Wood v City of Brimbank
[1998] VSC 21
•11 August 1998
SUPREME COURT OF VICTORIA
VALUATION COMPENSATION AND PLANNING LIST
Not Restricted
No. 7835 of 1997
IN THE MATTER of an Appeal under section 52 of the Administrative Appeals Tribunal
| JAMES WOOD | Appellant |
| v | |
| CITY OF BRIMBANK | Firstnamed Respondent |
| - and - | |
| KEILOR CEMETERY TRUST | Secondnamed Respondent |
| - and - | |
| BAPTIST UNION OF VICTORIA | Thirdnamed Respondent |
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| JUDGE: | Balmford, J. |
| WHERE HELD | Melbourne |
| DATE OF HEARING: | 30 June 1998 |
| DATE OF JUDGMENT: | 11 August 1998 |
| MEDIA NEUTRAL CITATION | [1998] VSC 21 |
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PLANNING - responsible authority refused to grant a planning permit for the development and use of a brothel - appeal against that decision was disallowed by the Administrative Appeals Tribunal - appeal to the Court on a question of law - effect of the repeal of the Administrative Appeals Tribunal Act 1984
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Administrative Appeals Tribunal Act 1984 (Vic) s.52
Planning and Environment Act 1987 (Vic) ss.60(1)(b)(i), 77
Planning Appeals Act 1980 (Vic) s.27
Prostitution Control Act 1994 (Vic) ss.4, 73, 74
Interpretation of Legislation Act 1984 (Vic) ss.14(2), 35
Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic) s.310
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.148
Brimbank Planning Scheme clauses 16-2, 124
Slapjums v. City of Knox (No.2) [1978] VR 545
Transport Accident Commission v. Hoffman [1989] VR 197
Portland Properties Pty Ltd v. Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Body Corporate Strata Plan No. 4166 & Ors v. Stirling Properties Ltd (No.2) [1984] VR 903
Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675
Michaelis Bayley (Vic) Pty Ltd v. Melbourne & Metropolitan Board of Works & Ors (1980) 44
LGRA 65
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| APPEARANCES: | Counsel | Solicitors |
| Appellant | Mr A Southall QC | Tartaglia & Associates |
| Firstnamed Respondent | Mr M Dreyfus | Maddock Lonie & Chisolm |
| Secondnamed and | Mr D Klempfner | Phillips Fox |
| Thirdnamed Respondents |
HER HONOUR:
On 8 April 1997 the firstnamed respondent (“the Council”), against the recommendation of its Planning Department, resolved to refuse to grant the application of the appellant for a planning permit for the development and use as a brothel of certain land owned by the appellant in Ely Court, Keilor. The appellant appealed against that decision to the Administrative Appeals Tribunal (“the Tribunal”) in its Planning Division under section 77 of the Planning and Environment Act 1987 (“the Planning Act”) as that provision then stood. On 10 October 1997 the appeal was disallowed by the Tribunal constituted by Mr Liston and Ms Monk, Members, and no permit was granted. The secondnamed respondent (“the Cemetery Trust”), and the Keilor Baptist Church, represented by Robert Lewis Hayes, (“the objectors”) appeared as objectors before the Tribunal. The determination of the Tribunal is reported at 10 AATR 189.
This is an appeal under section 52 of the Administrative Appeals Tribunal Act 1984 (“the AAT Act”), which was in force at the relevant time, against the decision of the Tribunal. The objectors were the secondnamed and thirdnamed respondents to the appeal. On 27 February 1998 an application that Robert Lewis Hayes and Keilor Baptist Church be removed as thirdnamed respondents and replaced by “The Baptist Union of Victoria” was granted by the Court.
It was sought to put certain fresh evidence before the Court, which had not been in the material before the Tribunal, but by mutual consent those attempts were, rightly, abandoned. See Slapjums v City of Knox (No.2) [1978] VR 545 in which McInerney J considered the limited circumstances in which the power, on an order nisi to review, to admit fresh evidence, should be exercised.
