1. The initial position of the responsible authority was that condition 18 was a valid condition imposed for a valid planning purpose. If it was not for a planning purpose related to planning policy or to the planning merits of the proposal, it would be invalid as failing the tests for the validity of planning permit conditions. The responsible authority initially denied that this was a "personal permit" within the meaning of that expression in planning circles.
2. The responsible authority admits that the inspiration for the idea of this condition came, not from within itself or its planners, but from the local police or the local licensing police. The validity of such a condition is not dependent on who suggested it.
3. Its initial responsible authority position before me was that the condition was justified as a means of management control to ensure that it was known who was responsible for the premises and who should be contacted or who could speak in relation to the management if that was required by relevant authorities such as the responsible authority or the Liquor Licensing Authority.
4. The condition as framed is a very drastic one. It goes well beyond what would be required for that purpose. That purpose could be achieved by imposing a condition requiring that the name and photograph of the person or persons responsible for the management for the time being should be displayed in a particular place so that any inspector could ascertain who it was that he or she needed to find or contact.
5. The condition is a particularly drastic one, even if it were a personal permit condition in the ordinary sense. It makes no provision for changes, from time to time, in the management and operation of the premises, even with further consent. It requires a permit amendment to change the names in condition 18. In my opinion, that aspect is unnecessary, unreasonable, inconvenient and oppressive. The need to change from time to time can be anticipated. Indeed, it is inevitable if the years go on long enough, having regard to the mortality of human beings.
6. I would not impose condition 18 whether it is for identification purposes, or for the more normal "personal permit" justification. However, what I would do on the merits is not necessarily the test of the validity of the condition. If it is within power, and the responsible authority chose to impose it, it will be valid even if I or others might impose it in a different form. I note that this is subject to the qualification of so called "Wednesbury unreasonableness" as propounded in associated Provincial Picture Houses Ltd v Wednesbury Corporation[8]. If a condition is so unreasonable that no responsible authority, properly instructing itself and acting for relevant purposes, could have come to the conclusion that it should be imposed, then such a condition is taken to being imposed on the basis of an error of law (whether or not identified) and to be beyond power.
7. Although the responsible authority initially denied that this was a personal permit condition and said that its purpose was for identifying management, I also think it is correct to say that it wavered from that position in the course of the hearing. In any event, it is not easy to be certain as to the motivation of the inclusion of the condition, unless stated at the time. I think I need to assess the validity of the condition on the basis of its terms, rather than current suppositions as to the motivation for it.
8. The idea of a permit being granted subject to a condition requiring operation by a particular person or persons is an idea that has had currency in Victorian planning for several decades. A number of authorities in relation to this topic were referred to in the course of the hearing. I do not think that there was really disagreement in relation to the principles involved. I do not think it is necessary to discuss the authorities for the purposes of these reasons. I will content myself with a statement of the principles upon which I have proceeded.
9. The general and normal position is that a condition tying a permit to a particular person is beyond power and invalid. However, there are a number of authorities, including Supreme Court decisions, indicating that personal permit conditions can be valid in certain exceptional circumstances. There is sufficient authority for this proposition so that it must be accepted unless and until it is overruled by legislation or superior authority.
