VBI Properties Pty Ltd v VCAT & City of Port Phillip
[2001] VSC 22
•15 February 2001
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | |
| VALUATION, COMPENSATION & PLANNING LIST | |
| Not Restricted | |
No. 5439 of 2000
No. 5452 of 2000
| VBI PROPERTIES PTY LTD (ACN 006 136 563) | First Applicant |
| And | |
| MTS MANAGEMENT SERVICES PTY LTD (ACN 004 724 798) | Second Applicant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| And | |
| CITY OF PORT PHILLIP | Second Respondent |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 23 November 2000 | |
DATE OF JUDGMENT: | 15 February 2001 | |
CASE MAY BE CITED AS: | VBI Properties v City of Port Phillip | |
MEDIA NEUTRAL CITATION: | [2001] VSC 22 | |
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Administrative Law – Review of an interim decision of the Victorian Civil and Administrative Tribunal – Whether the subject premises are being used for a purpose which is allowed by the ‘existing use rights’ attaching to the land – Whether, as a result of representations made by officers of the Second Respondent, the Second Respondent is estopped from denying that both before and after the acquisition of the subject premises by the First Applicant, such premises were being used for the purpose of a residential building.
Health Act 1958.
Interpretation of Legislation Act 1984; s 37.
Planning and Environment Act 1987; ss 6(3)(a), (b)
Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568.
City of Nunawading v Harrington [1985] VR 641.
Flynn v DPP [1998] 1 VR 322.
Minister for Immigration v Kurtovic (1990) 92 ALR 93.
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305.
Shire of Kilmore v Dally [1989] VR 314.
Shire of Perth v O’Keefe (1964) 110 CLR 529.
Spurling v Development Underwriting (Vic) Pty Ltd (1973) VR 1.
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APPEARANCES: | Counsel | Solicitors |
For the Applicants | Mr H McM Wright QC with Mr CJ Townshend | Law Partners |
| For the Second Respondent | Mr I McP Pitt | Best Hooper |
HER HONOUR:
Introduction
This is the return of two orders under the Administrative Law Act 1978 (“the Administrative Law Act”) each made on 19 May 2000 by Master Wheeler for review of an interim decision of the first respondent (“the Tribunal”) made on or about 19 April 2000 whereby the Tribunal, in each of proceedings Nos. 1999/063690 and 1999/067164 in its Planning List, decided that “the premises at 2 Enfield Street, St Kilda are not currently being used for a purpose which is permitted by any ‘existing use rights’ attaching to the land (if any).”
By order number 6 of each of the orders of Master Wheeler, the decisions under review were stayed until 4.00 p.m. on 14 June 2000 or until further order. By an order of the Court made on 14 June 2000 each of those stay orders was vacated and each decision was stayed pending the determination of these proceedings.
The building at 2 Enfield Street St Kilda apparently known as “Enfield House”, is a converted Victorian mansion, which has been registered since the 1940s as a boarding house and a common lodging house under the Health Act 1958 (“the Health Act”) and earlier legislation. The quality of accommodation provided has varied over the years with changes in the market for accommodation in St Kilda. Since the purchase of the building by the first applicant (“VBI”) in January 1987, it has been operated as a backpackers hostel by VBI and later by the second applicant (“MTS”). No planning permit has been obtained for that use, both the Council and VBI having proceeded in the past on the basis that the use of the building as a backpackers hostel was permitted under existing use rights. The issue apparently arose after the coming into operation of the new Port Phillip Planning Scheme (“the planning scheme”) prepared in accordance with the Victoria Planning Provisions approved by the Minister pursuant to section 4A of the Planning and Environment Act 1987 (“the Act”). The date of coming into operation of the planning scheme does not appear from the material before the Court, but it was at some date before the Council initiated proceedings in the Tribunal on 11 August 1999.
On that date the Council applied to the Tribunal for declarations pursuant to section 149A of the Act to the effect that (in summary):
no existing use right had been established for the use of the building or the land at 2 Enfield Street for the purpose of a backpackers hostel; and
without a permit the continued use of the building for that purpose was not permitted.
On 25 August 1999 the Council applied to the Tribunal under section 114 of the Act for an enforcement order requiring that the use of the land for a backpackers hostel cease.
Those applications were by agreement heard together, and in each one it was agreed to deal as a preliminary issue with the question:
whether the premises at 2 Enfield Street, St Kilda are currently being used for a purpose which is allowed by the ‘existing use rights’ attaching to the land.
