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[2021] VSC 26
General information, not legal advice.
Supreme Court of Victoria
2021-02-02
Kennedy, JA
Original judgment source is linked above.
ADMINISTRATIVE LAW - Appeal on question of law - Application to challenge decision of VCAT granting planning permit for use of land as life saving club, function room, and café - Whether VCAT obliged to take into account provisions in An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877 (Vic) ('Vesting Act') - Whether obligation arises by reason of s 61(4) Planning and Environment Act 1987 (Vic) - Whether Vesting Act was otherwise a mandatory consideration - Whether VCAT correctly applied Vesting Act in any event - Whether open to find land is used for 'public resort or recreation' - Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54, applied - Whether open to find restricted use is ancillary or incidental to public use of land - (Vic) , (1) (definition of 'registered restrictive covenant'), 60(1)(f), 60(1A)(j), 61(4), 84B(1), 84B(2)(k) (Vic) (Vic) (definition of 'restriction') (Vic) s 483 - (Vic)
1 The applicant seeks leave to appeal on a question of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) against a decision made by the Victorian Civil and Administrative Tribunal ('the Tribunal') on 19 November 2019.
2 There were a number of grounds which were raised in a large variety of ways. However, the crucial question which arose was whether the Tribunal was obliged to, but did not, comply with alleged limitations on its powers under the Brighton Land Vesting Act 1877 (Vic) ('the Vesting Act').[1]
3 In terms of whether the Tribunal was obliged to take the Vesting Act into account, this arose in two ways:
(a) whether the Tribunal erred in respect of its finding that the Vesting Act and a Registrar's caveat were each not a 'registered restrictive covenant' such that the Tribunal failed to comply with s 61(4) of the Planning and Environment Act 1987 (Vic) ('the P&E Act') (question of law 1); and
(b) whether the Tribunal failed to have regard to the matters required by ss 84B(1)(a), 84B(1)(b), and 84B(2)(k) of the _P&E Act (_question of law 7).
4 The second issue was then, if the Tribunal was obliged to take the Vesting Act into account, whether there had been some error of law made (questions of law 2-6).
5 This proceeding concerns a proposed development on certain land along the foreshore at 131-133 Esplanade, Brighton, which land had been vested in the Bayside City Council ('the Council') by reason of the Vesting Act. This proposal includes the construction of a new club house for the Brighton Life Saving Club ('the BLSC').
6 The total of the land vested in the Council comprises 149,661 square metres i.e. nearly 15 hectares. The ground floor footprint of the proposed building is 632 square metres.
7 The architectural plans dated 14 August 2019 effectively show that the development is one storey on the landward side and two storey on the seaward side. It includes a central outdoor plaza located between two buildings. This plaza includes steps/terraces providing access from the car park to the beach. Looking from the seaward side there is a café in the building on the right, while the building on the left has two levels and includes the BLSC and a 'multi-purpose/training room.' The left building also contains public toilets on the ground floor which open out directly to the lower forecourt.
8 The matter came to the Tribunal by reason that a number of applications were brought to seek a review of a decision of the Council to issue a planning permit in respect of the proposal.
9 On 6 April 2017 a preliminary hearing took place before a differently constituted Tribunal who decided, on 19 May 2017, that although the proposed development of the land would not require planning permission, the proposed use would require permission given the use would not be by the Council as a 'public land manager.'[2]
10 At the preliminary hearing, senior counsel for the Brighton Foreshore Association ('the BFA') submitted that a declaration should be made that the proposed use would breach the Vesting Act. However, the Tribunal declined to make that declaration. It considered that the Vesting Act did not act as a statutory bar to the grant of a permit, because the planning scheme operated independently of the Vesting Act. Thus, there was no requirement in the P&E Act to demonstrate an entitlement to use or develop land in the manner sought by a permit application. It remained open to refuse a permit if the Tribunal found that the grant of permission would be futile in the exercise of its discretion. However, this was a very high bar which the Tribunal doubted would even be approached in this case. In any event, the Tribunal suggested that there was no obvious inconsistency with the Vesting Act.[3]
11 The Tribunal thereafter amended the permit application to include approval for certain demolition and removal of native vegetation, as well as for the following uses:
(a) the use of the land as a minor sport and recreation facility (life saving club);
(b) the use of the land as a place of assembly (multi-purpose function space);
(c) the use of the land as a food and drink premises (café).
12 As recorded in the decision the subject of the current proceeding, the proposal contains the following elements:[4]
(a) the construction of a new building comprising a clubhouse for the BLSC over two levels with a total floor area of approximately 1,100 square metres, inclusive of a multifunction space of 130 square metres on the top level;
(b) a café seating 60 patrons with a combined internal and external floor area of approximately 130 square metres;
(c) the construction of a new car park with a different layout and modified access to the Esplanade;
(d) the construction of new pedestrian and vehicle access ways to the beach;
(e) upper and lower forecourt terraces;
(f) removal of native vegetation and the planting of new trees, shrubs and groundcovers, including construction of a rain garden to treat stormwater from the wider urban catchment currently flowing directly to the beach.
13 In the result, the Tribunal confined the issues it needed to consider. It relevantly described the first issue as: 'What is the relevance of the Vesting Act?'[5]
14 In respect of this issue it, first, proceeded to consider whether the grant of the permit would result in a breach of a registered restrictive covenant as would be prevented by s 61(4) of the P&E Act. Thus, the BFA had alleged that the Vesting Act and/or a caveat (which purported to prohibit dealings contrary to the Vesting Act) was a 'registered restrictive covenant' for the purposes of s 61(4). The Tribunal rejected this submission.[6]
15 Although apparently unnecessary, the Tribunal nevertheless then effectively proceeded to consider whether, 'even if' s 61(4) operated to make the Vesting Act a necessary consideration, the proposed uses were incidental to, and consistent with, the Vesting Act, and found that they were.[7]
16 The Tribunal ultimately concluded that the proposal was an acceptable planning outcome and, on 19 November 2019, made an order (order 4) that a permit was granted and directed to be issued in accordance with the endorsed plans and certain conditions set out in Appendix A (which, inter alia, restricted hours of operation). The permit allowed:
Use of the land as a minor sport and recreation facility (life saving club), place of assembly (multi-purpose function space) and food and drink premises (café), the removal of native vegetation, partial demolition of non-heritage assets and new works within HO491 associated with the construction of the new forecourt, timber decking and rain garden, and alterations to access to a Road Zone, Category 1 in accordance with the endorsed plans.
17 The Council has indicated before this Court that, at this stage, it intends to lease the life saving club and multi-purpose function space to the BLSC (on terms to be negotiated), and also to lease the café to a commercial operator (on commercial terms to be negotiated). However, the relevant order of the Tribunal does not purport to authorise entry into any such lease; it merely authorises use of the land in the specified ways.
18 Following the filing of the notice of appeal, the matter was listed for a remote hearing in this Court by way of 'Zoom'. Although a large number of persons observed the hearing by livestream,[8] only the BFA chose to appear and challenge the Tribunal's decision.
Issue 1: whether the Tribunal was obliged to comply with alleged limitations on its powers which arose under the Vesting Act?
19 Prior to 1877, a large part of a landholding in Brighton situated close to the foreshore had fallen into private hands. Consequent on a proposed sale of this land, the Brighton Borough Council ('the BBC') (of which, the Council is the successor in law) objected and litigation ensued.[9] The BBC thereafter purchased the legal estate with its own funds together with funds from government and local residents, and Parliament was then asked to pass a bill vesting the land in the BBC.[10]
An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation.
WHEREAS the lands described in the schedule hereto have been for many years past unoccupied (and unimproved) and have been used as a place of public resort: And whereas the Municipal Corporation called the Mayor Councillors and Burgesses of the Borough of Brighton has from time to time expended money from its corporate funds upon the said lands in fencing and preserving trees thereon and has recently purchased the estate and interest of the owner of the legal estate in the said lands: And whereas it will be for the public advantage to vest the said lands absolutely in the said corporation and to enable the council thereof to improve the said lands and maintain order therein: Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): -
21 Section 483 of the Local Government Act 1874 (Vic) ('the LGA') then reads:[11]
PART XXIV - PLACES OF RECREATION ETC.
483. The council may from time to time, by special order, purchase rent or otherwise provide lands grounds buildings or other places, either within the municipal district or at a reasonable distance therefrom not exceeding ten miles from the chief post-office, to be used as pleasure grounds public schools libraries museums gymnasiums gardens or places of public resort or recreation; and the council may from time to time level drain plant and otherwise lay out and may repair and improve any such public lands grounds or buildings, for the more convenient use and enjoyment thereof, and may afford the use and enjoyment thereof to the inhabitants, subject to such bye-laws as the council may make in that behalf.