10. These exceptional circumstances are where, but for the special skills and characteristics of the person nominated, the permit sought would be refused. The example most frequently mentioned is in relation to dog boarding kennels within sufficient proximity of dwellings on other land that the barking of dogs would be intrusive and cause noise nuisances. Boarding kennels are more likely to generate barking than other forms of dog keeping in that the boarded animals are likely to be in unfamiliar circumstances and for relatively short periods of time. Also, one dog barking may set off the barking of others. In those circumstances, a person with a particular facility for handling dogs and for keeping them calm and quiet might obtain a permit for dog kennels, with a personal condition, where the permit might otherwise be refused.
11. Dog boarding kennels might be a convenient example, but the occasion for personal permits is not necessarily limited to that particular use. Other uses calling for special skills might also qualify.
12. Although some authorities indicate that the imposition of a personal permit condition would be beyond power and invalid in circumstances lying outside the restricted exception; nevertheless there can be a question of fact and degree involved in determining whether a particular proposed use in particular proposed circumstances comes within the exception so as to be valid.
13. Many uses call for some degree of personal expertise, skill, qualifications or attributes. A use involving contact with the public, and depending on public patronage, might succeed handsomely in the hands of a person with person charm and appeal, whilst the same business in the same place might fail when taken over by another person, equally as skilled and worthy, but who lacks that degree of personal charm and appeal.
14. The touchstone, however, is not whether the business succeeds, but rather whether it will create nuisances if conducted by someone lacking the personal aptitude to prevent the nuisance.
15. It is not a matter of one person having such attributes, and another not. Such things can be seen as varying on a continuum between highly suitable and highly unsuitable. Furthermore, particular uses can also be seen as being on a continuum between where the aptitude is highly important or moderately important, mildly important or unimportant.
16. The conduct of licensed premises as a nightclub may be an example where management is of some importance. That importance might vary with circumstances including location, proximity to sensitive land uses, the style of the place and entertainment provided, the cost of entry and the target group from whom patronage is sought.
17. If management attributes were to be important, the responsible authority might be expected to have some means of ascertaining whether a particular person possesses the attributes required. A responsible authority and its planning officers might not have the knowledge and experience to make such a judgement. They might need to rely on other information. In the present case, this responsible authority did not even notice that managers had changed until something brought the matter to its attention. Having become aware of it, the responsible authority has seized upon condition 18, but not because it is dissatisfied with the current or proposed managers. Rather, it is for the ulterior motive, so far as the purposes of condition 18 are concerned, of claiming that the permit has expired so as to gain a tactical advantage in relation to the question of sexually explicit entertainment. It is willing to grant a new permit in the same terms as the 1995 permit but naming the currently proposed manager, except that it wants to impose a condition about sexually explicit entertainment.
18. I am aware that a personal permit condition will normally be invalid, but in some circumstances can be valid. The test of validity is not whether I would have imposed such a condition, or imposed a condition in these particular terms, if the power to impose it was open to the responsible authority. On the other hand, the permit condition is invalid if it does not come within the exception that allows personal permit conditions. What is the position in this instance?
19. Whilst I agree that some degree of management skill is called for in relation to a nightclub, and that in some circumstances the use can give rise to nuisances, I have come to the conclusion that this is not, and was not at the time of the grant of the 1995 permit, a circumstance that would justify and require a personal permit condition (much less one in the stringent terms of condition 18). So far as my memory serves on the point, I do not think that such conditions are normally imposed in relation to land uses involving liquor and entertainment, even in much more sensitive circumstances than this site located in an industrial zone. I think that my knowledge and experience is such that I would be aware of it if the contrary were true. Whilst there is room for argument, and maybe room for differing views, I have come to the conclusion that this condition was not only unjustified on its merits, but was also outside the personal permit exception so that the condition was beyond power and invalid at the time it was imposed.

