal – the applicant was refused a permit by the respondent Council for the construction of a six unit integrated development – an application was made to the Tribunal to review the Council’s decision and the Tribunal upheld the decision – the applicant now appeals against the Tribunal’s decision – “existing use” provisions in town planning schemes - what existing use rights are protected by planning schemes and legislation – what effect do the provisions of the relevant enactment/s give to the protection - the distinction between “use” and “development” and the effect of that distinction.
Interpretation of Legislation Act 1984 – sections 3 and 37.
Planning and EnvironmentAct 1987 – sections 3(1), 6(3), and 7(4).
Victorian Civil and Administrative Tribunal Act 1998 – section 148.
City of Nunawading v Harrington [1985] VR 641.
Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 34 LGRA 151.
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305.
Shire of Perth v O’Keefe (1964) 110 CLR 529.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Dreyfus QC | Peter Lustig |
| For the Firstnamed Respondent | Mr A Hooper QC | Deacons |
HER HONOUR:
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by Deputy President Horsfall, on 7 February 2001 in its Planning List. Leave to appeal was granted by this Court on 30 March 2001.
The decision under appeal in effect affirmed a decision of the firstnamed respondent (“the Council”) as responsible authority in refusing to the applicant a permit for the construction of what was described as “a six unit integrated development”. The application for a permit related to two back to back blocks of land, each on a separate certificate of title, at Sorrento, one block being described as 11 Albany Court and the other as 14 Bowen Road. It is convenient here to refer to both together as “the subject land”.
There was no appearance for the secondnamed to sixthnamed respondents, who were objectors to the grant of the permit. However, I note that the solicitor who had represented them at the hearing before the Tribunal indicated by letter to the Court that, in respect of the application for leave to appeal his clients were content to adopt the argument addressed to the Court for the Council, and it was understood at the hearing that that continued to be the case.
There are at present six single storey units on the subject land. They were constructed prior to 1967 and there was evidence before the Tribunal that two were erected on the Albany Court property and four on the Bowen Road property and that they had been used for short and long term rental accommodation. The appellant is the owner of the subject land and proposes, if the permit is granted, to demolish those units and replace them with six double storey detached dwellings.
The subject land is zoned Residential 1 under the Mornington Peninsula Planning Scheme (“the planning scheme”), and by virtue of clause 32.01-1 of the planning scheme, “Dwelling (other than Bed and breakfast)” is a section 1 use for which a permit is not required. (The exception for Bed and breakfast is not relevant to this matter.) However, under clause 32.01-4 a permit is required to construct two or more dwellings on a lot. The planning scheme includes in its local provisions a Design and Development Overlay (“DDO”), Schedule 3 of which affects the subject land. Schedule 3 includes the following provision (“the DDO 3 requirement”):
No more than one dwelling, excluding a dependent relative unit, may be constructed on a lot.
(The reference to a dependent relative unit is not relevant to this matter.)
“Lot” is relevantly defined in clause 72 of the planning scheme as “A part (consisting of one or more pieces) of any land (except a road, a reserve, or common property) shown on a plan, which can be disposed of separately . . .”. The subject land, by virtue of being comprised in two certificates of title, thus occupies two lots.
It is not in issue that the existing use of the subject land is protected by the provisions of section 6(3) of the Planning and Environment Act 1987 (“the Act”) and clause 63 of the planning scheme. Section 6(3)(a) and(b) of the Act provide:
(3)Subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall –
(a)prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b)prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation;
Subsections (4) and (4A) have no relevance to this matter.
Clause 63 of the planning scheme relevantly provides:
63.01Extent of existing use rights
An existing use right is established in relation to use of land under this scheme if any of the following apply:
§ The use was lawfully carried out immediately before the approval date.
§ . . .
§ Proof of continuous use for 15 years is established under Clause 63.11.
§ . . .
63.02Characterisation of use
If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.
63.04 Section 1 uses
A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met.
63.10 Damaged or destroyed buildings or works
If at least 50 percent of the gross floor area of a building or at least 50 percent of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with this scheme, unless a permit is granted to continue the use, and to construct or carry out buildings or works.