The subject land
The subject land is vacant, apart from a shed used for storage. According to the submission of the Council to the Tribunal, it is zoned Restricted Light Industrial under the Brimbank Planning Scheme (“the planning scheme”), in respect of which the Council is the responsible authority. The land is close to the interchange between the Calder Highway and the Western Ring Road, so as to be effectively surrounded on the north, east and south by freeways, from which it is separated only by a narrow strip of land. Ely Court is a dead-end street.
The Keilor Cemetery, which is owned by the Cemetery Trust, is to the west of the subject land. In the submission made to the Tribunal on behalf of the appellant, it was stated that the eastern boundary of the cemetery is “200 metres or thereabouts” from the western boundary of the subject land, and it does not appear that this statement was challenged.
The land between the Keilor Cemetery and the subject land (“the vacant land”) has been purchased by the Cemetery Trust with a view to future expansion of the cemetery. It was stated at the hearing before the Court that part only of the vacant land had been so purchased. However, the Tribunal found that the whole of the vacant land had been purchased by the Cemetery Trust, and this finding appears to have been based on the submission of the Cemetery Trust which was before the Tribunal. Further, it was stated at the hearing that the whole of the vacant land was in a Restricted Light Industrial Zone, under which a cemetery is a prohibited use. However, the Tribunal found that the vacant land was partly in a Restricted Industrial Zone and partly in a Proposed Public Purposes Reservation (Cemetery) and this finding appears to have been based on the submission of the Council which was before the Tribunal.
Legislation
There are a number of statutory (or subordinate) provisions applicable to the consideration of the appeal by the Tribunal, beginning with section 27 of the Planning Appeals Act 1980 (“the Appeals Act”), which was in force at the relevant time, and which provides, so far as here relevant:
27. In determining an appeal the Tribunal (in addition to any other matters which the body against whose determination the appeal is made could properly take account of or have regard to in making its determination) -
(a) shall take into account any relevant planning scheme; (b)
shall have regard to the objectives of planning in Victoria under the [Planning] Act;
...
(j)
shall take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act under which the appeal is made to take account of in determining such an appeal.
As to paragraph 27(a) of the Appeals Act, the planning scheme provides that a brothel is a discretionary use in a Restricted Light Industrial Zone; that is, it is a use which may be permitted by the responsible authority.
Clause 16-2 of the Metropolitan Regional Section of the planning scheme provides as follows, so far as relevant (numbers having been inserted here for ease of reference):
Guidelines for approval
The responsible authority must consider the following matters before deciding on an application,...:
(i) If appropriate, the matters set out in Section 60 of the [Planning] Act.
(ii) The State, regional and municipal planning policies.
(iii) The purpose of the zone,...
(iv) Orderly planning of the area.
(v) Proximity of the land to any reserved land.
(vi) Effect on the amenity of the neighbourhood.
(vii) Any matter required to be considered in the zone,...
As to guideline (i) of clause 16-2, the only provision of section 60 of the Planning Act which is relevant to the matter before the Court is sub-paragraph 60(1)(b)(i) which reads, so far as relevant:
(1) Before deciding on an application, the responsible authority -
(a) must consider - ...
(b) if the circumstances appear to so require, may consider - (i) any significant social... effects of the use or development for which the application is made; ...
As to guideline (iii) of clause 16-2, the purposes of the Restricted Light Industrial Zone are set out in clause 124 of the planning scheme as follows:
• to provide for the orderly and proper development of a range of manufacturing and associated industrial activities in areas which, because of their nature or sensitive location, require that all development be subject to planning control; and • to ensure that retailing is limited to that which would not be
appropriate in a business zone.
As to paragraph 27(b) of the Appeals Act, the objectives of planning in Victoria appear from section 4 of the Planning Act. They are broad and general, and it was not suggested that any of them has any specific application to this matter.