22 On the first day of the hearing, the Council submitted that this appeal could only succeed if the BFA demonstrated, not just that there was a failure to properly apply the Vesting Act, but that there was additionally some obligation on the Tribunal to do so. Thus it was submitted that if question of law 1 did not succeed, then the appeal would fail since it was the only 'hook' which could make the Vesting Act relevant.
23 Essentially the Council took the same approach as the Tribunal did in its preliminary decision of 19 May 2017. The Council emphasized that there was no requirement in planning law to demonstrate a proprietary entitlement to use the land. Thus a person can apply for a permit even if that person is not the owner of the land, provided the owner is notified,[12] and it does not matter whether that person is in a position to act on the permit, save insofar as it might be relevant to discretion. Further, it submitted that the permit granted was a permit for use only, without saying anything about an entitlement to lease or otherwise develop the land.
24 The Council also suggested that the preferable way to test the Vesting Act was through an application for a declaration and/or injunction where all appropriate defendants would be present. It also suggested that the matter should not be considered in this forum given a court should not render advisory opinions.
25 In response to this stance, the BFA suggested that it was inappropriate to await the commencement of building and the signing of leases. Further, that the Council had earlier accepted that the Vesting Act was a relevant matter.[13] However, it did not otherwise reject the suggestion that it would be necessary to identify some 'hook' which made the Vesting Act relevant on the application before the Tribunal.[14]
26 On day two of the hearing, the BFA sought to, and did, add question of law 7. This directly raised whether the Tribunal was 'required' to take the Vesting Act into account, not only by reason of s 61(4), but by reason of certain other provisions identified in the P&E Act. The BFA did not seek to challenge the Tribunal's ruling of 19 May 2017 or otherwise suggest that the Tribunal should have refused the permit in the exercise of its discretion by reason of futility. Rather, the BFA's position was that the Tribunal should have considered that the grant of the permit was unlawful by reason that it was 'required' to apply the Vesting Act as a mandatory consideration under the P&E Act. Consistent with this position, the BFA actually sought a declaration in this proceeding that the proposed uses were inconsistent with, and did not accord with, the provisions of the Vesting Act (rather than an order for a remittal).[15]
27 Accordingly, it is necessary to consider whether the Tribunal ought to have applied the Vesting Act correctly, as a mandatory consideration, as raised by questions of law 1 and 7.
Question of law 1: whether the Tribunal was obliged to take the Vesting Act into account by reason of s 61(4) of the P&E Act****?[16]
28 The first question of law raised by the further amended notice of appeal was:
29 Section 61(4) of the P&E Act reads as follows:
...
(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.
30 Under s 3(1) of the P&E Act, 'registered restrictive covenant' means a 'restriction within the meaning of the Subdivision Act 1988 (Vic)' ('the Subdivision Act').
31 Under s 3(1) of the Subdivision Act 'restriction' means 'a restrictive covenant or a restriction which can be registered, or recorded in the Register under the Transfer of Land Act 1958 (Vic)' ('the TLA').
32 The relevant caveat was lodged by the Registrar pursuant to s 106(1)(a) of the TLA. Its operative provision reads:
On behalf of the named person and for the purpose(s) stated, the Registrar of Titles (Registrar) forbids registration of any dealing with any part of the land, other than a dealing which the Registrar is satisfied is compatible with the purpose for which the Caveat was recorded.
Purpose(s) for recording caveat
The land is not to be used otherwise then for public purposes as set out in Act 577 of 1877 [the Vesting Act].
34 The caveat was further only to be removed when the Registrar was satisfied that it was no longer required for the purpose for which it was recorded.
35 Section 106 of the TLA contains the power under which the Registrar acted as follows:
106 Powers of Registrar
(1) The Registrar-
(a) may record a caveat on behalf of the Crown, a minor or a person of unsound mind-
(i) to prohibit any transfer or dealing with any land registered in the name of that person; or
...
(iii) for the prevention of any fraud or improper dealing;
...
(2) The Registrar must not record in the Register a dealing with a folio on which a caveat has been recorded under subsection (1)(a) unless the Registrar is satisfied that the dealing is compatible with the purpose for which the caveat was recorded.
36 In relation to the suggestion that the Vesting Act was a 'registered restrictive covenant' for the purposes of s 61(4), the Tribunal found (at paragraph [39]):
... the fact is that a Certificate of Title exists, its information (at the present time) is undisputed, leads to the conclusion that the review site is owned in fee simple by the council and nothing more (sic). The Vesting Act is not referred to in the Certificate of Title and thus cannot be a registered restrictive covenant when one has regard to the definitions set out above. I note that this finding is consistent with the decision of Gibson DP in Gray v Colac-Otway SC.
37 In relation to the caveat the Tribunal stated (at paragraphs [40]-[41]):
A caveat is a notice that a person possesses a proprietary right in land, which operates effectively as a statutory injunction to the Registrar by restraining the Registrar from registering any dealing, except with the caveator's consent. This being the case, a caveat is a 'restriction' on the dealings that the Registrar may register.
However, that does not mean that a caveat is a registered restrictive covenant for the purposes of section 61(4) of the [P&E Act]. The granting of a planning permit does not require a dealing to be recorded on the Register. In this case, the planning permit will authorise minor buildings and works and use of the review site, but it will not require any dealing to be entered into the Register, and thus the Registrar is not restricted, restrained or injuncted as there is no dealing to prevent.
38 Although not completely clear, the BFA appeared to submit that, by reason of the Registrar's caveat, the Vesting Act itself was a 'registered restrictive covenant' within the definition of the P&E Act. Thus, it suggested that the Vesting Act is a 'restriction created by or under a statutory power,' which limits how the Council may use land it holds in fee simple. Further, that the Registrar's caveat, which is referred to on title, makes direct reference to the Vesting Act. The definition does not require the restriction to be recorded on title, rather it must merely be in the register.
39 The BFA also submitted that the caveat was a 'registered restrictive covenant' as it prohibits any dealings with the land on the grounds stated in the caveat.
40 Finally, it submitted that, if the permit was granted, it would authorise a breach of the Vesting Act as it purports to authorise the making of two leases in breach of that Act. This would amount to an 'improper dealing' given the inconsistency with the Vesting Act.
41 The Council suggested that the following questions were raised on this question of law: Is there a registered restrictive covenant?; If so, what does it provide?; What does the permit authorise?; Does the permit authorise anything which would result in breach of the covenant?
42 In terms of the first question, the Council submitted that the Vesting Act was not a registered restrictive covenant. Even if a 'restriction,' it is not an instrument which can be registered or recorded in the Register,[17] given the matters that may be recorded are those set out in s 27A of the TLA. The Vesting Act does not fall within that provision. In any event, the decision in Gray v Colac-Otway Shire Council ('Gray')[18] suggests that a restrictive covenant must already be registered or recorded on the Register to fall within s 3(1) of the P&E Act. The Council further submitted that there is no power under s 106(1)(a) of the TLA to record a restriction as to the purpose to which land may be used, as opposed to a recording regulating a dealing in land.
43 As to whether the caveat itself forms the registered restrictive covenant, the Council submitted that the primary, if not exclusive, meaning of a 'restriction' is a 'restrictive covenant.' It also noted that, although the Subdivision Act uses the term 'caveat' and 'caveator' throughout, it does not expressly use the term 'caveat' within the definition of 'restriction'.
44 The Council also submitted that a caveat is just a warning, usually that a person claims some proprietary interest, which has the effect of forbidding the Registrar from registering a dealing in respect of the land. A caveat does not itself create any legal rights or restrict the use of land, as held in Butler v Fairclough.[19] Thus the highest the caveat rises is to be a warning of a restriction. However, it is the restriction itself that must be able to be registered or recorded, not a warning of that restriction.
45 The conflation of 'caveat' and a 'restriction' could also produce unintended consequences. For example, landowners could potentially procure the removal of a caveat by obtaining a planning permit for removal or variation of a 'restriction' under the P&E Act.
46 Next, the Council submitted that, even if there was a 'registered restrictive covenant,' it only prevented certain 'dealings.' It suggested that entering into a lease is not a 'dealing' unless it is registered. More to the point, the permit only authorised the 'use' of the land, and said nothing about whether the use was to be by way of lease or not i.e. it would be open for the permit to be acted upon without leasing the land.
