Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council

Sorrento Apartments Pty Ltd, the applicant, filed an appeal against a decision of the Mornington Peninsula Shire Council, the respondent, which had refused the applicant’s permit for the construction of a six unit integrated development. The applicant had previously sought review of the Council’s decision from the Victorian Civil and Administrative Tribunal (VCAT), which upheld the Council’s decision. The applicant’s appeal is to the Supreme Court of Victoria, challenging the VCAT’s decision on the interpretation of the “existing use” provisions within the town planning schemes and the relevant legislation, as well as the distinction between “use” and “development”.

The primary legal issue before the court was the interpretation of the “existing use” provisions within the town planning schemes and the relevant legislation, and whether the permit refusal by the Council was justified. The applicant argued that the proposed development was an existing use, which should have been protected under the legislation, while the Council maintained that the proposal constituted development, not an existing use, and thus required a permit. Another issue was the effect of the relevant provisions of the Planning and Environment Act 1987 and the Interpretation of Legislation Act 1984, as well as the distinction between “use” and “development” and its implications on the protection provided by the planning schemes.

The court found that the proposed development did not constitute an existing use protected by the planning schemes and the relevant legislation. The court examined the statutory language and considered the decisions in City of Nunawading v Harrington, Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works, Royal Agricultural Society of New South Wales v Sydney City Council, and Shire of Perth v O’Keefe, to determine the meaning of “existing use” and the distinction between “use” and “development”. The court held that the Council’s decision to refuse the permit was correct, as the proposed development was not an existing use but a new development requiring a permit.

The Supreme Court dismissed the appeal, affirming the decision of the VCAT and the Council’s refusal of the permit for the proposed development.