The other statutory provisions relevant to the matter before the Court are sections 4, 73 and 74 of the Prostitution Control Act 1994 (“the Prostitution Act”) which provide, so far as relevant:
4. The objects of this Act are -
(a)
to seek to protect children from sexual exploitation and coercion;
(b)
to lessen the impact on the community and community amenities of the carrying on of prostitution-related activities;
(c)
to seek to ensure that criminals are not involved in the prostitution industry;
(d)
to seek to ensure that brothels are not located in residential areas or in areas frequented by children;
(e)-(h) [related to the protection of prostitutes and others]
73. Without limiting section 60 of the [Planning Act], before deciding on an application for a permit for a use or development of land for the purposes of the operation of a brothel, the responsible authority must consider -
(a) ...
(b) the effect of the operation of a brothel on children in the neighbourhood; (c) except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and La Trobe Streets, whether the land is within 200 metres of a place of worship, hospital, school, kindergarten, children’s services centre or of any other facility or place regularly frequented by children for recreational or cultural activities and, if so, the effect on the community of a brothel being located within that distance of that facility or place; ...
74(1)
The responsible authority must refuse to grant a permit for a use or development of land for the purposes of the operation of a brothel if -
(c)
except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and La Trobe Streets, the land is within 200 metres of a place of worship, hospital, school, kindergarten, children’s services centre or of any other facility or place regularly frequented by children for recreational or cultural activities; ...
Grounds of Appeal
In Transport Accident Commission v Hoffman [1989] VR 197, Young CJ and McGarvie J concluded that section 52 of the AAT Act grants a right of appeal from any decision of the Tribunal on a question of law which is involved in its decision. Omitting ground (1), which is of a general nature, and grounds (9) and (10) which were abandoned prior to the hearing, the grounds set out in the appellant’s notice of appeal may be summarised as follows:
(2) the Tribunal erred in its construction of section 73(c) and
section 74(1)(c) of the Prostitution Act;(3)
the Tribunal incorrectly applied the provisions of section 73(c) and section 74(1)(c) and the objects of the Prostitution Act to the particular circumstances of the case;
(4)
the Tribunal incorrectly applied the provisions of clause 16 of the planning scheme and section 60 of the Planning Act to the particular circumstances of the case;
(5) in making its determination, the Tribunal took into account
irrelevant considerations, in particular -
(a)
the matters set forth in section 73(c) and section 74(1)(c) of the Prostitution Act;
(b) the proximity of the premises to the Keilor Cemetery; (c)
the ownership by the Cemetery Trust of nearby land upon which it proposed to make future expansion of the cemetery;
(6) the Tribunal erred in placing any or any undue weight on the
matters set out in ground (5) above;(7) the Tribunal erred in failing to take into account sufficiently or
at all -
(a) the primary purpose of the Zone ...; (b) the objects of the Prostitution Act; (c)
the area, physical location of, and access to the premises, in relation to the Keilor Cemetery;
(d)
the report of the Council planning officer, which supported the application for a permit;
(e)
that the use of cemetery is prohibited within the Zone; and
(8)
The Tribunal erred in failing to take into account relevant considerations, namely the matters set out in ground (7) above.
Authorities
In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18, Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Town Planning Appeals Tribunal (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:
...the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
That passage has been frequently relied upon in this Court, as have the authorities to the effect that failure to consider relevant matters can constitute a vitiating error. See the discussion of the matter by Ormiston J (as he then was) in Body Corporate Strata Plan No. 4166 & Ors v Stirling Properties Ltd (No. 2) [1984] VR 903 at 913-4.
In Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Barwick CJ said at 679-680:
Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.
In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said at 67:
...the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.
The Determination of the Tribunal
In its determination, the Tribunal, under the heading “The Legislative Framework”, set out the purposes of the Zone (paragraph 11 above), and referred briefly to the requirements of section 60 of the Planning Act (paragraph 10 above) and clause 16 of the planning scheme (paragraph 9 above) as to matters to which the Tribunal may or must have regard. The Tribunal then set out, at greater length than they appear in paragraph 13 above, the provisions of sections 4, 73 and 74(1) of the Prostitution Act.