47 Accordingly, s 61(4) was not engaged because the caveat (even if a restriction) would not be 'breached.'
48 The principles relevant to statutory construction were recently summarised by Kiefel CJ and Keane J in R v A2.[20] They require consideration by the Court of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.
49 The definition of 'restriction' is unclear. However, when considered in the context of the Subdivision Act, it appears to be primarily directed to 'restrictions' as created under that Act on a plan of subdivision.[21] First, this is consistent with the approach taken by Gibson DP in Gray who considered the relevant extrinsic material concerning the introduction of the definition of 'registered restrictive covenant' in 2000.[22] Secondly, the reference to restrictions which can be 'registered' or 'recorded in the Register under the TLA' further suggests that the legislature is intending to cover restrictive covenants (which can be recorded) or restrictions under the Subdivision Act (which can be registered). Thus, while a 'restriction' under the Subdivision Act is generally created on registration under s 24(2)(d), a restrictive covenant is 'recorded' under s 88(1) of the TLA.
50 Insofar as the BFA suggested that the Vesting Act was a restriction, it failed to elaborate on how an Act would be covered by this concept. Even if it is so covered, I am unable to be satisfied that an Act can, of itself, be 'registered, or recorded in the Register under the TLA.' Thus, I was not taken to any specific provision of the TLA, or the Subdivision Act, which made provision for an Act to be registered or recorded. This is in contrast to the specific provision made for a number of other documents. Thus, for example, instruments of transfer and mortgage may be registered,[23] while there is specific provision for the recording of restrictive covenants,[24] and easements.[25] In fact, consistent with this view, the Registrar has chosen in this case to give notice of the Vesting Act via the caveat, and not by any recording of the Act in itself.
51 Accordingly, no error of law has been made in respect of the finding that the Vesting Act was not itself a registered restrictive covenant.[26] Even if the Tribunal was in error in finding that, consistent with certain other views in Gray, s 61(4) only applies to 'registered' restrictive covenants (which is unnecessary to decide), any such error was immaterial given the Tribunal's finding was correct.[27]
52 I am also unable to be satisfied that the caveat constitutes a 'restriction' within the meaning of s 3(1) of the Subdivision Act. Even if that term is read more broadly, a caveat does not of itself create rights or impose restrictions. Rather, the general effect of the caveat provisions are to protect such pre-existing rights, not to enlarge or add to existing proprietary rights.[28] I have given consideration to whether the fact that it is a Registrar's caveat takes the matter any further, particularly given the Registrar should not record a dealing unless satisfied that it is compatible with the purpose for which the caveat was recorded (s 106(2) of the TLA). However, this additional power does not detract from the fundamental nature of a caveat which does not of itself create a right, or restriction, but rather operates to protect whatever pre-existing obligation already exists.
54 This finding was not material, however, given the Tribunal's further finding at paragraph [41]. Thus, even if the caveat was a 'restriction', it only operated to limit the circumstances in which the Registrar could record a 'dealing' (under s 106(2) of the TLA). The permit itself does not authorise a 'dealing.' More particularly, it does not authorise the entry into a lease as alleged (presuming, without deciding, that this would be a 'dealing').
55 Rather, the Tribunal was correct in its finding that the permit will 'authorise minor buildings and works and use of the review site', but will not authorise or require any 'dealing' to be entered into the Register in contravention of the terms of the caveat.
56 In such circumstances, even if the caveat constituted a 'registered restrictive covenant', the grant of the permit would not authorise anything which would result in a breach of that covenant given it would not authorise any relevant 'dealing' at all, and certainly none incompatible with the Vesting Act.[31]
57 It follows that the Tribunal did not fail to comply with s 61(4) of the P&E Act, and that the grounds particularised at question of law 1 fail.
Question of law 7: whether the Tribunal was obliged to take the Vesting Act into account by reason of various provisions in the P&E Act****?
58 The seventh question of law raised by the further amended notice of appeal was:
Did the Tribunal, in determining the applications made pursuant to s 82 of the Planning and Environment Act 1987 (Vic), fail to take account of matters or have regard to the matters required by s 84B(1)(a), (b), and (2)(k)?
59 In further particulars provided to this question of law, the BFA cited the provisions, above, and alleged that the Tribunal failed to take account of the proper application and construction of the Vesting Act, and failed to take account of various matters with respect to the proposed uses of the land arising from the proper application and construction of that Act.[32] It also alleged that those various matters were 'required to be considered' by reason of s 60 of the P&E Act, particularly s 60(1A)(j) and s 60(1)(f).[33]
60 Section 1 of the P&E Act provides that the purpose of the Act is to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.
61 The relevant provisions of the P&E Act cited are then:
60 What matters must a responsible authority consider?
(1) Before deciding on an application, the responsible authority must consider -
...
(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.
(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -
...
84B Matters for Tribunal to take into account
(1) In determining an application for review under this Act, the Tribunal must -
(a) take account of any matter which the person or body in respect of whose decision the application for review is made -
(i) properly took account of in making its decision; or
(ii) was required to take account of in making its decision; and
(b) have regard to any matter which the person or body in respect of whose decision the application for review is made -
(i) properly had regard to in making its decision; or
(ii) is required to have regard to in making its decision.
(2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -
...
(k) must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.
62 First, the BFA submitted that compliance with the Vesting Act and all the matters that arise from it, can have a positive or detrimental social effect. The Tribunal was therefore obliged to take these matters into account under s 60(1)(f). Secondly, it was suggested that the application of the Vesting Act was 'any other relevant matter' under s 60(1A)(j). Further, under s 84B(2)(k), the Vesting Act was 'any other Act.'
63 The combination of all these provisions meant that the Tribunal was bound to take into account the correct meaning of the words 'place of public resort or recreation' in order to validly grant the permit.
64 Therefore, even if the BFA lost on the registered restrictive covenant point, there was still a failure to take into account mandatory considerations.
65 The Council submitted that the only cited provision with any specificity was s 60(1)(f). However, it was quite clear that the Tribunal considered the social and economic effects of the café and life saving club and regarded the facilities as 'positives.'
66 Insofar as s 84B(2)(k) was concerned, senior counsel emphasized that the consideration needed to be one to be taken into account 'in determining the application for review.' For example, there might be relevant provisions in the Subdivision Act or the Building Act 1993 (Vic). However, there was nothing in the P&E Act or the Vesting Act which required the Tribunal to consider the Vesting Act in determining the application for review before it. Again, the proper way to deal with the issue was, rather, by way of declaration where the real issues could be raised with proper contradictors; not by way of an advisory opinion.
67 The factors a decision maker is bound to consider are determined by construction of the statute. Moreover, where a discretion is unconfined, a court will not find that the decision maker is bound to take something into account unless an implication that it is bound to do so is found in the subject matter, scope and purpose of the Act.[34]
68 In considering these principles in this context it is relevant that the P&E Act provides for a very prescriptive regime as to what is to be taken into account. It is significant in that context that no specific mention is made of the Vesting Act.
69 There may also be some doubt as to whether the Tribunal was obliged to take the Vesting Act into account by reason of the provisions identified in circumstances where these provisions were not raised with the Tribunal. However, this is of no consequence given I am not satisfied that the provisions identified assist the BFA.
70 First, I am unable to be satisfied that s 60(1A)(j) makes the Vesting Act a mandatory consideration 'required' to be taken into account as alleged at question of law 7. Although the Tribunal was entitled to take this Act into account on the question of discretion, as indicated already, the BFA did not challenge the Tribunal's decision on this basis. Futility was also a matter of discretion and was not 'required' to be considered as alleged.[35]
71 In terms of ss 84B(1)(a) and 84B(1)(b), the BFA did not adduce into evidence the original decision to grant the permit issued on 22 December 2016. Further, although the minutes of a Council meeting of 20 December 2016 (which appear in the court book) do contain some reference to the Vesting Act (in relation to whether the works were on Crown land), these appear in an independently prepared Land Status Report which do not demonstrate any consideration by the Council itself. In any event, the BFA did not demonstrate that a proper construction of the Vesting Act was something 'properly' or 'required' to have been taken into account under s 84B(1).[36] In fact, the BFA did not identify anything in the P&E Act which suggests that it was mandatory to consider whether there is an entitlement to use the land in the way proposed. As indicated already, the effect of s 48(1) of the P&E Act is that an applicant is still entitled to apply for a permit even if he/she is not the owner of the land. The applicant need only include evidence that the owner has been notified about the application.
72 Further to this, I am also unable to be satisfied that the Tribunal was 'required' to take the Vesting Act into account under s 84B(2)(k) 'in determining the application for review.'[37] Thus the application for review was concerned with whether a permit should allow use of the land for three particular purposes. The Tribunal was not concerned with any restrictions on the Council's proprietary rights to so use the land.