The Tribunal found that the building was not being so used, as appears from paragraph 1 above, and that is the decision sought to be reviewed in each of these proceedings.
In the course of argument before the Tribunal it was submitted for VBI that as a result of certain representations by Council officers, the Council was estopped from denying certain matters relating to the use of the building. That submission was expressly rejected by the Tribunal, and that ruling is also sought to be reviewed in each proceeding.
It is not in issue that the Tribunal, in making the two decisions under review, was required to observe the rules of natural justice, and that each decision was otherwise such as to be reviewable in this Court on the application of the applicants under the Administrative Law Act.
The grounds on which each of the orders of Master Wheeler were made are as follows:
A)In finding that the purpose for which the building at No. 2 Enfield Street, St Kilda, is presently used is not permitted by existing use rights attaching to the building, the Tribunal misdirected itself as a matter of law in the following respects:
a)The Tribunal applied the wrong legal test or, alternatively, postulated the wrong questions, having regard to the provisions of Section 6 of [the Act]. The Tribunal considered the matter under section 6(3)(a) of the Act when the circumstances of the case required it to consider the matter under section 6(3)(b) of the Act.
b)The Tribunal was wrong in law by [sic] proceeding on the basis that it was required to identify a dominant purpose for which the premises were and are used, rather than any purpose for which the premises were and are used.
c)Had it properly directed itself, the Tribunal ought to have found that one of the purposes for which the building was used at the relevant date (10 August 1984) was the provision of accommodation on a short term basis.
d)The Tribunal erred in law by construing the existing use right too narrowly. The Tribunal ought to have held that the use of the premises for the purpose of a boarding house on the relevant date allowed its subsequent and current use for the purpose of a backpacker’s hostel.
e)Alternatively, the Tribunal ought to have held that the proper characterisation of the purpose for which the premises were used both at the relevant date and now is the provision of accommodation on a commercial basis.
f)The Tribunal erred in law by ruling that the characterisation of the purpose for which the premises are used as a boarding house depends upon whether accommodation is provided on a permanent or long term basis or, alternatively, on a short term basis.
g)Having regard to the evidence and the weight of evidence, the following findings of the Tribunal were not open to it:
(i)that on the relevant date the premises were not used for the purpose of providing short term accommodation.
(ii)that currently the premises are not used for the purpose of providing long term accommodation.
B)In finding that the Port Phillip City Council (“the Council”) is not estopped from denying that the building at 2 Enfield Street, St Kilda, was used for the purpose of a residential building shortly prior to its acquisition by the Applicant, VBI Properties Pty Ltd, in January 1987 and for a period thereafter the Tribunal misdirected itself as a matter of law in the following respects:
a)The Tribunal ought to have found that the Council can be bound by a representation of fact made by one of its officers within the ostensible scope of his authority.
b)The Tribunal ought to have found that oral representations as to the nature of the use of the premises made by Council officers prior to the acquisition of the property by VBI Properties Pty Ltd were representations of fact.
c)The Tribunal ought to have found that Council’s letter of 29 January 1987 was a representation that at or prior to that date the premises were being used for the purposes of a residential building.
d)There was no evidence to support the findings (p. 75 para 201 sub paras (v) and (vi)) that the statement or statements made by or on behalf of the Council were not relied on by VBI Properties Pty Ltd in its decision to purchase the premises.
The issues which arise under the two orders are identical, and it is not necessary in what follows to differentiate between the two matters which are before me.
Existing use rights
Legislation
It is convenient to consider first the issues relating to existing use rights. The relevant legislative provisions are section 6(3) of 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;
Sub-sections (4)and (4A) are not relevant 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.
.. .
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.
63.05Sections 2 and 3 uses
A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:
§No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
§Any condition or restriction to which the use was subject and which applies to the use in Section 2 of the zone continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
§The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
63.11Proof of continuous use
If, in relation to an application or proceeding under the Act or this scheme . . . the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.
.. .
It is common ground that the effect of clause 63.11 for present purposes is that the basic question is whether the current use of the building as a backpackers hostel can be said to be the use for which it was used on 10 August 1984, (“the relevant date”) which was the date immediately prior to 11 August 1984, being the date 15 years before the issue of the first proceeding before the Tribunal. At the relevant date the building was being operated as a commercial boarding house by an organisation known as the Open Family Foundation (“the Foundation”).