Under the heading “Reasons for Determination”, the Tribunal began:
The Tribunal having considered the submissions is of the opinion that the key issue in this appeal is the question of the proximity of the proposed brothel to the Keilor Cemetery. An object of [the Prostitution Act] is “to lessen the impact on the community and community amenities of the carrying on of prostitution related activities”. Section 73(c) and section 74(1)(c) of [the Prostitution Act] set out essentially identical criteria. These subsections do not directly apply in this appeal and the emphasis of these sections is on children related activities. However, the subsections also refer to places such as a place of worship, a hospital, which in the Tribunal’s mind are examples of the community amenities referred to in the objects of [the Prostitution Act]. Cemeteries are also community amenities which can be of a similar character.
The Tribunal considers that because of the framework established by [the Prostitution Act], its objects are of relevant consideration in a planning context and of course the matter[s] set out in Section 73 must be matters considered in relation to applications for brothel permits. The matters provided for in [the Prostitution Act] overlay ordinary planning considerations, therefore, considerations such as those set out in Clause 16 of the Planning Scheme, and section 60 of [the Planning Act] are also relevant. The Tribunal believes that the proposal to establish a brothel in such close proximity to a cemetery such as the Keilor Cemetery raises social issues which should be resolved in deciding whether or not a permit should be granted.
The Tribunal went on to consider the appeal on the evidence before it and in the light of those issues, and found on the evidence that the Keilor Cemetery was a community amenity which should be protected from the proposed brothel.
As to the Restricted Industrial zoning of a portion of the vacant land owned by the Cemetery Trust, the Tribunal relied on its decision in Appeal No. 1995/35966 City of Yarra v A & J Carlos to the effect that a brothel was not itself essentially an industrial use, and therefore it could not be argued that it should be given some form of primacy over the cemetery as being in accordance with the primary purposes of the existing zoning. It found that “the Keilor Cemetery is a public facility of at least regional importance, and therefore the Trustee’s plans for its expansion must be given some weight notwithstanding the zoning of this portion of the land.”
Discussion
I now turn to consider the grounds of appeal in the light of the authorities to which I have referred. As to grounds (2) and (3) set out in paragraph 14 above, Mr Southall, for the appellant, submitted that it was apparent from paragraphs 4(a) and (d), 73(b) and (c) and 74(1)(c) of the Prostitution Act that the clear statutory scheme of that Act was to protect children and young persons. Accordingly, he submitted, the expression “community and community amenities” in paragraph 4(b) of the Prostitution Act should be read and construed as though it read “community and community amenities involving the presence of or use by children” and sub-paragraph 60(1)(b)(i) of the Planning Act should be read with the addition at the end thereof of the words “on places frequented by children and children related activities”. He submitted that by not reading those provisions accordingly, the Tribunal had erred in its construction of them and the result was that it had incorrectly applied them. In particular, he submitted that a cemetery was not a “community amenity involving the presence of or use by children”, and accordingly, the Tribunal should not have taken into account issues relating to the proximity of the cemetery to the subject land.
I do not accept those submissions. The objects in section 4 of the Prostitution Act are carefully drafted and separated. While object (a) refers only to children, and object (d) includes reference to children, that does not justify limiting the operation of object (b). Nor does it justify restricting the operation of sub-paragraph 60(1)(b)(i) of the Planning Act to permitting consideration only of the social effects on children of the proposed development, and not of other social effects. Sections 73 and 74 of the Prostitution Act include a number of matters not related to the issue which was before the Tribunal, or to children, which matters must also be taken into account in considering an application for a permit for a brothel. It should be noted that section 73(c) requires consideration of “the effect on the community”, not “the effect on children” of a brothel being located within 200 metres of one of the places or facilities referred to. Neither of these provisions is appropriate for the application of the ejusdem generis rule.
As to ground (4), Mr Southall submitted that the Tribunal was in error in not particularising section 60 of the Planning Act and clause 16 of the planning scheme. It would be difficult to condemn the decision of a tribunal or of a court on the ground that that body did not set out the terms of every statutory or subordinate provision to which it referred. It cannot be inferred, as Mr Southall suggested, that by not specifying or identifying the relevant part of either of those provisions, that the Tribunal placed little weight on them in arriving at its decision. It is apparent, in any case, that, as directed by guideline (i) of clause 16-2 of the planning scheme, the Tribunal acted in accordance with the permission given by sub-paragraph 60(1)(b)(i) of the Planning Act to consider what it perceived to be significant social effects of the proposed use of the subject land.