What is the affect of the Personal Permit condition being invalid?

1. There is more than one way in which an impugned condition can be removed from a permit. Section 87 PE Act has provided a means since the inception of that Act for the cancellation or amendment of permit, provided one of the grounds in s 87 (1) is established. If a permit is cancelled, it ceases to exist from that time. If an invalid permit condition is included in a permit, that could be regarded as a mistake in relation to the grant of a permit thus providing grounds for the deletion of the condition, or, perhaps, cancellation of the permit, depending on circumstances. Again, the permit would cease to contain the condition when that power was exercised.
2. There is a further aspect in relation to an invalid permit or an invalid condition in an otherwise valid permit. If something has been invalid from its beginning, it has been ineffective from its beginning. It may not be true that the purported existence of an invalid permit or an invalid condition is bereft of all legal consequences if it has subsisted for a time. Nevertheless, that which is invalid cannot become lawful by passage of time.
3. It was argued before me that an appeal to the Administrative Appeals Tribunal could have been brought within 60 days of the issue of the permit. Section 80 PE Act provided an appeal (now a review) against a condition in a permit. It can be said that the permit applicant, if dissatisfied, should have exercised that right and that it is too late now, years later, to exercise that right. That is true. The time for appeal has passed and it is unlikely that the time would or could now be abridged or extended. However, that is in relation to an appeal, or review.
4. It was also argued that a declaration is an equitable remedy, and that the original applicant had an adequate remedy by means of appeal. In these circumstances, it was argued for the responsible authority, that a declaration as to the invalidity of s 18 should be denied on discretionary grounds.
5. I do not think that this approach would necessarily meet the situation in this case. If, as I have found, the condition was invalid from the start, it cannot gain validity by the passage of time, and neither can it gain validity by the failure to appeal within the time limited for appeal. If it was invalid, it continues to be invalid today. If that is the situation, then it may be better to say so and have that situation recognised so that everyone knows where they stand. The balance of convenience is in favour of clarifying the point, even if there are grounds upon which there could be a discretionary refusal to grant a declaration.
6. If no declaration was made, and the company might continue to operate in purported reliance on the 1995 permit. It would presumably continue to carry on the use (with or without sexually explicit entertainment) unless and until some enforcement action was taken against it. Whatever proceedings were commenced, whether a prosecution, or an application for an enforcement order, injunction or declaration; the company could always raise as a defence that condition 18 is and always was invalid. If successful that defence would protect the company from the action taken against it. By making this application for a declaration, it has sought to clarify the question at this stage. I think it is useful to everyone to have it so clarified.
7. The effect of condition 18 being invalid is that it was never a legally effective part of the permit. On that basis, management did not have to be in the hands of the original nominees, or any succeeding nominees and, furthermore, the ineffective condition could not cause expiry of the permit. It will be recalled that I have already said that I consider that imposing the result of expiry was excessive and unreasonable, but now I am saying that it was invalid and ineffective. The result is that the effective operation of the 1995 permit has not been terminated by operation of condition 18.
8. If an appeal or review under s 80 PE Act is successful in relation to a permit the tribunal has power under s 85 (1)(e) to direct that the permit must not contain that condition. Section 85 (1)(g) provides that the tribunal can cancel a permit if it upholds the review of the condition on the ground that the responsible authority had no power to impose the condition and it considers that the permit should not or would not have been granted without the condition. That is in relation to the cancellation of a permit rather than determining that a permit or a condition in a permit is invalid. I suppose the equivalent would be, if I determined that the condition was invalid, I might also determine that the permit, without it, is also invalid, if the condition was vital to the life of the permit.
9. That situation does not arise here. I consider that the imposition of the condition I have found to be invalid to be inappropriate and unnecessary to the permit so that it should have been granted, if otherwise in accordance with the planning merits, without that condition. In other words, I do not think that the invalidity of the condition involves the invalidity of the permit. I think the permit continues, but without the condition, and on the basis that the condition was never there.
10. If I were considering the analogous situation under s 85 (1)(g) I would conclude similarly that the permit would have been, or at least should have been, granted without the condition.
11. None of this means that authorities like the responsible authority or the licensing authorities are or should be bereft of means of maintaining some surveillance and control over the conduct of premises. This can be done by the imposition of conditions to prevent nuisances or undesirable things taking place, and by the enforcement of such conditions if necessary. All permits containing conditions are granted on the basis that the conditions will be observed or, if necessary, enforced. If other enforcement procedures prove ineffective, ultimately (so far as planning is concerned) an application might be made for cancellation of the permit. The tribunal may be cautious about going directly to cancellation where no other means of enforcement have been undertaken, but ultimately, and in some circumstances, that can be the appropriate solution, (see City of Springvale v Kydas[9] and Cull v Stonnington CC[10] and the discussion and cases cited at paragraph [10,035.25 of "Planning and Environment Victoria" published by Butterworths, Law Publishers).