It appears that “boarding house” falls within the definition of “residential building” in the planning scheme. That expression is defined as:
Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person’s unit, dwelling group accommodation, host farm or residential village.
It is expressed to include backpackers lodge, boarding house, hostel, nurses’ home nursing home, residential college and residential hotel. However, clause 63.02 provides that 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 classifications in the planning scheme. The relevance of the classification of the building as “residential building” arises only in the context of the estoppel claim.
Case law background
A consideration of the background of provisions such as section 6(3) and clause 63 may be found 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 authorities. 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 or planning scheme which are operative in a particular case. Nevertheless, they establish a broad basis for consideration of any issue as to the protection of existing uses.
Evidence
No transcript of the evidence before the Tribunal was available, and I rely on the affidavits and exhibits before me and principally on the Tribunal’s account of what was said by the witnesses. That being so, I am, as Mr Pitt, for the Council, submitted, not in a position to find that there was no evidence to support the Tribunal’s findings of fact. (St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378 at 379 per Young CJ). Accordingly, neither ground (g) of Part A nor ground (d) of Part B of the orders for review can be sustained.
Father Maguire of the Foundation gave evidence, which appears to have been accepted by the Tribunal, as to the use of Enfield House by that organisation. He said that it accommodated people who were “down on their uppers”. They had psychological, emotional or physical problems. Another witness, Mr Lyons, community housing manager with the St Kilda Rooming House Issues Group Inc, who satisfied the Tribunal of his familiarity with boarding houses and backpackers hostels, had said that there were four categories of users of rooming house stock in St Kilda, namely:
1.Middle aged men reluctantly trading down their housing following job loss, sickness or the break-up of the family home.
2.Younger persons temporarily using rooming house accommodation during studies, travel, unemployment or upon leaving home and unable to afford a self-contained flat.
3.Long termers, including some with long term health problems and disabilities.
4.The aged who were on low incomes and had no alternatives.
Father Maguire said that the type of people generally accommodated in the building fell within those categories and he described them as long-termers and medium-termers. However, a portion of the building was retained for half a dozen “street kids”, who were short-termers. In setting out his evidence, the Tribunal did not indicate whether he defined the length of stay of the “short-termers”. He said that the purpose of accommodating the “street kids” was to give them a safer environment than the street bench or other unsavoury boarding houses. The length of stay of tenants (presumably this was a reference to the long and medium-termers) was six months to one year, some staying for several years. Many of them had no other fixed abode. There were approximately 40 people occupying the building during the Foundation’s ownership (I take it that this meant at any one time). The Foundation’s purpose was to “provide accommodation for the homeless and [for] drug addicted adolescents who were alienated from the community.” Enfield House was not operated as an institution but as a commercial venture because the Foundation needed the boarding house tenants to fund the operation commercially, when funds were unavailable from government or other charitable sources. Nevertheless, the aim of the Foundation in purchasing Enfield House was to have a facility which would accommodate the street kids, which the Foundation’s charter provided that it should assist.
The evidence of Mr Townshend, a director of both VBI and MTS was that he was interested in catering for school groups, the itinerant student market, the itinerant worker market and the traveller market. In the summer months Enfield House accommodated approximately 110 persons, with a winter minimum of 40 to 50. In summer there is a higher percentage of short-term travellers, who stay for one to three nights. He said that in winter the occupancy was 3-6 months for 60 to 70% of occupants. However, an analysis of one week’s records in August 1997 showed that 88% of the occupants that week stayed for less than seven days. It would appear from the evidence as summarised by the Tribunal that in the time of the Foundation each resident occupied one room; since 1987 the numbers were increased by the use of bunk beds and communal sleeping arrangements.
The emphasis in the marketing of premises in the building was on backpackers and the advertising brochures do not mention the expression “boarding house”. They describe the provision of such amenities as a “rooftop garden . . . just great for summer parties”, “huge noticeboard updated daily with all the information on what’s on in Melbourne including group activities”, “free nightclub passes”, “bikes available”, “international telephones”, “work noticeboard”, and “free courtesy pickup daily from ‘Skybus depot’ in Franklin Street”. Mr Townshend said in evidence that “commercial accommodation was the business and we targeted a different section of the market.” Enfield House was not the permanent home of his clientele.