73 Finally, s 60(1)(f) is directed to any significant social and economic effects which the use may have. It has nothing to do with a proper construction of the Vesting Act which purports to regulate the Council's entitlement to use the land.[38]
74 I am therefore not satisfied that a proper construction of the Vesting Act was a mandatory consideration.[39] It was also not suggested how a large range of evidentiary matters were mandatory considerations under the P&E Act.[40] In any event, for reasons given already, the Tribunal was not obliged to consider proprietary arrangements (e.g. the terms of any lease), nor the mechanics as to how the proposed uses would be effected (by profit making operations or otherwise).
75 The Tribunal therefore did not fail to take account of the matters specified in question of law 7.
76 The result is that the BFA has not demonstrated that the Tribunal was required to consider the Vesting Act as alleged by reason of s 61(4), or otherwise by reason of the provisions identified in the P&E Act.
77 It follows that the grounds to questions of law 1 and 7 must fail. Given the BFA has not even demonstrated that the Tribunal was obliged to consider the Vesting Act as alleged, I also consider that, although leave will be granted, the appeal will be dismissed. This does not mean that the applicability of the Act cannot be challenged at a future date. However, its applicability was not a matter for the Tribunal on an application for a planning permit.
78 It also follows that it was unnecessary and inappropriate for the Tribunal to consider the applicability of the Vesting Act as it purported to do in the (second) decision. It is also unnecessary, and possibly undesirable, for this Court to consider whether the Tribunal misconstrued that Act.
79 However, given the extensive submissions and time devoted to this topic, and in case I am wrong, I will go on to consider the issue, below. It is important to highlight, however, that the Vesting Act is being considered in the narrow context of an appeal on a question of law from a decision granting a permit for use under the P&E Act.
Issue 2: was there an error made in relation to the Vesting Act presuming the Tribunal was obliged to take it into account?
80 Questions of law 2-5 challenged particular findings of the Tribunal as follows:
(a) at paragraph [64] that the presence of the proposed café on the land the subject of the application and its use thereby is consistent with the Vesting Act (question 2);
(b) at paragraph [65] that the BLSC is a use that it considered to be consistent with and incidental to the purpose of the Vesting Act (question 3);
(c) at paragraph [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act as a part of the overall operation of the life saving club (question 4);
(d) at paragraph [66] that the multi-purpose function space in the proposed development and its use thereby is consistent with the Vesting Act in its use at all times other than when used as part of the overall operation of the life saving club (question 5).
81 The question raised was substantially identical in each case as follows:
has the Tribunal asked itself the wrong question, made a finding unsupported by fact, failed to take into account relevant considerations or taken into account irrelevant considerations or made an erroneous, illogical or unreasonable decision in the terms of whether the [relevant specified use] is to be used in compliance with the Vesting Act?
82 The grounds particularised under each question raise a scattergun of allegations, though the key allegation was that there had been a misconstruction of the Vesting Act.
83 The BFA also raised the following question of law 6:
84 In order to assess these questions, it is necessary to set out the relevant parts of the Tribunal's decision, as below:
85 The BFA submitted that the grant of the permit was made in breach of the Vesting Act, and was thus infected by jurisdictional error. More particularly, the Tribunal had failed to properly consider the large weight of authority in the general law, which would have compelled a contrary conclusion on the evidence.
86 In light of this, the BFA relied upon a number of propositions to suggest that the Tribunal failed to correctly apply the terms of the Vesting Act and the LGA.[41]
87 Firstly, the BFA submitted that the use and enjoyment of the land cannot be afforded to persons other than the 'inhabitants.' A proposal such as this which affords the use to someone other than the inhabitants i.e. providing exclusive possession (by leasing) to the BLSC and the unknown café operator, would exclude the inhabitants contrary to the Vesting Act.
88 Secondly, any exercise of power by the Council cannot exceed the purpose of the Vesting Act to set aside the land for 'public resort or recreation'. The permit purported to grant permissions beyond this, by granting leases with a power to exclude, and which would result in special privileges being given to members.
89 The test is that the use of the land must be for both a public purpose and for recreational and/or resorting purposes. A café is not public use, but private use by the lessee, and it is not resort or recreation; rather it is the conduct of a mercantile operation. The life saving club is also a private club and the public element is missing in the actual use of the space, which will be leased to exclude the public. While there would be some ability for the Council to limit or regulate public use of the relevant land, these issues were never grappled with by the Tribunal. Further, the fact that there is a fee (albeit modest) confirms that the right of a member to use the space is different from a right of the public.
90 Thirdly, the test was whether the use of the land was for the purpose of public resort or recreation, and not whether a proposed activity on the land would be consistent with public resort and recreation as the Tribunal found. The Tribunal's reasoning thereby erroneously conflated purpose and activity. The same conflation of activity and use or purpose was disapproved in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council ('Goomallee's Case').[42] However, even if this conflation was correct, the result would be the same as the Council proposes to lease the land for private/profit making activities (ie the relevant use is the immediate use of the land and not what flows from it).
91 Insofar as ancillary use was concerned, counsel suggested that while there may be some ancillary uses, those uses must still be for a public purpose and must not exclude the public nor be used for profit derogation. In reply he suggested that the relevant use is not that which the public derive incidentally from the occupancy, but rather the relevant use by the occupant businesses.
92 Fourthly, if the land was to be made available to a private interest, any profits derived from providing facilities to the public must be devoted to the public i.e. it may be different if the profits were returned to the Council, or if the 'inhabitants' were getting a return in some way.
93 However the Tribunal paid no reference to the use of any profit in its reasons. This was despite the fact that the material before the Tribunal suggested that the Council's intention was to provide the opportunity to the BLSC to generate more funds. It was also their intention to charge for hiring of the community space.
94 The BFA also submitted that the existing life saving clubhouse and a nearby scout hall are also in continuing breach of the Vesting Act. It submitted that the proper course for the proposed development would be a statutory amendment.
95 The BFA relied on a number of cases which were said to expose the correct analysis to be applied. A key authority, for both parties, was Randwick Corporation v Rutledge ('Randwick').[43] The BFA particularly submitted that the application of Randwick in Storey v North Sydney Municipal Council ('Storey')[44] and Goomallee's Case suggests that Windeyer J's decision in Randwick (and the two conditions of use for public recreation - to be described below) are of general application and, contrary to the Tribunal's analysis, not limited to a ratings context.
96 The Council complained that the BFA sought to raise new arguments on appeal as well as rely on authorities that were not brought to the attention of the Tribunal.
97 The Council also submitted that questions of law 2-5 were directed to alleged errors in the Tribunal's findings of fact. Thus the words had no technical meaning and varied with context. Senior counsel emphasized that the test would be whether the facts were 'necessarily' within the description of a word in a statute,[45] or whether a conclusion was 'not open'.[46]
98 The Council cited various dictionary definitions and submitted that a use would be consistent with the Vesting Act if it amounted to 'public resort' or 'public recreation' or both. For example, a life saving club would plainly be a place of public resort for visitors requiring aid or assistance whilst a café would offer, or be a complementary offer, of recreation to members of the public.
99 Further, the term 'pleasure grounds' was and still is used with a meaning that would include a commercially operated park, with stalls, shows, refreshment houses, and the like. As a composite expression it would encompass a tract of land that is occupied or appropriated for pleasurable activities, and would encompass any buildings associated with that activity.
100 In terms of the BFA's first proposition, the Council submitted that the text of the Vesting Act makes it clear that it was not intended to grant a right of unfettered public access to the land; rather it contemplated that the Council may control access to, and improve, the land. First, it was stated to be for the public advantage to vest the land 'absolutely in the said corporation and to enable the Council therefore to improve the sale lands and maintain order ...' Secondly, the Act recognises the Council to have the discretionary powers granted under the LGA i.e. it 'may' afford the use and enjoyment to the inhabitants. Thirdly, the Council is expressly granted power to 'lay out', 'repair' and 'improve.' Fourthly, the LGA included a non-exhaustive list of activities. Apart from schools, none of the listed uses were expressed to be 'public.' Finally, such uses would be expected to be housed in buildings with restricted public access e.g. as to criteria for admission, and operating hours.
101 In any event, the authorities relied upon do not support the contention that 'public' invariably means complete and unfettered access to all members of the public at all times.
