Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366

Planning and Environment Act 1987; s 6(3)

Chasers Cabaret Pty Ltd v City of Prahran (unreported, number 1991/003810 and others, 27 March 1991)

City of Springvale v Heda Nominees (1982) 1 PABR 287

Coulton v Halcombe [1986] HCA 33; (1986) 162 CLR 1

La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201

Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

S v Crimes Compensation Tribunal [1998] 1 VR 83

Shire of Perth v O'Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529

Smith v Ferguson [1967] VicRp 93; [1967] VR 757

Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29

2. This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") against three orders made by the Victorian Civil and Administrative Tribunal ("the Tribunal"), constituted by a Senior Member and a Member, on 6 April 2000 in its Planning List. Leave to appeal was granted by this Court on 26 May 2000. There was no appearance for the second to eighth respondents, and Mr Gobbo, for the appellant, informed the Court that he was instructed that they had indicated that they would abide the order of the Court save as to any claim for costs which might be made against them.

5. There were three applications before the Tribunal.

Application Number 1998/080973 was an application by the first respondent ("the Council") under section 114 of the Planning and Environment Act 1987 ("the Act") for an enforcement order prohibiting the use of land occupied by the appellant at 632 Glenhuntly Road, Caulfield South ("the premises"), for the purpose of tabletop dancing, lap dancing or other sexually explicit entertainment.

Application Number 1999/007903 was an application by the Council under section 87 of the Act for an order amending permits GE 8222 and CAUL 3335 by inserting into the permits a condition that "No entertainment in the nature of tabletop dancing, striptease, podium dancing, lap dancing or any other form of sexually explicit entertainment may be provided on the premises".

Application Number 1999/058348 was an application by the appellant under section 77 of the Act for review of a decision of the Council to refuse to grant a permit to use the premises for the purpose of a "bar and entertainment facility, including but not limited to, tabletop dancing and lap dancing".

11. The orders of the Tribunal, against which this appeal is brought, were:

Within one month from the date of this order, the occupier

must cease using the land, or permitting the land to be used, for the purpose of table-top dancing, lap dancing or other sexually explicit entertainment, the use of the land for that purpose being one that contravenes the Glen Eira Planning Scheme since the land is in a Business 1 zone where use of the land for that purpose is prohibited unless authorized by a permit.

As to the application for amendment of the permits:

As to the application for review of the decision to refuse a permit:

22. The grounds of appeal set out in the Notice of Appeal, save for grounds 2 and 3 which were expressly abandoned, are as follows:

1. The Tribunal erred in law in asking itself the wrong question as to the Appellant's entitlement to use the land under Permit No. CAUL 3335.

4. The Tribunal erred in law in applying the wrong test or tests as to the basis of the Appellant's right to use the subject premises.

5. The Tribunal erred in law in finding that operating lawfully as a cabaret under liquor licensing law (and practice) was not sufficient to establish a lawful use in planning terms.

6. The Tribunal erred in law in its interpretation of Permit No. CAUL 3335.

7. The Tribunal erred in law in its interpretation of the rights afforded to the Appellant by Permit No. CAUL 3335.

8. The Tribunal erred in law in regarding the provision of food as relevant/determinative when Permit No. CAUL 3335 contained no conditions in that regard.

9. The Tribunal erred in law in its interpretation of what a permit for a "cabaret" allowed.

10. The Tribunal erred in law in its interpretation of what a cabaret licence under the Liquor Control Act 1968 allowed or required;

11. The Tribunal erred in law in taking into account irrelevant considerations, namely:

s the fact that promotional material was not specifically expressed in terms of the cabaret permission but was directed to sexually explicit entertainment;

s the relationship between payment and state of dress;

s the submission of the Responsible Authority that the failure to supply refreshments prevent[ed] the Appellant establishing lawful existing use rights;

s the fact that the emphasis of the operation was "heavily sexual";

s the fact that individuals were able to avail themselves of more explicit entertainment in a separate area.

12. The Tribunal erred in law in its identification of the above factors as determinative of the question of what constitutes a cabaret.