1. The second proceeding before me is a review of the refusal of the responsible authority to amend the 1995 permit by the deletion of condition 18. Deletion is sought on the basis that the condition is invalid. As already stated, I consider this to be correct.
2. Of course, if the view of the responsible authority had been upheld that condition 18 was valid and had caused the expiry of the permit, then the permit would not exist and could not now be amended. However, having found to the contrary, I find that the permit survives and an amendment to deletion condition 18 is appropriate.
3. By doing this I find that I have resolved the real issue in this case. In those circumstances, it will not be necessary to make a declaration. The deletion of condition 18 will be a sufficient remedy and will clarify the situation.

Does the declaration application exceed the jurisdiction granted by s 149A of the Planning and Environment Act 1987?

1. I understood that it was suggested that the declaration application, and the declarations sought, exceed the power to make declarations granted to the tribunal in s 149A PE Act under which the application is made. In the circumstances, I will not need to determine this point.
2. In any event, I note that s 124 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) gives the tribunal power to make a declaration instead of any order that it could make or in addition to any order it makes in a proceeding. This power can only be exercised by a presidential member or a member of the tribunal who is a legal practitioner. I satisfy the second alternative.
3. Unlike s 149A and 149B PE Act, I do not consider that s 124 VCAT Act authorised an application for a declaration. It merely provides that a declaration is an alternative or additional remedy that can be granted in relation to proceedings brought before the tribunal under some other provision. I think this would have to be a genuine and valid proceeding, and not a nullity invoked for the purpose of seeking a declaration, but I do not think that applies here. I suspect that s 124 would have overcome a point in relation to the extent of power granted by s 149A.
4. Under the circumstances, I do not think that it is necessary for me to determine whether the 1984 permit continues as a valid planning consent in relation to the use of the land. I have already said that I do not consider that the conversion of "restaurant/cabaret" to bar permit means a termination or abandonment of use under the 1984 permit. Purported use under that permit certainly continued for a considerable time and I think that the land use, like that in the 1995 permit, boils down to use of the land for a place of assembly, namely a nightclub. It appears that the parties, the company and the responsible authority may have lost track of keeping up extensions when the short term life of the permit was extended several times lacking sufficient clear evidence. I prefer not to make a finding on that point or a declaration in relation to it.

1. If the 1984 permit and the 1995 permit had both ceased to be effective planning permissions, the company would have sought to rely on existing use rights under cl 63 of the planning scheme. As it is, it still has the 1995 permit (at least) and does not need to rely on existing use rights.
2. I have already made some comments about the fire not affecting the situation.
3. The company would have been relying on the so called 15 year rule whereby a use, even if commenced illegally, acquires existing use rights if it is carried on (subject to certain exceptions) for a period of 15 years. As I have said, I think the use from 1984, at least as indicated by the planning history, has been as a nightclub including entertainment. I do not consider that the nature of this use or the existing use right where it exists is altered or cancelled by whether or not the entertainment provided in the nightclub includes sexually explicit entertainment.
4. If the responsible authority considers that a condition prohibiting sexually explicit entertainment is justified, or would be justified in relation to a new permit, it can consider whether it should make an application under s 87 PE Act for an amendment to include such a condition. It would, of course, have to satisfy one of the grounds under s 87 (1).
5. In the circumstances, it is not necessary or desirable to make a declaration in relation to existing use rights.

1. The application to review the refusal of the responsible authority to amend the permit and the permit amendment is granted to delete condition 18. No declarations are made.

[2] Apart from two exceptions that are not relevant for present purposes.

[3] The dictionary also provides a third definition but it notes it as Rural Obsolesent so I have not included it here.

[4] Sometimes known as the Day 2 planning schemes.

[5] This date is sometimes also referred to as "Day one".

[6] See previous wording in paragraph 24 above.

[7] [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139

[8] [1947] EWCA Civ 1; [1948] 1 KB 223

[9] [1990] 4 AATR 317

[10] (2003) 13 VPR 329 at [6] and [7] page 330