102 In terms of proposition two, as above, the statutory text does not require free and unrestricted access to all parts of the vested land at all times. In oral submission it was emphasized that, if the BFA was correct, then the obligation would apply to the whole of the vested land. The application's construction would lead to absurd results as it would render unlawful the yacht clubs, public baths and iconic bathing boxes. It would also render all of the life saving clubs on the vested land inoperable, compromising the safety of beach goers.
103 In terms of proposition three, the Council submitted that this was misconceived and attacked findings of fact.
104 The fourth proposition was also said to be misconceived as it seeks to impose a requirement under the Act which is not in the text. The so called 'profit' principle was related to the different statutory regime applicable in Randwick.
105 In oral submission the Council submitted that the Vesting Act did two things: first it vested in the Council an estate in fee simple (not a crown reserve); secondly it gave the Council certain 'rights and powers' in respect of that land with no mention of restrictions.
106 Moreover, given it had rights and powers 'as if' the land had been purchased as a place of public resort and recreation then, regardless of whether or not the purchase was actually for the purpose of public resort or recreation, it would be able to use that land for any of the seven specified purposes.
107 Further, the Council submitted that insofar as the LGA was concerned, the rights and powers were really those stated after the semicolon, which do not involve restrictions, but rather relate to drainage, repairs, putting up buildings etc. They may have to relate to the 'more convenient use and enjoyment of the land,' but this was not a big hurdle. The words 'afford the use and enjoyment therefore to the inhabitants' was also subject to a discretionary word, 'may.' This did not involve some right of the inhabitants to occupy the land at any time free of any limitation. Such a discretion was also subject to the Council's own bye-laws.
108 In any event, even assuming it was possible to imply into the words 'rights and powers' some form of restriction, the Council submitted that:
109 Senior counsel accepted that the relevant parts of the provision were 'pleasure grounds' or 'public resort or recreation.' He further highlighted that the Tribunal dealt with pleasure grounds at paragraphs [71]-[72].
110 Within the law/fact formulation, he submitted that the findings could not be shown to be 'not open.' Further, the use of the word 'consistent' is entirely apposite where only a small portion of the vested land was under consideration.
111 Other cases also needed to be distinguished given they were not concerned with this particular statutory framework. More particularly:
112 Dealing first with the Vesting Act, the land was vested in the Council as an indefeasible estate of fee simple. Further, the Council was to have 'the same rights and powers as if [the land] had been purchased ... as a place of public resort or recreation' under s 483 of the LGA.
113 I do not accept the Council's submission that the words 'rights and powers' are not restrictive. Although they might appear to be expansive, I consider that this phrase is clearly intended to define the rights and powers of the Council, consistently with the overall purpose of the Act 'of public recreation.'
114 However equally, I do not accept the BFA's submissions that the rights and powers are restricted to use as 'public resort or recreation.' Rather, given the Council has powers 'as if' the land had been purchased under s 483 of the LGA, I consider that the Council has rights to use the land for the seven ways specified. This is of little consequence in this case, however, since the ambit of jurisdiction is restricted to a review of the Tribunal's decision. Although the Tribunal cited 'pleasure grounds' in a general way, the actual finding was that the BLSC and café enhanced the ability for the site to be used 'for public recreation and as a place of public resort.'[49]
115 Although it is important to also consider the overriding purpose, the Council was given power to purchase the land 'to be used' in one of the prescribed ways. This may be compared with some of the other cases where the focus was on purpose alone.
116 I further accept that the Council 'may' do various other things e.g. undertake improvements on the land, and afford the land 'to the inhabitants.' However, this was in addition to the power already given to use the land in the prescribed ways.
117 Finally, I am unable to be satisfied that the cases such as Randwick and Storey can be effectively discarded on the basis that they deal with different provisions, concern public reserves, and/or are ratings cases.
118 Rather, as Storey, below, makes clear, the principles identified by Windeyer J have been applied in a wide variety of non-ratings contexts. Although any differences in language need to be considered, these cases provide important guidance, particularly as to when land can be said to be used for public recreation.
119 Turning then to the authorities, in Randwick the issue arose as to whether Randwick racecourse was used as a 'public reserve', and exempt from rates for the purposes of s 132(1)(c) of the Local Government Act 1919 (NSW). The relevant land had been subject to a grant by the Crown to certain trustees who were permitted to use the land as a racecourse. The trustees were also empowered to, and did, grant leases to the Australian Jockey Club.
120 The critical question was whether the racecourse was 'used as a public reserve' within the meaning of the relevant Act, and where 'public reserve' meant 'public park and any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature, but [did] not include a common'.
121 The High Court (Dixon CJ, Fullagar, Kitto and Windeyer JJ) found that the land was not exempt from rating under the relevant Act_._
122 In the lead judgment, Windeyer J (with whom Dixon CJ and Kitto J agreed) noted that the term 'public reserve' had a special meaning, but that it was necessary to understand it in the particular statutory definition. His Honour considered that the key to that meaning was to be found in the history of the Crown lands legislation which he then described.[50]
123 His Honour considered that it was necessary to look at the 'actual use' of the land, and highlighted that the only way in which the trustees used the land was by leasing it to the club to be used by it as a racecourse. Further, that when the Act speaks of land used for a public reserve it is referring to the 'actual use to which the land is put by the persons who in law control it for the time being.'[51]
124 In a passage that has been applied in many cases, Windeyer J further stated:[52]
In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the Act contemplates (see, in addition to the definition, ss. 344-355) - and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As to the first : It is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or for any similar sufficient reason. It is not incompatible with a place being dedicated for public recreation and enjoyment that its use be regulated, and that persons using it must use it having regard to the particular form of recreation and enjoyment which takes place there - whether, for example, it be a golf links, tennis court, ocean beach, zoological gardens or rifle range. It is not incompatible with a public park or reserve that at particular times, as for example at night, the public are wholly excluded. And it is not necessarily incompatible with a place being a place for public recreation and enjoyment that certain persons are allowed access at times when the general public is excluded or are allowed into parts where the general public cannot go - for example research students may have special advantages in a public library, scientists in a public museum and so on. But, as Walsh J. said in the Supreme Court, "the enjoyment of special privileges by members of the club, differing in kind from any which the general public enjoy, is to be regarded as a material consideration in ascertaining whether the land is used for public purposes".
As to the second requirement, that the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserve, provided that the moneys thus obtained are all devoted to its maintenance. Walsh J. referred to this also as a material consideration. It is more than that. It must always - or nearly always - be a decisive consideration. The general obligation of trustees of public parks and reserves to apply to their maintenance and improvement all moneys paid by the public for the right to enjoy them is recognized by the Local Government Act 1919, s. 352; and it lies at the root of decisions to be mentioned.
125 His Honour therefore allowed for restrictions, particularly having regard to the way the land was otherwise used, and having regard to what was 'compatible.' This concept of 'compatibility' or incidental purpose was also taken up by Menzies J who agreed with the result, but for different reasons.[53] Thus his Honour considered that uses which by themselves may not be obvious uses for a public reserve might, as part of a wider use, be properly regarded as part of a use for a public reserve. The examples he gave included establishment and management of a restaurant by private caterers, the hiring of pleasure boats in a public park, the provisions of stalls for the sale of machinery at an agricultural show, and the granting of privileges to members of a society in the use of zoological gardens.[54]
126 In Storey, the High Court had cause to consider Randwick in a non-ratings context. In that case, the Commissioner for Railways had transferred certain land known as Watt Park in Lavender Bay, Sydney to the relevant council. The transfer contained a restrictive covenant which provided that the transferee would not use the land other than for the purpose of a 'public reserve,' as defined in the same legislation as considered in Randwick, above.
127 The transferee proposed to lease part of the land bound by the covenant for a term of 21 years to the Boy Scouts' Association which proposed to erect a scout hall on it and to use the land for scouting purposes.
128 The Court held that the grant of a lease resulting in the total exclusion of all members of the public, other than those who were members of the Boy Scouts' Association, was contrary to the terms of the covenant.
129 Walsh J acknowledged that Randwick was relevant and stated:[55]
But in my opinion the reasons in [Randwick] afford strong support for the conclusion that if the proposed lease were granted that would involve a breach of the covenant. It would not then be possible to say of the land that it was in the relevant sense open to the public generally. The land, the subject of the lease, would be open only to members of a particular Association.
130 The principles in Randwick were therefore applied in a non-ratings context consistent with a number of other cases including Goomallee's Case, below.