13. The Tribunal erred in law in failing to take into account a fundamental consideration, namely that the use of the subject premises is conducted pursuant to the equivalent under the present liquor licensing legislation of a cabaret licence, namely an "on premises live entertainment" liquor licence.

14. The Tribunal erred in law in failing to take into account a fundamental consideration, namely that the nature of activities contemplated and allowed under a cabaret licence, and its present equivalent an "on-premises live entertainment" licence has changed significantly over time so that it allowed sexually explicit adult entertainment prior to the relevant date.

15. The Tribunal erred in law in failing to follow, or alternatively, treat as highly persuasive, the decision of Judge Fagan, Ms Love and Mr Kinder in Chasers Cabaret Pty Ltd v City of Prahran (1992/045843 - unreported).

16. The Tribunal erred in law in relying upon aspects of the decision in Fox Face Pty Ltd v Melbourne City Council (1997) 20 AATR 257 when the Tribunal in that case specifically refrained from deciding whether or not a cabaret permit allows sexually explicit entertainment.

47. The premises were occupied as a restaurant for many years. On 27 August 1984 a planning permit numbered CAUL 3335 was issued to the then occupiers for the use of the premises for the purpose of a cabaret. This was apparently done to enable the restaurant to obtain a cabaret licence under the Liquor Control Act 1968, which would allow extended trading until 3 a.m. Planning permit number GE 8222 was issued on 5 July 1996 for the use of the premises as a bar, but it appears that this permit was not acted upon, and it was not relied on by the appellant. In about July 1998 the appellant commenced trading at the premises as what the Tribunal found to be a sexually explicit entertainment venue, under the name of Kittens Bar.

50. The Council, as responsible authority under the Glen Eira Planning Scheme, then applied to the Tribunal for the enforcement order, and by way of alternative, for the amendments to the permits, as described in paragraph 2 above. The appellant then applied to the Council, as responsible authority, for a permit to use the premises for a "bar and entertainment facility, including but not limited to, tabletop dancing and lap dancing" and that application was refused on 12 July 1999. The appellant applied to the Tribunal for review of the decision to refuse the permit, and all three applications were heard together.

53. On 5 August 1999 ("the approval date") a planning scheme, ("the new planning scheme") prepared in accordance with the Victoria Planning Provisions approved by the Minister pursuant to section 4A of the Act, came into operation in the City of Glen Eira. The decision of the Tribunal was made on the basis of that planning scheme, constituting as it did the relevant law as it stood at the date of the making of the decision, in accordance with Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

57. The argument before this Court chiefly related to the application for an enforcement order. The essential submission of the appellant is that immediately before the approval date it was lawfully using the premises as a sexually explicit adult entertainment venue by virtue of permit number CAUL 3335, granted under a planning scheme previously in operation, and accordingly that use was protected as an existing use by section 6(3) of the Act and clause 63 of the new planning scheme. As Mr Gobbo pointed out, a permit would always, since the beginning of planning controls in Victoria, have been needed for the activity in question.

60. 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.

67. Clause 63 of the new planning scheme relevantly provides:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

s The use was lawfully carried out immediately before the approval date.

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.

63.05 Sections 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:

s 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.

s 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.

s 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.

The premises are situated in a Business 1 Zone under the new planning scheme, and in that zone the use in question, by virtue of being a "use not in section 1 or 3", is a use in section 2; that is, a use for which a permit is required. It should be noted, however, that "sexually explicit entertainment venue" is nowhere defined in the new planning scheme.

82. 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.