The Tribunal affirmed the decision of the Council on the following grounds, set out in paragraph 56 of its reasons:
·The existing use rights referred to in [Section] 6(3) of the Act and in Clause 63 of the scheme do not extend to the development of six new buildings on the site.
·There is no inconsistency between [the DDO 3 requirement] and Section 6(3) of the Act and Clause 63 of the scheme.
·[The DDO 3 requirement] prohibits the construction of the six units.
Having reached its decision on those grounds, it was not necessary for it to consider the planning merits of the application and it did not do so.
Section 6(3) establishes only a minimum level of protection of existing use, and the protection of the use of the subject land here derives from clause 63 rather than from that section.
There was some discussion at the hearing as to the nature of the use which was protected, and the extent to which that issue had been considered before the Tribunal. Assistance in the consideration of that question may be found in the authorities.
In the judgment of the Court of Appeal of the Supreme Court of New South Wales in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, McHugh JA, with whom Hope and Samuels JJA agreed, said at 309-10:
The object of “existing use” provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because “existing use” provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an “existing use” so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.
At a similar level of generality Kitto J, with whom Menzies and Owen JJ agreed, said in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535 that the application of the law in a particular case was to be approached
by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date
and when a later use was challenged as not being authorised
whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree . . . and for that reason border-line cases will inevitably arise in which opinions will differ.
Also of assistance is City of Nunawading v Harrington [1985] VR 641 in which at 644-5 Kaye, McGarvie and Marks JJ set out a number of broad principles which they regarded as having emerged from the cases. Principle 6 reads:
In the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: see Mason ACJ, Deane and Dawson JJ in Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295, at p 300; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1, at p 25; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, at p 144.
The issue before the Full Court in that case was whether land formerly used for a bakery, but now for the storage of plant, equipment and ingredients used for bakery purposes, could still be regarded as used for a bakery. Their Honours said at 645:
The use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served.
All of those passages must, of course, be read in the light of the provisions of the particular statute, planning scheme or other enactment which was relevant in the particular case. Nevertheless, they establish a broad basis for consideration of any issue as to the nature of the existing use which is protected by provisions such as section 6(3) and clause 63. Bearing those passages in mind, and noting the provisions of clause 63.02 of the planning scheme as to the characterisation of use for this purpose, I would be inclined to the view that the purpose of the actual use at all relevant times is most appropriately described as “residence”, a term which is not defined as a “land use term” in the planning scheme. However, in view of the conclusion I have reached, it is not necessary for me to determine the question in any final way. Whether the protected use is “residence”, “dwelling”, “dwellings”, or “six units used for long and short term rental accommodation”, for present purposes the significant fact which remains is that what is protected is a use.
The Tribunal at paragraphs 32 to 34 of its Reasons found that clause 63 protects use, but that the DDO 3 requirement is a control on development, not a control on use.
By virtue of clause 71 of the planning scheme, terms used in the planning scheme have their ordinary meaning, unless defined in the planning scheme itself, in the Act, or in the Interpretation of Legislation Act 1984 (”the Interpretation Act”). The words “use” and “development” are not defined in the planning scheme, but section 3(1) of the Act provides:
In this Act—
“development” includes—
(a)the construction . . . of a building; . . .
“use” in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed.
There is a clear distinction there between “use” and “development”. As the Tribunal pointed out, the DDO 3 requirement prohibits the “construction” of more than one dwelling on a lot, and “construction of a building” is included within the definition of “development”. Further, there are many provisions in the Act where the expressions “use” and “development” are used together in such a way as to emphasise the intention that a distinction is to be drawn between them. See for example sections 4(1)(a), 4(2)(b), (d) and (f), 6(1)(b), 6(2)(b), (d) and (e), 8(1A), 12(1)(b), 12(3)(b), and 12A(3)(a).
Mr Dreyfus submitted that in seeking a permit to construct six units for short and long term rental accommodation, the applicant was doing no more than continuing its existing use of the site. While that may be so in ordinary parlance, the definitions in the Act, applicable by virtue of clause 71 of the planning scheme, draw a distinction between “use” and “development” which is fundamental to the design of the planning scheme.
Mr Dreyfus submitted further that to accept the decision of the Tribunal would be to strip existing use rights of most or all of their meaning. However, the limitation on existing use rights will only arise where, as in this case, the planning scheme contains a specific restriction on the development which can be carried out on the land the use of which is protected.