131 Thus, Goomallee's Case arose in a very different context wherein the NSW Aboriginal Land Council made a claim under the Aboriginal Land Rights Act 1983 (NSW) in respect of an area of Crown land reserved from sale for the public purpose of 'public recreation.' The Minister administering the Crown Lands Act refused the claim on the basis that the land was being lawfully used or occupied under a grazing license that the Minister had granted. The New South Wales Court of Appeal upheld the finding of the primary judge that the issue of the grazing licence was not a valid exercise of the Minister's power.
132 Basten JA, in the leading judgment, rejected the Minister's submission that the test was one of inconsistency with the permitted or actual use i.e. that it was enough that, although grazing was not a form of public recreation, it was not inconsistent with it. Rather, he found that the scope of the power to grant the licence in that case did not depend on the use of the land but the terms of the particular restraint. Those terms did not refer to the manner in which the land could be used 'but the purpose for which it could be used.' The Minister's submission erroneously thereby conflated purpose and activity.[56]
133 He also stated that the Minister's test of inconsistency of use would, in any event, be answered by reference to the legal rights or privileges of the public and the rights conferred on the licensee. The test was not met on examination of the terms of the licence.[57]
134 Basten JA also went on to examine the concept of 'ancillary' or 'incidental' use. Thus, while the primary focus is that the public must use the broader land for 'recreation,' Basten JA allowed for the possibility that there may be a different user if that use is deemed to be truly incidental to the broader public use. In fact Basten JA suggested, citing Randwick, that where land is reserved 'for a specified public purpose' it may be that a public purpose can be effectuated by making the land available to a private interest which can make a profit so long as those profits are devoted to the public purpose_._ However, his Honour found that this was not the case.[58] He further cited Waverley Municipal Council v Attorney-General ('Waverley')[59] (which will be considered below) as well as Attorney-General for New South Wales v Cooma Municipal Council ('Cooma')[60] wherein Brereton J suggested that any restriction upon the public's access to the whole of the area can be justified 'only on the basis that it is in the interest of the public and to provide for their recreation within the area that they are so excluded from part of it.'[61] Basten JA concluded:[62]
To make lands available for public recreation it may be necessary for a manager to have control of the land in order to maintain it. It may also be appropriate to allow for the construction of sporting facilities for public use. Other facilities may be constructed which are ancillary to public recreation, such as public toilets. It may be appropriate for areas to be fenced to control public access, for example by shutting gates at sunset. All of these activities on land and the vesting of land in bodies other than the Crown in order to carry out such activities could reasonably be held to be in furtherance of, or incidental to, the relevant public purpose.
135 Other cases have also considered this concept of 'ancillary' or 'incidental' use as described, below.
136 In an early English case of Burnell v Downham Market Urban District Council ('Burnell')[63] a seven acre field was conveyed to a council upon trust for the perpetual use thereof by the public 'for the purposes of exercise and recreation pursuant to the provisions of the Open Spaces Act 1906.' The council let the tennis courts to local clubs for their exclusive use for certain hours after 6 pm, and had entered into an agreement with the local football and cricket clubs in consideration of a payment to use the cricket or football pitches on certain days with the right to close the field on agreed days and to make a charge for admission.
137 The Court upheld a decision of a tribunal that the real occupiers were the public. It held that the issue raised was a question of degree and fact,[64] and found that the tribunal was entitled to find that the limited exclusion of the public resulting from the council's agreement with the local clubs was ancillary to their management of the field as an open space.[65]
138 The decision of the New South Wales Court of Appeal in Waverley concerned a council who was trustee of a public reserve and wished to demolish an old building and commence to erect a new building. The lower floor was intended to provide public change rooms, but the upper floor was intended to be occupied by an organisation called the Bronte Splashers Swimming Club, but be available for use by other community groups.
139 The issue was whether the provisions of the relevant Local Government Act authorised the council to carry its proposal into effect in circumstances where the power to improve the land was limited to improvements whose purpose was related to the use and enjoyment of the park as a public park or 'public recreation.'
140 The Court held that the erection of the upper floor was not authorised, and was properly restrained by way of an injunction. This was because, applying Randwick and Storey, grant of the proposed licence would not lead to the structure being open to the public generally as of right.
141 In the leading judgment, Hope JA (with whom Glass and Samuels JJA agreed) stated that whether a particular building is one whose use is for a purpose within such a power is not to be treated narrowly or strictly, although the proposed use must be properly related to use and enjoyment of the park. That is, the building should increase the enjoyment of persons who wanted to walk in the grounds and might induce more people to frequent them.[66] His Honour also said:[67]
the buildings the erection of which on Bronte Park would be authorized by s. 350 (h) are buildings which promote or are ancillary to the use of the park as a public park and for public recreation, including, if there is a sportsground on the park, grandstands and other buildings for the convenience of the public in relation to the use of the sportsground.
142 However, in that case, the use of the structure for the holding of meetings or carrying on of activities by particular persons 'which are in no way related to the use of the park as a public park or for public recreation would not be within the scope' since 'the necessary nexus with the general purpose of the park is missing.'[68]
143 Brush Park Bowling Club Limited v Ryde Municipal Council[69] was a ratings case where the key question was whether land reserved for the purpose of public recreation, part of which was leased to a bowling club, was used for public recreation, and thus exempt from rates as a 'public reserve' under the Local Government Act 1919 (NSW).
144 Notably, though the lease stipulated that the public would retain a free right of access to the leased land, this was to the exclusion of the clubhouse and greens which comprised 90% of the leased land. The Court concluded 'in fact and in law' that it was impossible to ignore the private use, having regard to the geographical lack of proximity between the club and the rest of the parklands (in particular its location at a far extremity and separated by a deep gully). Thus, the Court could not treat the use 'as merely ancillary or incidental to the use of the rest of the park for public recreation.'[70]
145 Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council ('Royal Botanic Gardens')[71] was also a ratings case where the trustees leased a portion of a building on the reserved land as a kiosk which supplied refreshments and light meals to the public, as well as occasionally rendering some incidental services free.
146 The Court cited the judgments of both Menzies and Windeyer JJ in Randwick. In terms of the first Windeyer J condition, the Court noted that the Royal Botanical Gardens was open to the public generally as of right. In turning to the second condition, the Court noted that, even where some part of an area of land was used for private purposes, it was 'a question of fact' whether such use is so foreign to the use stipulated that it must be capable of being described as used for private benefit.[72]
147 The Court then concluded that the occupation of the kiosk was not so foreign to the purpose of public recreation. This was because of, inter alia, the small size of the kiosk in comparison with the whole area of the land; 'that the provision of modest refreshment can reasonably be regarded as an incident of recreation in the open air;' that members of the public would derive some recreational benefit in traversing a significant distance through the Gardens to arrive at the kiosk; and that other facilities provided by the kiosk broadly upheld the public purpose of the Gardens.[73] Accordingly, the separate letting of the kiosk was 'ancillary to the purposes of public recreation for which the Royal Botanic Gardens are dedicated' so as to justify an exemption from rates.[74]
148 A similar approach was taken in Cole v Moree Municipal Council[75] which concerned an area of land used by two clubs for horse racing and greyhound racing (about 52 times a year in total). When one of the clubs was holding a racing meeting, members of the public could only enter parts of the land on payment of an admission fee (though there were parts that could be accessed free of charge). However, at times other than during race meetings members of the public were free to enter the land. The judge highlighted that the judgment of Windeyer J in Randwick suggested that any restrictions should have some relevance to the purpose for which the land was dedicated. He found that the various restrictions imposed were 'in truth, incidental to and imposed for the purpose for which, the land was reserved' in that particular case.[76]
149 Having considered the above cases, as well as a number of other cases cited by the parties, the following principles may be distilled.
150 Subject to the words of the specific provision, in order for land to be used for public recreation and enjoyment, first, the land must be open to the public generally as of right; secondly it should not be a source of private profit.[77]
151 In relation to the first point, it is not necessary for all members of the public to have free access to all parts of the land at all times. Public access may be controlled or regulated, for example, with fences, and may be entirely prevented at times (e.g. at night).[78] The enjoyment of special privileges by members of a club may also not be fatal though it is a material consideration.[79]
153 The grant of a lease resulting in the total exclusion of all members of the public may therefore be contrary to use for a relevant public purpose.[82] This is consistent with a focus being generally on the persons who in law control the land.[83] Similarly, any imposition of a fee is also important as it involves a restriction on the use of the land by the public.[84]
154 Nevertheless, a limitation on the public may be justifiable if it can be described as 'ancillary,'[85] or 'incidental'[86] to the overall relevant purpose of public recreation. It may even be appropriate to vest land in bodies other than the Crown provided this is done in furtherance of, or incidental to, the relevant public purpose.[87]
155 In considering whether any restriction or private use is 'ancillary' or 'incidental' to the use of the rest of the land for a public purpose:
156 Before analysing the reasons of the Tribunal it is necessary to consider the four 'propositions' advanced by the BFA.