Mr Lyons (see paragraph 18 above) said that in a boarding house as opposed to a backpackers hostel:
75% of tenants stay for longer than six months and 25% for longer than five years;
Each room contains a single or double bed rather than bunk beds;
The Residential Tenancies Act 1997 applies;
There is no duty manager or other permanent staff;
No information or other services are provided;
No tourists, including itinerant workers, are accommodated.
Two neighbours who had been familiar with the use of the building both before and after its purchase by VBI, described it as formerly a boarding house but now a backpackers hostel. In addition to describing the change in the type of occupier, consistently with the evidence referred to above, they described loud radio music, noise from guitars, groups talking loudly on balconies and on the rooftop garden, loud parties, loud car noises, and congregations of young people on holiday who intended to have a good time, and who stayed for a short period without commitment to responsible behaviour.
One of those neighbours, Mr Cook, had an additional familiarity with the premises because he had leased three garages at the rear of the premises from the Foundation for a 15 year term and used them for the storage of tools and garaging of a motor vehicle.
The Tribunal posed the questions to be answered in order to determine the issue set out in paragraph 5 above in the following terms:
Firstly, for what purpose was the land lawfully used immediately prior to the relevant date? . . .
Secondly, for what purpose is the land currently being used?
Thirdly, is the purpose for which the land is currently being used different to the purpose for which the land was lawfully used immediately prior to the relevant date?
In answer to those questions the Tribunal first found that the use of the building immediately prior to the relevant date was as a boarding house. It defined “boarding house” as:
premises which do not comprise self-contained facilities, generally used to house persons as their settled or usual abode, or at least their permanent place of abode for the time being.
It went on to say that the housing of the “street kids” did not change that purpose, given that the purpose of so doing was to give those children a settled abode, away from parks and benches. The dominant purpose of the use by the Foundation was still as a commercially operated boarding house.
Secondly, it found that the use of the premises since 1987 was as budget tourist accommodation, colloquially a “backpackers hostel”. This conclusion was based on:
The change from long-term to short-term customers;
The change from persons who had no other home to accommodation primarily for travellers;
The change in marketing from monthly to nightly lets;
The seasonal nature of the business, with emphasis on filling the rooms with short-term customers;
The increase in the number of persons in each room;
Marketing to tourists and travellers;
The promotion of tourist activities and provision of tourist information;
The promotion of social nights and collection of travellers from the Skybus depot.
Thirdly, it found that the use since 1987 was use for a different purpose than the use immediately prior to the relevant date, which would have been preserved by the existing use right.
Submissions of the applicants
The principal submission of Mr Wright, for the applicants, began with the proposition that where there was any conflict between section 6 of the Act and clause 63 of the planning scheme, the statute must override the subordinate legislation constituted by the planning scheme. When one looked principally at the Act, it was apparent that the questions posed by the Tribunal and set out in paragraph 25 above were phrased in terms of section 6(3)(a), which relates to vacant land, and that this was the wrong test; the questions should have been phrased in terms of section 6(3)(b), which relates to buildings. That meant that the Tribunal should have referred to the section as protecting “any purpose”, in accordance with section 6(3)(b), and not “the purposes”, in accordance with section 6(3)(a). It was not appropriate, in considering the use of a building in this context, to look, as the Tribunal had done, for continuity of a single purpose, or for a dominant purpose. If at the relevant date the building was lawfully being used for more than one purpose, any of those purposes was protected by section 6(3)(b).
On that basis, Mr Wright submitted, if the proper test of whether a building was a boarding house was, as the Tribunal had found, whether it was used for permanent (or long-term) or for temporary (or short-term) accommodation, then the evidence showed that the building was being used at the relevant date for both of those purposes, that is, as a boarding house, with permanent occupants, and as a place where short-term accommodation was provided. This was because the evidence was that the half dozen “street kids” out of 40 potential residents at any time were short-term occupants. Accordingly, the use of the building for short-term accommodation was protected by section 6(3)(b).
It is clear, and Mr Pitt, for the Council, conceded, that the applicable provision is section 6(3)(b), relating to a building, and not section 6(3)(a), relating to “land upon which no buildings or works are erected”. Ground (a) of Part A of the orders for review is accordingly made out. However, for present purposes that is a distinction without a difference. Section 37 of the Interpretation of Legislation Act 1984 provides that in an Act, unless the contrary intention appears, words in the singular include the plural, and words in the plural include the singular. I see no contrary intention in section 6(3). That being so, there is little difference, if any, between the expression “the purposes” and the expression “any purpose”. Either expression directs attention to the possible existence of more than one purpose which may be protected by that provision.