Mr Dreyfus relied on a number of authorities, some of which are referred to above. However, as I have said, those authorities must be read in the light of the provisions of the particular statute, planning scheme or other enactment which may be operative in a particular case, and many of them are concerned with the application of provisions significantly different from those with which I am concerned. Further, they are concerned largely, as in the passages which I have cited, with the nature of the existing use which is protected by the provisions in question. The determination of the nature of the protected use is the first step only. Having made a finding on that point, it is then necessary to consider the effect which the provisions of the relevant enactment or enactments give to that protection. In the present case, among the provisions which determine that effect is the DDO 3 requirement, which is a control on the development which may be carried out on the land in the course of the enjoyment of the existing use.
It will be apparent from what I have already said that I find no inconsistency between the DDO 3 requirement and clause 63.04 calling for resolution by the application of section 7(4) of the Act.
Section 37 of the Interpretation Act relevantly provides that in a subordinate instrument, unless the contrary intention appears, words in the singular include the plural. The definition of “subordinate instrument” in section 3 of the Interpretation Act reads:
In this Act, unless inconsistent with the context or subject-matter—
“subordinate instrument” means an instrument made or to be made under or pursuant to the provisions of an Act, being an instrument that—
(a)is a statutory rule; or
(b)is not a statutory rule but—
(i)contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or
(ii)is of a legislative character.
It is clear that a planning scheme made pursuant to the provisions of the Act is a subordinate instrument as there defined, and accordingly, words in the singular in the planning scheme include the plural unless the contrary intention appears. However, a contrary intention in respect of the word “dwelling” in the Residential 1 Zone appears from the relationship between the provisions of clauses 32.01-1 and 32.01-4 and also, in relation to land subject to the DDO 3 requirement, from the terms of that requirement. That being so, it is not necessary to consider whether clause 71 of the planning scheme, which imports into the planning scheme the definitions contained in the Interpretation Act, but not the other provisions of that Act, also manifests a contrary intention.
The conclusion which I have reached as to the distinction between “use” and “development” and the effect of that distinction in the present case is consistent with the finding of the High Court (Menzies, Gibbs and Mason JJ), on an appeal from a decision of Gowans J of this Court, in Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 34 LGRA 151, although the Court there was not concerned with the provisions with which I am here concerned, but with the provisions of the Town and Country Planning Act 1961 (“the T&CP Act”), a forerunner of the Act.
The appellant in that case owned land which was being subdivided for sale, in accordance with an appropriate permit. An interim development order came into force prohibiting the use or development of the land, save in accordance with the provisions of the order. Section 17 (1D) of the T&CP Act was in similar terms to section 6(3), providing that nothing in the order “shall prevent the continuance of the use of any land for the purposes for which it was being lawfully used immediately before the coming into operation of the order . . .” The definition of “use” in the T&CP Act was identical with the definition now appearing in the Act and cited in paragraph 17 above. The definition of “development” included “subdivision”, as does the present definition. The High Court said at 152:
The appellant’s case in essence is that the expression “use of any land” in s 17(1D) comprehends development of land including subdivision and ultimately sale. However, reference to other provisions in the Act makes it clear that the word “use” in the subsection does not extend to development or subdivision, let alone sale. The provision, it will be noted, permits continuance of the use of land but makes no reference to development or subdivision. The omission is significant for in other parts of the section, notably sub-ss. (1), (1B) and (1C), the word “use” appears in association with the word “development” in the expression “use or development”.
And at 153, after referring to the definitions of “use” and “development” in the T&CP Act:
When these definitions are read together it is apparent that development and subdivision do not as such fall within the statutory definition of “use”; what the statutory definition does is to include use for the purpose for which the land is being developed or subdivided, e.g. use for residential purposes. The definition suggests, in conformity with what has already been said, that neither development nor subdivision by itself constitutes a “use” in the sense in which that word is used in s.17(1D).
Given the considerable similarity in the relevant provisions, and reading “construction” for “subdivision”, those passages are directly applicable to the matter before me.
For the reasons given, I find no error of law in the decision of the Tribunal. The appeal will be dismissed. Counsel may wish to make submissions as to the orders to be made consequent upon that finding.