157 Insofar as complaint is made that the proposed use will afford use and enjoyment to persons other than the inhabitants, being the lessees, a number of points can be made. First, as highlighted already, the grant of the permit does not authorise or create a lease at all, rather it simply grants permission for a particular use of the land. Secondly, as cited above, even if a private lease is authorised this is not necessarily fatal. Rather, it will be necessary to consider whether that private use is relevantly ancillary to use of the land for public resort or recreation. If anything, the further power in this case, to afford the use and enjoyment of the land to the 'inhabitants', may actually enable the Council to afford a specific benefit to those residents within the municipality (as opposed to the public).
158 Secondly, it may be accepted that the exercise of power by the Council should not generally exceed a purpose of using the land for public resort or recreation. Further, that any limitations on use of the public - by imposition of fees and/or limitation on access - must be carefully considered. However, such limitation may be justified if, as indicated above, they are viewed as relevantly incidental to the public purpose.
159 Thirdly, the BFA sought to make much of the remarks in Goomallee's Case cited above to the effect that the relevant test was not consistency of activity, but, rather, whether the use of the land was for the relevant purpose. However, the test in Goomallee's Case involved a different test from the present one where the Vesting Act and LGA focus on how the land is 'to be used.' More significantly, unlike in Goomallee's Case, the issue raised in this case is whether the café/BLSC use is 'ancillary' to the use, for a public purpose, of the rest of the vested land. Goomallee's Case also expressly allowed for limitations on public use provided they could reasonably be held to be 'in furtherance of, or incidental to, the relevant public purpose.'[97]
160 The Tribunal was also not concerned to identify the ultimate 'controller/owner' of the land on a permit application for use. In any event, even if the café and/or the BLSC was controlled by a different person, this does not matter provided this use was relevantly 'ancillary.'
161 Finally, I accept that it may ultimately be relevant to consider the use of any profits, and particularly, whether such profits are returned to benefit the public by way, for example, of making the life saving club viable.[98] However, as emphasized throughout these reasons, such issues did not arise as matters for the Tribunal on a decision on a planning permit. In any event, the separate letting of the kiosk to a business was also justified as properly 'ancillary' in the case of Royal Botanic Gardens, above.
162 Returning to the Tribunal reasons, the Tribunal did cite Randwick and sought to distinguish it because it dealt with the rating of land. However, it did not thereby exclude consideration of the case,[99] but, rather, correctly noted that the case did not stand for the proposition that it was necessary for all members of the public to have free access at all times.[100] It also importantly noted that there were other cases which (consistently with Randwick) qualified the 'as of right' access by the public. More particularly, it specifically cited Cooma and Goomallee's Case and suggested that there may be controls on public access provided those restrictions were 'consistent or incidental to ... the relevant public purpose.'[101]
163 There was no error in this approach. The fact that the Tribunal did not include the entire quote from Windeyer J's judgment about use of the profits is also unexceptional in circumstances where the Tribunal was not concerned with examining those details.[102] The Tribunal was also not examining the entire vested land against the two conditions identified by Windeyer J in circumstances where it was not generally challenged that the vast bulk of the land was open and held for the public.[103] Rather, the Tribunal was examining whether the particular uses were 'incidental to' the public use of the rest of the vested land.
164 Therefore, question of law 6 must be answered in the negative, and the grounds raised to this question are rejected.
165 In terms of the BLSC, the Tribunal acknowledged that it would not be open to the public at all times, but found that the fact that small parts of the review site could not be used did not prevent the review site in its totality from being used for the relevant purpose (at paragraph [68] and also paragraph [60]). This was correct.[104]
166 The Tribunal also considered that attending the activities in the buildings may attract a fee, but otherwise did not consider the precise basis on which the BLSC would occupy this part of the vested land, including the terms of any lease and/or how any profits would be accounted for. For reasons given already, however, this was perfectly explicable given the nature of the planning function where such arrangements are not the subject of the review.[105] However, it should be borne in mind that the mere fact that there is the imposition of a fee;[106] that members may carry special privileges; [107] and/or that there may be use by a profit making commercial enterprise,[108] will not necessarily be fatal if the use is properly incidental.
167 Critically, in the context of the application for a planning permit, the Tribunal found that the use to be permitted was 'consistent with and incidental to' the purpose of the Vesting Act.[109] In doing so, the Tribunal considered that the BLSC provided 'a valuable service to the public that frequents this part of the foreshore'; that it was difficult to argue that a life saving club was not integral to Australian beach culture; that the BLSC provided a safe environment for the review site; that this in turn allowed for the public to 'frequent the review site and enjoy it' ; and that this 'enhances the use of the review site for recreation.'[110]
168 Consistent with Waverley, the reasoning thereby dealt with the 'nexus' between the restricted use and the general purpose of the public land, and expressly found that the restricted use would cause those using the review site to 'enjoy it' such that there was an enhancement of the review site. This was also consistent with the express finding at paragraph [67] that the BLSC would 'enhance' the ability for the review site to be used for public recreation and as a place of public resort.
169 On the relevant evidence before the Tribunal it thereby found, in substance, that the use of the land as a life saving club was essentially 'incidental' (or 'ancillary') to the use of the rest of the land for public recreation.
170 I consider that such a finding was clearly open, and (to the extent necessary) not unreasonable,[111] on a proper construction of the Vesting Act. No error is thereby demonstrated as alleged in the grounds to question of law 3.
171 As to the café, the Tribunal did not examine whether the café would be operated for profit or otherwise, nor the terms of any lease. However, this again was appropriate given its narrow review role.[112] The Tribunal also correctly acknowledged that it was not necessary for the public to have free access at all times (e.g. at paragraphs [60] and [68]).[113]
172 The Tribunal rather stated that the presence of a café was 'consistent' with a 'use' of public recreation and place of public resort and recreation.[114] It also went on to say that the ability to purchase a cold drink, ice-cream, coffee or food is consistent with the concept of 'recreation'. Importantly, it concluded that 'the purchase of a refreshment or snack as one promenaded along the foreshore would be consistent with recreation.' Further, it found that the café enhance[s] the ability for the review site to be used for public recreation and as a place of public resort.[115]
173 I can find no error in the use of the word 'presence' which was clearly used interchangeably as a 'use' within the first sentence of paragraph [64]) (as well as in paragraph [61]).[116] The use of the word 'consistent' was also clearly used interchangeably with 'incidental to' (e.g. in paragraphs [58] and [65]).
174 The Tribunal otherwise clearly asked itself how the use related to the rest of the land consistently with Waverley, Cooma, and Goomallee's Case. The language of the Tribunal was also analogous to that used in Royal Botanic Gardens, namely, that the provision of modest refreshment 'can reasonably be regarded as an incident of recreation in the open air.'
175 I therefore consider that the finding in relation to the café was also open and not unreasonable on a proper construction of the Vesting Act.[117] The grounds at question of law 2 are also rejected.
176 Finally, there is the multi-purpose function space. Again, given the role of the Tribunal, it did not investigate the precise terms of any proposed arrangement concerning this space, including whether it would be by way of lease, whether for profit, or otherwise.[118] The Tribunal considered this to be part of the overall operation of the BLSC including training for its members.[119] In such circumstances, the Tribunal's finding regarding the BLSC also covers this space with no error identified.[120] The grounds advanced under question of law 4 are also rejected.
177 Insofar as complaint is made that the use of the space was inconsistent with use for public recreation if it was used other than as part of the operation of the BLSC, the Tribunal determined that this issue did not arise, as a matter of fact.[121] The evidence before the Tribunal included architectural plans where the space was designated as a 'multi-purpose/training room' in circumstances where no firm arrangements had been settled for the use of the space by other third party users. It was therefore open for the Tribunal to consider the space as part of the BLSC and premature for it to consider use other than as part of the overall operation of the BLSC. Question of law 5 should also be answered in the negative.
178 There may be an issue if, in the future, the Council hires this space out to private parties. Thus, as stated in Waverley, the use of a structure for carrying on activities which are in no way related to the use for public recreation would not be within the scope of the power.[122] This may be qualified in this case if the facility is used for the 'inhabitants' of Brighton. However, it is unnecessary to consider this further given the subject matter of the application.