Nevertheless, the question must be looked at realistically. Mr Cook, as had been said, leased three garages at the rear of Enfield House from the Foundation for a fifteen year term and used them to garage his car and to store his tools of trade. Let it be assumed (a matter which does not appear from the Tribunal’s summary of his evidence) that that lease was operative at and since the relevant date. Let it be further assumed that the issue in the present case arises from VBI’s desire to use the premises not as a backpackers hostel, but for the leasing out of garages and storage areas. Would that use be protected by section 6(3) of the Act as an “existing use”? Another question may be put. In the context of the present application, let it be assumed that at and since the relevant date, one room only at Enfield House was reserved for a “street kid” on a short-term occupancy. Could it still be argued that short-term occupancy was a purpose for which the building was used at that date and was a use protected by the section?
This Court does not need to answer either of those questions. But to pose them provides some assistance in considering the approach of the Tribunal to answering the question which was before it. As Kitto J pointed out in Shire of Perth v O’Keefe (see paragraph 14 above) the characterisation of a use “will often be a question of fact and degree”. As I have found, both paragraphs of section 6(3) effectively allow consideration of more than one purpose for which the property in question was used at the relevant date. That being so, it is in my view appropriate, when determining the question of whether a use is protected by section 6(3), in circumstances where there is evidence of more than one prior use, to do as the Tribunal did and adopt the approach of looking for the continuity of a “dominant purpose”. Ground (b) of Part A of the orders for review accordingly fails. Further, in adopting that approach, the Tribunal specifically took into account the short-term accommodation of “street kids”. Ground (c) of Part A accordingly fails.
Mr Wright submitted further that it was in any case inappropriate to do as the Tribunal had done and use, as the test for distinguishing whether or not the building was still being used for the purpose of a “boarding house”, the question of whether the people residing there were using it as their permanent (or long-term) place of abode or not. In his submission, the question of whether the building was or was not the permanent place of abode of those residing in it was not a planning consideration, any more than the colour of their hair or their ability to drive a car. The distinction appeared in the Health Act definitions of “boarding house” and “common lodging house” but not in any planning legislation or in the relevant planning controls over the years. Further, as a matter of general usage, Mr Wright submitted, “boarding house” did not import as a characteristic that it was the permanent place of abode of those staying there.
He produced definitions of “boarding house” from the Macquarie Dictionary and the Oxford English Dictionary, neither of which included any reference to the permanent or temporary nature of the accommodation provided. However, “boarding house” is an ordinary English expression, the meaning of which is accordingly a question of fact, and not a question of law. (See the discussion by Tadgell J in Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284 at 290 and following.) I do not find any error of law in the Tribunal’s consideration of the meaning of that expression, which is a matter within its jurisdiction. I would, in any case, refer to the well-known passage from Spurling v Development Underwriting (Vic.) Pty. Ltd. (1973) VR 1 at 11 where Stephen J said:
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
Grounds (d) and (f) of Part A of the orders for review accordingly fail.
I should add that in summarising what he submitted was the Tribunal’s test for distinguishing a “boarding house”, Mr Wright appears to have fallen into error. The Tribunal’s use of “generally” and ”for the time being” moderates the test, which is not as clear-cut as his submissions assumed.
Mr Wright submitted finally that the present use did, in any case, fall within the parameters of a “boarding house”. The nature of that use, he submitted, was essentially the provision of accommodation on a commercial basis. Accepting the finding of the Tribunal that that was the use at the relevant date, the use as a backpackers hostel could only be regarded as a subset of the use as a boarding house. Similarly, a facility catering, on a similar basis, only for elderly persons, or nurses, or students, would also be properly described as a boarding house. This again is a question of fact within the jurisdiction of the Tribunal and not a matter for consideration in these proceedings. Ground (e) of Part A of the orders for review accordingly fails.
For the reasons given I find only ground (a) of Part A of the orders for review to be made out. These matters are brought under the Administrative Law Act, and the powers of the Court are set out in section 7 of that Act. What the applicants are seeking is a remedy in the nature of certiorari to quash the ruling of the Tribunal on the agreed preliminary question.