86. The Tribunal accepted that the evidence established that the entertainment provided on the premises included:

podium dancing by women in various stages of dress/undress as well as private or personal dancing, the latter being conducted on a one-on-one basis with a customer in the private room to the rear of the main customer area;

and that it had the following distinctive characteristics:

the premises were promoted as an adult venue providing continuous table-top and lap dancing;

the only form of entertainment provided in the premises was table-top and lap dancing which was provided whenever the premises were open to the public;

whilst the proprietor of the premises sold liquor and provided bar and security staff, the dancers were self-employed, paid a fee to management to perform at the premises and were remunerated by direct payment from the customers;

the state of dress of the dancers on the podium was dependent upon the direct payment to the dancer by patrons;

the primary focus of the entertainment was on private dances involving one-on-one performances arranged by direct negotiation between the dancer and the patron;

the main focus of these premises is on sexually explicit entertainment. That is how it is marketed, although it may well be used for a casual drink or coffee. It only opens at 7 pm. There is certainly no evidence of meals.

99. On the basis of that evidence, the Tribunal characterised the use of the premises, pursuant to clause 62.02 of the new planning scheme, as a sexually explicit entertainment venue.

102. Permit number CAUL 3335, as has been said, was issued on 27 August 1984 and permitted the use of the premises "for the purpose of a cabaret". At that date, the relevant planning control was the Melbourne Metropolitan Planning Scheme Ordinance ("the Ordinance"), which defined "cabaret" as follows:

In this Ordinance unless inconsistent with the context or subject-matter -

"Cabaret" means a building or part of a building for or in respect of which a licensee holds a cabaret licence under the Liquor Control Act 1968.

That definition, with the expressions "or part of a building" and "or in respect of" omitted, appears in the Glen Eira Planning Scheme as in force immediately before the approval date.

108. There were a number of other definitions in the Ordinance which incorporated definitions from, or otherwise depended on, particular Acts of Parliament. The definition of "hotel" was identical with that of "cabaret", save for the substitution of the expression "an hotel keeper's licence or a residential licence" for the expression "a cabaret licence".

111. The Tribunal summarised the subsequent history of the legislation and permits thereunder in the following terms:

Until the commencement of [the new planning scheme], successive planning schemes defined "Cabaret" in the same way, save for the fact that the reference to a part of a building was omitted in later schemes, presumably because [the Act] defined "Building" in such a way as to take in a part of a building. The Liquor Control Act 1968 continued to be referred to despite the fact that it had been repealed by the Liquor Control Act 1987 and the 1987 Act had in turn been repealed by the Liquor Control Reform Act 1998.

In Richmond Henty Hotel Pty Ltd v City of Portland (1989) 2 AATR 15, the Administrative Appeals Tribunal considered a definition of "Hotel" in the same form. The Tribunal held that the Liquor Control Act 1968 had not been "re-made or re-enacted (with or without modification)", within the meaning of section 31 of the Interpretation of Legislation Act 1984, by the Liquor Control Act 1987. The Tribunal held that the reference to the 1968 Act had consequently to be understood as a reference to the Act as in force immediately before its repeal.

The evidence in the present proceedings indicates, however, that a cabaret liquor licence (No 32206830) was issued under the 1968 Act (apparently in 1985), and subsequently renewed regularly, with the result that it became an on-premises entertainment licence and extended hours permit by virtue of the transitional provisions of the 1987 Act, and an on-premises licence with extended hours by virtue of the transitional provisions of the 1998 Act.

No issue was taken by either party at the hearing as to the correctness of those findings. I note that Richmond Henty Hotel was followed by the Administrative Appeals Tribunal ("the AAT"), differently constituted, in Cherry Lakes Pty Ltd v City of Melbourne (1992) 9 AATR 171.

118. The Tribunal tacitly accepted the evidence of an expert witness on liquor licensing practice which was to the effect that there had been an evolutionary development of cabaret licensed premises. In early cabaret licences the Liquor Control Commission had been concerned to limit the sexual element in entertainment, but this had changed in line with government policy to a position where the Commission regarded sexually explicit entertainment as lawful, subject to certain standard conditions included in relevant licences which related to such matters as promotion, security and the responsible serving of alcohol.