As to grounds (5) and (6), the Tribunal correctly stated that section 73(c) and section 74(1)(c) of the Prostitution Act did not directly apply to the appeal, given that the subject land is not within 200 metres of any place of the kind specified in those provisions. However, it appears to have considered those provisions as relevant in the ascertainment of the objects of the Prostitution Act, and, as required by section 35 of the Interpretation of Legislation Act 1984 (“the Interpretation Act”), it adopted a construction which would promote one of the objects of the Prostitution Act, namely that set out in paragraph 4(b): “To lessen the impact on the community and community amenities of the carrying on of prostitution-related activities.”. It was on that basis that the Tribunal found the Keilor Cemetery to be “a community amenity which must be protected from the proposed brothel” and found the proposed expansion of the cemetery to be also relevant.
It will be apparent from the foregoing that I do not consider any of:
(a) the matters set forth in section 73(c) and section 74(1)(c) of the Prostitution Act;
(b) the proximity of the subject land to the Keilor Cemetery; or
(c) the ownership by the Cemetery Trust of nearby land upon which it proposes to make future expansion of the cemetery;
to be irrelevant to the question before the Tribunal. Nor do I consider that it can be
said that the Tribunal erred in giving them any or undue weight.In view of the conclusions which I have reached as to grounds (5) and (6), it is not necessary for me to consider the submission of Mr Dreyfus, for the Council, that those grounds, as put by the appellant, are inconsistent with the manner in which the appellant’s case was conducted before the Tribunal.
As to grounds (7) and (8), I am satisfied that the Tribunal, in its careful reasons, took sufficiently into account all of the matters therein set out. As to items (a) and (e), see paragraph 21 above, and as to item (b) see paragraph 19 above. Items (c) and (d) are sufficiently referred to in the Tribunal’s determination.
For the reasons given, I find that, considering the grounds of appeal in the light of the passages cited in paragraphs 16 and 17 above from Kentucky Fried Chicken and Michaelis Bayley, there is no vitiating error of law in the determination of the Tribunal. The question then arises as to the orders to be made as a result of that finding. Counsel expressed some concern as to whether the Court has power to make any orders.
This appeal was, as I have said, brought under section 52 of the AAT Act. Sub- section 52(5) reads:
(5)
The Supreme Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision including, without limiting by implication the generality of the foregoing -
(a)
an order affirming, varying or setting aside the decision of the Tribunal; and
(b)
an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Supreme Court.
The hearing of the appeal was completed on 30 June 1998. By section 310 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (“the Amendments Act”) the AAT Act and the Appeals Act were repealed with effect from 1 July 1998. The provisions of Part 11 of the Amendments Act have the effect that the right of an applicant for a permit to appeal to the Tribunal against a decision of a responsible authority refusing to grant a permit, which was conferred by section 77 of the Planning Act, is now replaced by a right to apply for a review of that decision to the Victorian Civil and Administrative Tribunal (“VCAT”) established under the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) which came into operation on 1 July 1998. Section 148 of the VCAT Act provides for an appeal, with leave, from VCAT to this Court.
Section 14(2) of the Interpretation Act provides, so far as relevant:
(2) Where an Act... -
(a) is repealed... the repeal,... shall not, unless the contrary intention expressly
appears -...
(e)
affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act...; or
(g)
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability... as is mentioned in paragraph... (e)... -
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced,... as if that Act... had not been repealed...
I am satisfied that, by virtue of that provision, the Court, as constituted for the hearing of this appeal, retains for the determination of the appeal, the powers conferred on it by sub-section 52(5) of the AAT Act. Accordingly, the decision of the Tribunal will be affirmed.
Counsel may wish to make submissions as to costs.
0
1
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