In Flynn v DPP [1998] 1 VR 322, after a careful analysis of the relevant authorities, McDonald J said at 340:
For this court to grant relief to quash an order of an inferior court, in the nature of certiorari if an error of law is demonstrated to exist on the face of the record, including the reasons for decision of the judicial officer, it is my opinion that what must be demonstrated is that the error is so fundamental to the decision of the court as to strike at the very roots of its order and to invalidate it. Other errors of law on the face of the record of an inferior court, including the reasons for decision, would not entitle this court in the exercise of its supervisory jurisdiction to grant relief in the nature of certiorari to quash the order of that court.
I would with respect adopt that passage as being as relevant, in the present case, to the decision of the Tribunal, as to the decision of an inferior court. In the light of my other findings, it cannot be said that the making out of ground (a) of Part A of the orders for review is fundamental to the decision of the Tribunal so as to lead to a decision to quash the ruling of the Tribunal.
Estoppel
The claim of the applicants is that as the result of representations made by Council officers and the conduct of the Council and its officers prior to and at the time of VBI’s acquisition of the building, the Council is estopped from denying:
(a)that shortly before its acquisition by VBI the building was being used for the purpose of a residential building.
(b)that after the acquisition of the building by VBI it was being used for the purpose of a residential building initially by VBI and more recently by MTS.
Evidence
As stated in paragraph 17 above, no transcript of the evidence was available, and again I rely principally on the Tribunal’s account of what was said by the witnesses. On this issue I was also assisted by the notes of Ms McIndoe, solicitor for the mortgagee of the building, who had been present at parts of the hearing before the Tribunal.
The claim was based on the evidence of Mr Townshend, who said that prior to his purchase of the property, between 11 and 15 January 1987, in order to ascertain whether a planning permit was required, he had had a conversation with Mr Widdicombe, a junior town planning officer of the Council. The Tribunal said of that conversation:
Mr Townshend states that Mr Widdicombe said his proposal would be regarded by council as a residential building. Mr Townshend said that when he asked Andrew Widdicombe for confirmation in writing, he was advised that he would need to formally apply for confirmation and the letter would be referred to the head planner. He handwrote a request for confirmation on the spot, but did not retain a copy. Council also has no copy of such request for confirmation in its files. The only reference to anything written is a reference in a letter dated 29 January 1987 from George Bennett, Town Planner with the City of St Kilda . . .
That letter relevantly reads:
Dear Mr Townsend [sic]
Re: Proposed Youth & Student Hostel.
I refer to your letter of the 16th January 1986. I can confirm that a Town Planning Application for a Youth & Student Hostel would be considered under the Melbourne & Metropolitan Planning Scheme definition of “residential building”.
The Tribunal continues:
Mr Townshend did not wait for written confirmation from the Council but instead went ahead and entered into a contract for the purchase of 2 Enfield Street, St Kilda on 21 January 1987. This was over a week prior to receipt of the planning department’s alleged characterisation letter dated 29 January 1987. Under cross-examination, Mr Townshend gave evidence that the contract of sale permitted him a ‘let-out’ if the confirmatory letter did not arrive. However, when the contract of sale was produced on day six of the hearing, this matter was not raised again. My reading of the contract of sale is that there is no shred of special condition permitting an ‘out’ if that written representation from the council was not forthcoming. In other words, it was an unconditional contract of sale.
There are other instances of gaps/deficiencies in the evidence given by Mr Townshend. For example, Mr Townshend gave oral evidence of his representation to council that he was targeting ‘travellers, youth groups and students’. His written request for characterisation is missing. However the reply dated 29 January 1987 is headed ‘Re: Proposed Youth and Student Hostel’ with the word ‘travellers’ missing. At best, all that can be said is that Council only partly answered his question.
The Tribunal continued later at 43:
[After receipt of the letter of 29 January 1987] Mr Townshend went away, checked the planning scheme himself and decided privately that his proposal did not require planning permission as it had existing use rights.
It is not in issue that Mr Townshend is a solicitor, who at the relevant time had experience in conveyancing and in the application of planning law in that context.
The notes taken by Ms McIndoe on the sixth day of the hearing, the accuracy of which was not challenged, under the heading “DT” for “evidence of David Townshend” contain the following passage:
Produced contract to purchase. Knew they couldn’t deliver vacant possession b/c lease of garage undisclosed so knew I could walk from contract if I needed to.