122. The principal submission of Mr Gobbo, for the appellant, was that in determining the nature of the use which was lawfully carried on immediately before the approval date and which was thus protected as an existing use by section 6(3) of the Act and clause 63 of the new planning scheme, a decision-maker could not look beyond the definition of the use in the Ordinance, being the planning control pursuant to which the use was originally made lawful, and which had not changed. Where a term was defined by reference to an Act or subordinate legislation, he submitted, it was not possible to go beyond that definition. "Cabaret" was defined by the Ordinance by reference to a building in respect of which a licensee held a cabaret licence under the relevant liquor legislation. The ordinary meaning of "cabaret", whatever it might be, was not relevant to the issue.

125. Accordingly, Mr Gobbo submitted, if activity pursuant to the liquor licence, which did not contravene the terms of that licence, or any other requirement of liquor law, or the terms of permit CAUL 3335, was being carried on on the premises at the relevant date, that was sufficient to establish the existing use rights for which the appellant contended. The relevant planning law, by virtue of the definition in the Ordinance, was circumscribed in terms of a liquor licence. He submitted that it was not suggested that immediately before the relevant date the building was not "lawfully being used" for the purpose of a cabaret, in those terms, in accordance with section 6(3)(a); or that the use as a cabaret was not being "lawfully carried out" in accordance with clause 63.01. Thus that use, he submitted, was protected by those provisions.

128. As JD Phillips JA said in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 88, "what is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant's success or failure is a question of law."

131. The Tribunal conceded, with some caution, that the entertainment being provided at Kittens Bar immediately before the approval date was, as a result of the changes in the liquor legislation and the successive permits issued to the proprietors of the premises, authorised for the purposes of liquor law by the original cabaret licence. Its view was, however, that in deciding whether this gave rise to existing use rights, it should consider the ordinary meaning of "cabaret" rather than the meaning derived from the Ordinance. However, the only reason which it gave for this view was that to consider the meaning derived from the Ordinance "would clearly offend against common sense", because, for example, the holder of the licence might not have been using the premises at all, or might have been using them for a prohibited purpose such as a brothel, or might have held two or more planning permits or liquor licences. Those possibilities seem to me to be inherent in the form of the definition of "cabaret" (and of other uses, see paragraph 15 above) in the Ordinance and the new planning scheme, which could, I appreciate, give rise to those and other difficulties of application throughout the system. However, given the presence of a definition in that form, those difficulties do not affect the question of whether that definition is applicable to the consideration of the existence or otherwise of an existing use right. In that context the word "lawfully", appearing in both section 6(3) and clause 63.01 has some relevance.

134. The question was considered by the AAT, constituted by His Honour Judge Fagan (President), Ms Love and Mr Kinder (Members) in Chasers Cabaret Pty Ltd v City of Prahran (unreported, number 1991/003810 and others), decided on 27 March 1991. The appellant had held, in respect of certain premises in Prahran, a cabaret permit issued under a planning scheme which included the same definition as that in issue here. That planning scheme had been replaced. The Council had submitted that the use of the premises had changed so much that it could be said that it was being used for a discotheque or a nightclub, which was unlawful without a permit, rather than a cabaret, and any entitlement of the appellant by way of a non-conforming use (now "existing use") had been lost.

We are of the view that the operation of the premises in recent years is properly characterised as a cabaret for planning purposes because we think that the operation of the relevant provisions of the two Liquor Control Acts in conjunction with the Planning Schemes have that effect. We think that the extent to which the nature of the operation has changed over the years has been significant. The activities provided there have altered in response to changing tastes in entertainment so far as style of music, service of food and drink and the type of live entertainment are concerned but in light of our view as to the operation of the legislation, we do not find it necessary to determine whether or not the changes have proceeded so far as to constitute the premises a discotheque or nightclub as distinct from a cabaret in ordinary parlance.

In our view the premises have been used lawfully and continuously as a cabaret (under the meaning of the definition of that use in the Planning Scheme) since immediately before the coming into operation of the Planning Scheme.

In our view, for either reason, lawful non-conforming continuing use or the operation of the permits, the recent use of the premises has been a permitted use for the purpose of cabaret.