179 I am therefore not satisfied that the Tribunal has fallen into error as alleged.
180 The result is that, if it was necessary to consider, each of questions of law 2-6 would be answered in the negative.
181 Thus, even if I was wrong as to the applicability of the Vesting Act (by reason of the matters alleged at questions of law 1 or 7), the applicant has not demonstrated that the Tribunal failed to properly apply that Act.
182 Subject to hearing from the parties on the question of costs, the following orders are appropriate:
3. The applicant is to pay the first respondent's costs of the proceeding.
[1] An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for the purposes of Public Recreation (31 October 1877) (Act No. 577 of 1877).
[2] Wertheimer v Bayside CC [2017] VCAT 726 ('the Tribunal's preliminary decision').
[4] Wertheimer v Bayside CC (No 2) [2019] VCAT 1689, [13] ('the Tribunal reasons').
[8] Such persons included various objectors to the permit, who had appeared before the Tribunal, and who were joined as the second to ninth respondents in the proceeding in this Court.
[9] Webb v Were [1876] VicLawRp 35; (1876) 2 VLR (Eq) 28.
[10] Victoria, Parliamentary Debates, Legislative Assembly, 12 September 1877, 798 (Thomas Bent).
[11] The parties accepted that the Court could use this form of the provision. Notwithstanding that there was a later re-enactment, there was no substantive difference: transcript of proceeding, 27 November 2020, 13.26-14.17.
[13] Although there did appear to be a concession at paragraph [66] of the Council's submissions before the tribunal, it only appeared to have been put on the basis that the Vesting Act was relevant to the issue of futility: see paragraphs [81] - [86] and paragraph [37]: First applicant's outline of submissions (Vesting Act), 16 October 2019.
[14] This was also consistent with the BFA's written submission that question of law 1 was not really independent but hinged upon a finding that the land was not being used in conformity with the Vesting Act: Applicant's outline of submissions, 25 August 2020, [102].
[15] See proposed order 3 of the orders sought in the further amended notice of appeal.
[16] Given that there were extensive grounds identified in respect of each question of law, many of which overlapped, these will be dealt with by way of further footnotes.
[17] See Transfer of Land Act 1958 (Vic) s 4 (definition of 'instrument').
[18] [2005] VCAT 2266 ('Gray').
[20] [2019] HCA 35; (2019) 93 ALJR 1106, cited in State of Victoria v Thompson (2019) 58 VR 583, 589 [27]-[28].
[21] Subdivision Act 1988 (Vic) s 4(1)(c): see e.g., ss 23, 24, 32.
[23] Transfer of Land Act 1958 (Vic) ss 45, 74.
[26] cf grounds 1(b) and 1(d) of the further amended notice of appeal.
[27] cf grounds 1(a) and 1(d) of the further amended notice of appeal.
[28] Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78, 84 ; Hall v Richards [1961] HCA 34; (1961) 108 CLR 84, 92; Avco Financial Services Ltd v Fishman [1993] VicRp 5; [1993] 1 VR 90, 94.
[29] cf grounds 1(c) and 1(e) of the further amended notice of appeal.
[30] cf ground 1(g) of the further amended notice of appeal.
[31] cf grounds 1(f) and 1(h) of the further amended notice of appeal.
[32] See grounds 6(a), 6(b) and 6(c) of the further amended notice of appeal.
[33] See ground 6(d) of the further amended notice of appeal.
[34] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39-40.
[35] cf ground 6(d)(i) of the further amended notice of appeal.
[36] cf ground 6(a) of the further amended notice of appeal.
[38] cf ground 6(d)(ii) of the further amended notice of appeal.
[39] cf ground 6(b) of the further amended notice of appeal.
[40] cf ground 6(c) of the further amended notice of appeal; and see Chang v Neill [2019] VSCA 151 [71]-[73]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [78].
[41] Although there was some variation in oral submission, counsel stated that the propositions were the same as those found in the BFA's written submissions: transcript of proceeding, 27 November 2020, 9.23-5.
[42] [2012] NSWCA 358; (2012) 84 NSWLR 219 ('Goomallee's Case').
[43] [1959] HCA 63; (1959) 102 CLR 54 ('Randwick').
[44] [1970] HCA 44; (1970) 123 CLR 574 ('Storey').
[45] Citing Australian Gas Light Co v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126, 138 (Jordan CJ), quoted in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450 [24].
[46] Citing Hoe v Manningham City Council [2011] VSC 543; (2011) 183 LGERA 441, 449 [25] ('Hoe').
[47] Citing Hazelwood Power Partnership v Latrobe City Council [2015] VSC 638, [47]-[60].
[49] The Tribunal reasons (n 4) [67].
[53] His Honour considered that the land had been dedicated/reserved from sale by the Crown for the purpose of public recreation (if that were necessary to find), but that it was open for the trial judge to find that the land had not been used for a public reserve.
[56] Goomallee's Case (n 42) 226 [26].
[59] (1979) 40 LGRA 419 ('Waverley').
[60] [1963] NSWR 1657 ('Cooma').
[62] Goomallee's Case (n 42) 227 [33] (emphasis added).
[63] [1952] 2 QB 55 ('Burnell').
[69] (1970) 19 LGRA 380 ('Brush Park').
[71] (1965) 11 LGRA 407 ('Royal Botanic Gardens').
[75] [1976] 1 NSWLR 607 ('Cole').
[78] See e.g., Randwick (n 43) 88-9; Goomallee's Case (n 42) 227 [33].
[81] Goomallee's Case (n 42) 226 [30].
[82] Storey (n 44); Application of Willoughby City Council (as manager of the Talus Reserve Trust) [2016] NSWSC 1717 ('Talus'); Attorney-General (NSW) v Warringah Shire Council [1972] 1 NSWLR 526.
[84] See e.g., Talus (n 82); Leahy v City of Camberwell [1973] VicRp 57; [1973] VR 589 ('Leahy').
[85] Waverley (n 59) 428; Burnell (n 63) 68; Royal Botanic Gardens (n 71) 410; Brush Park (n 69) 383.
[86] Cole (n 75) 614; Goomallee's Case (n 42) 227 [33].
[87] Goomallee's Case (n 42) 227 [33].
[88] Royal Botanic Gardens (n 71) 410; Hoe (n 46) 448-9 [23]-[25]; Burnell (n 63) 56, 67.
[93] Cooma (n 60) 1663, cited in Goomallee's Case (n 42) 226-7 [31].
[94] Royal Botanic Gardens (n 71) 410; Talus (n 82) [56].
[95] Royal Botanic Gardens (n 71) 410.
[97] Goomallee's Case (n 42) 227 [33].
[98] See eg, Cole (n 75) 613, where it was observed that the most effective way to conduct a country racecourse is to lease it to a local race club.
[99] cf ground 5(a) of the further amended notice of appeal.
[100] The Tribunal reasons (n 4) [60].
[102] cf grounds 5(e) and 5(f) of the further amended notice of appeal.
[103] cf grounds 2(i), 2(j), 3(g), 4(f), 4(g), 5(b), 5(c) and 5(d) of the further amended notice of appeal.
[104] cf ground 3(a) of the further amended notice of appeal.
[105] cf grounds 3(a), 3(c), 3(f) and 3(g) of the further amended notice of appeal.
[106] See eg, Sydney Municipal Council v Attorney-General for New South Wales and Milroy [1894] UKLawRpAC 36; [1894] AC 444, 455.
[108] Royal Botanic Gardens (n 71) 410.
[109] The Tribunal reasons (n 4) [65].
[111] cf grounds 3(b), 3(d) and 3(e) of the further amended notice of appeal.
[112] cf grounds 2(a), 2(b), 2(c), 2(d) and 2(k) of the further amended notice of appeal.
[113] cf ground 2(e) of the further amended notice of appeal.
[114] The Tribunal reasons (n 4) [64].
[116] cf ground 2(g) of the further amended notice of appeal.
[117] cf grounds 2(f) and 2(h) of the further amended notice of appeal.
[118] cf grounds 4(a), 4(b), 4(c), 4(h) and 4(i) of the further amended notice of appeal.
[119] The Tribunal reasons (n 4) [66].
[120] cf grounds 4(d) and 4(e) of the further amended notice of appeal.
[121] cf question of law 5 of the further amended notice of appeal.
Brighton Foreshore Association Inc
Bayside City Council [2021] VSC 26
(1959) 102 CLR 54
(1917) 23 CLR 78
(2019) 93 ALJR 1106
(2019) 58 VR 583
(1961) 108 CLR 84
(1986) 162 CLR 24
(2012) 84 NSWLR 219
(1970) 123 CLR 574
(2001) 202 CLR 439
(2011) 183 LGERA 441