There is no reference to this evidence in the decision of the Tribunal, and it is clearly relevant to the finding that there was no ‘let out’ in the contract of sale.
Discussion
Section 14 of the Act provides that the duties of the Council, as responsible authority for the administration and enforcement of the planning scheme are:
(a)to administer and enforce the planning scheme; and
(aa)to enforce any enforcement order or interim enforcement order relating to land covered by [the planning scheme]; and
(b)to implement the objectives of the planning scheme; and
(c)to comply with [the] Act and the planning scheme; and
(d)to prove information and reports as required by the regulations.
In Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 109, Gummow J quoted with approval what he described as the “generally accepted principle” from Halsbury’s Laws of England, 4th ed, vol 44 “Statutes” para 949 in the following terms:
Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.
His Honour went on to consider at some length a number of possible exceptions to that principle, none of which is applicable in the present case. The effect of that principle is that prima facie the claim of the applicants must fail.
However, Mr Wright submitted that that principle did not apply where the representation made was one of fact as opposed to law. The representations in issue here related to how the Council would treat the application in terms of land use characterisation, which was a question of fact. He relied on the judgment of Windeyer J in Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 where His Honour said at 577:
The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. . . . But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. . . . It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 was relied on. . . There the Corporation had, by its engineer, said that its permission for the use of land as a builder’s yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder’s yard. That is to say, the Corporation had in effect said to the respondent company there, “you do not need our permission; we have no discretion to prevent your action”. In the present case, on the other hand, the Council said in effect, “you do need our permission; we have a discretion which we have exercised in your favour”. It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn.
In my view, that passage is not applicable to the matter with which I am concerned. It is in effect argued for the applicants that the representation on which the applicants claim to have relied was akin to that made in Southend-on-Sea Corporation, as summarised by Windeyer J. The argument is that it was a representation which led Mr Townshend to conclude, after his examination of the planning scheme, that his proposed use was protected by existing use rights, and thus, it was a representation that, as a matter of fact and law, the Council had no discretion to prevent him from proceeding with that use. Assuming, without deciding, that the Council officers represented unequivocally to Mr Townshend that the building was at the relevant time a “residential building” for the purposes of the planning scheme, and that his proposed use would also be use as a “residential building”, that was not a representation of the kind which was made in Brickworks, to the effect that the Council had a discretion which it had exercised irrevocably in favour of the applicant for a permit.
Gummow J in Minister for Immigration v Kurtovic quotes a number of judicial and other observations setting out justifications for the principle set out in paragraph 47 above. It is not necessary to reproduce those observations here. Suffice it to say, that the distinction between a representation of fact and a representation of law does not appear to me to have any relevance to the justification for, or the operation of, the principle.
Southwell J considered the principle in Shire ofKilmore v Dally [1989] VR 314 where it was submitted that a municipal council was estopped from denying that it had the power to grant a particular planning permit. After considering a number of authorities his Honour concluded at 321-2:
But perhaps the dictum most apt for the present case is that of Lord Greene MR in Minister of Agriculture and Fisheries v Hulkin (unreported) quoted by Cassels J in [Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148] at p. 154:
The power given to an authority under the statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel.
See also R v Rushbrooke [1958] NZLR 877. And in Rhyl UDC v Rhyl Amusements Ltd [1959] 1 All ER 257, at p. 265, Harman J in dealing with the question of estoppel from denying the validity of a lease said:
If the plaintiffs were private people this would be a strong plea, but in my judgment a plea of estoppel cannot prevail as an answer to a claim that something done by a statutory body is ultra vires.
See also Nicholas v State of Western Australia [1972] WAR 168, per Jackson CJ, at p. 174.
In my opinion, the Shire cannot here be estopped from denying the existence of the power to grant the respondents' application. The logic of the issue might be tested by asking: What if a neighbour of the respondents, aggrieved by notice that the Shire intended to grant the application, and, having standing to sue, claimed an injunction restraining the Shire from the ultra vires act?
The conduct of the Shire qua the respondents could not constitute an answer to the claim.
I would, with respect, adopt those observations, which are apposite in the present context.
For these reasons, ground (a) of Part B of the orders for review must fail, and grounds (b) and (c) become irrelevant. I have already dealt with ground (d) (see paragraph 17 above).
Conclusion
There will be orders that the orders for review be discharged and the matters remitted to the Tribunal for determination according to law. Counsel may wish to make submissions as to costs, and as to the continuance of the stay.
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