144. The Tribunal cited these passages, but commented that the AAT "may have taken a different view of the link between a planning scheme and the Liquor Control legislation. To the extent that we depart from their view, we do so respectfully". However, it gave no reason for departing from that view, and it must be assumed that it was relying on the matters discussed in paragraph 21 above.

147. The Tribunal was, of course, not bound to follow the decision of the AAT, any more than a judge is bound to follow a decision of a single judge of the same court. The approach conventionally adopted by single judges, however, as a matter of judicial comity, is encapsulated in the following passage from the judgment of Blackburn CJ of the Supreme Court of the Australian Capital Territory in Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32:

As a judge of this court I should follow a decision of another judge of the court unless there is a clear reason for not following it. In this case I find no such clear reason. It is not part of a judge's function to give effect to his sympathy with the plaintiff by altering the law on the ground that decisions more favourable to plaintiffs have been given elsewhere in Australia, under corresponding but not identical legislation.

Similarly, Burchett J of the Federal Court said in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204:

The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. . .. But the practice in England, and I think also in Australia, is that "a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance . . . unless he is convinced that the judgment was wrong": Halsbury, 4th ed, Vol 26, para 580. The word "usually" indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.

(As to appeal courts, see the interesting discussion in chapter 8 of MacAdam & Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths 1998.)

154. The AAT was the predecessor of the Tribunal, with a similar jurisdiction under the Act, and for this purpose can be regarded as the same tribunal. Given the wide jurisdiction of the Tribunal in planning matters, there would be many cases where the circumstances were such as to give room for a divergence of views between differently constituted tribunals. However, the issue in question is undubitably a matter of law (see paragraph 19 above), as to which different considerations apply from those in planning matters. Further, the AAT in Chasers Cabaret was presided over by His Honour Judge Fagan, giving greater weight to the decision on that question of law, and I note that on the hearing of the matter each party was represented by senior and junior counsel. The comment of the Tribunal, cited in paragraph 24 above, courteously expressed though it is, is not in my view sufficient explanation of the failure of the Tribunal to follow that decision, given the obvious desirability of consistency in Tribunal decisions in matters such as that in issue here. However, I am not to be taken as finding that the absence of express justification for that failure to follow the decision of the AAT necessarily constitutes an error of law on the part of the Tribunal. Section 98(1)(b) of the VACT Act provides that the Tribunal "is not bound by . . . any practices or procedures applicable to courts of record, except to the extent that it adopts those . . practices or procedures." Nevertheless, the Tribunal should always be conscious of the importance of consistency in decisions on questions of law, which is fundamental to any system aimed at the attainment of justice.

158. Mr Peake, for the Council, submitted that the definition of "cabaret" in the Ordinance operated only so as to define a term to be found in the table of uses for the purpose of determining whether or not a permit can be granted under the planning scheme, as a preliminary to determining whether or not it is appropriate, on the merits, to grant such a permit. But that approach, he submitted, was not appropriate for the purpose of interpreting the extent of a planning permission_._

161. He referred in support of that submission to the decision of the High Court in Shire of Perth v O'Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529. In that case the High Court was concerned with an existing use pursuant to a permit which authorised pottery making, which fell within the description "light industry". The court found that the existing use authorised the continuing use of the premises for pottery making, but that it did not follow that, as Menzies J said at 536, "use for one purpose which falls into the category of light industry is to be regarded as use for any purpose which falls into that category".

164. However, that case does not appear to me to support the submission for which it is relied upon. It says, in effect, that "pottery making" means "pottery making" and not "light industry". It cannot be read as authority for the proposition that a definition in a planning scheme or similar control is not to be applied across the whole of the scheme, in relation to existing uses as well as to proposed uses. The definition provision of the Ordinance expressly intends the definition of "cabaret" to apply throughout the Ordinance unless inconsistent with the context or subject-matter, and no question of inconsistency arises here.

167. In that context Mr Gobbo cited a passage from the judgment of the Full Court (Barry, Pape and Adam JJ) in Smith v Ferguson [1967] VicRp 93; [1967] VR 757 at 759. After referring to the usual meaning of the word "percentage" the Court said:

But to concede that this is its usual meaning does not necessarily determine its meaning in s. 81A of the Motor Car Act 1958 or in s. 408 or s. 408A of the Crimes Act 1958. It is, of course, the golden rule of construction of statutes that words are to be given their ordinary and natural meaning unless sufficient reason appears for ascribing to them some secondary or artificial meaning, but this rule of common sense must yield to the paramount rule of construction, that effect must be given to the intention of the legislature manifested in the language used and the context in which it is found. "When I use a word", Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."[Lewis Carroll, Through the Looking Glass, ch. 6.] Similarly, Parliament is its own master of linguistic presentation, and so long as its meaning is unmistakably plain, it can disregard the accepted meaning of a word and assign to it such meaning as it thinks proper.

A body entrusted with the power of enacting planning controls is, in this context, in the same position as Parliament.

172. Mr Peake cited City of Springvale v Heda Nominees (1982) 1 PABR 287 in which Southwell J found that when a permit was sought for a purpose, the meaning of which was not apparent from the description of the proposed use in the application for a permit, the responsible authority was entitled to have regard to the plans accompanying the application. Accordingly, Mr Peake submitted that in determining the precise purpose for which a permit had been granted, it was proper to consider any documents accompanying the application. However, to apply that concept to the instant case does not assist in the determination of the question of whether the nature of the existing use is to be determined according to the definition in the Ordinance, or according to the ordinary meaning of the word "cabaret".

175. Mr Peake submitted finally that there was evidence before the Tribunal that, immediately before the approval date, the appellant was, in conducting its operations on the premises, not complying with either the requirements of the Liquor Control Act 1968 as in force immediately before its repeal, or the conditions of the liquor licence with regard to the serving of food. That being so, the second dot point in clause 63.05 was not being complied with, and accordingly, the use was not protected by clause 63. No doubt, comprised in that submission, there was a submission that the building was not "lawfully being used" as a cabaret and thus was not protected by section 6(3).

178. However, as Mr Gobbo pointed out, the affidavit material on which this appeal was brought makes no reference to that submission having been raised before the Tribunal. No answering affidavit was filed for the respondent. Mr Peake's written submissions to the Tribunal, where he appeared for the respondent, are exhibited to the affidavit. There is material in those submissions and elsewhere, which could form the basis of the submission sought to be made before the Court, but I cannot, on the evidence before me, form the view that that material was in fact used before the Tribunal in the manner in which it was sought to use it here.

181. As a matter which was not raised before the Tribunal, and which, had it been raised, could have been the subject of further evidence there, that submission is not available to be raised in this Court. The justification for that principle, set out in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan, and Dawson JJ, is as relevant to an appeal from the Tribunal to this Court as it is in the context where it there arose. Their Honours said at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

At 8 they cited with approval the summary of the relevant principles stated by the Court of Appeal of New South Wales in the matter before them:

[T]he finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance, keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court.

187. Having considered the matter, I would, with respect, adopt the finding of the AAT in Chasers Cabaret, set out in paragraph 23 above. I find no reason not to accept the submission of Mr Gobbo that the nature of the existing use which is sought to be protected under section 6(3) and clause 63 is to be determined according to the definition of "cabaret" in the Ordinance, being the planning control under which the permit was granted, and the terms of which had not changed immediately before the approval date. The validity and effect of that definition are preserved by the transitional provisions of the Liquor Control Act 1987 and the Liquor Control Reform Act 1998, as set out in the extract from the decision of the Tribunal which is cited in paragraph 16 above. The appellant was thus, immediately before the approval date, using the premises by virtue of permit number CAUL 3335. I am not in a position to find that that use was not otherwise lawful. Accordingly, that use is protected by section 6(3) of the Act and clause 63 of the new planning scheme.

190. I find grounds of appeal numbers 1 and 4 to be made out in respect of the application for an enforcement order, number 1998/080973. I invite submissions as to the orders to be made consequent upon that finding and as to costs.