Victorian Civil and Administrative Tribunal|2023-06-13|Before: Mr P

The applicant referred to the contents of Amendment C203 that, amongst other things, proposes to amend the DDO7 map to include delineation of the foreshore reserve boundary (for the most part being aligned with the western boundary of private land along the foreshore or coastal area).[34]
As at the date of these reasons, I do not consider Amendment C203 to be a seriously entertained amendment as it has only undergone public exhibition and has not progressed any further in the scheme amendment process. As a result, the future of the amendment generally and specifically the changes intended to DDO7 and DDO1 remain uncertain.
On 17 January 2023, Council filed with the Tribunal (and provided to the parties) extracts of historical planning scheme maps held by Council described as showing the location of the area included in the PPR Zone west of the subject land as 'Reserve for Public Open Space, prior to the introduction of the new format Kingston Planning Scheme on 22 December 1999. I note that extracts are incomplete and as a result, the value of any information that may be obtained from them is tenuous. Accordingly, I have not had any regard to the contents of these extracts for the purpose of answering Question 1.

APPENDIX A - APPLICANTS' HISTORY OF THE 'FORESHORE RESERVE'

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] See item 16 of the Application for review dated 6 April 2022 and paragraphs 2 and 3 of the Applicant's written submission dated 3 January 2023.

[3] See order 6 of the Tribunal's orders of 9 November 2022 (made with the consent of the parties).

[4] Kingston City Council Delegate Report - KP2020/259, 10 March 2022, at p.8 of 58.

[5] See amended application plans - Site Survey (Revision P13) dated 21 November 2022.

[6] See [59] and [60] of the applicants' written submissions of 3 January 2023.

[7] The applicants did not concede that the northern leg of Stephens Street and the carpark had in fact been removed from the permanent reservation gazetted in 1872.

[8] See paragraph 24 of the respondent's submission of 3 January 2023

[9] See [16] of the respondent's reply submission of 9 January 2023.

[11] See [19] of the respondent's reply submission of 9 January 2023.

[13] See p.168 of Part 2 of the Tribunal Book. Notations on page 2 include: Roads coloured brown. Street name amended in purple from Beach Street to Stephens Street vide Corr 47/302827. Assist. Reg. of Titles 1.10.1947.

[14] See p.676 of Part 2 of the Tribunal Book.

[15] See [107] of Council's written submission of 21 December 2022.

[16] See p.763 of Part 2 of the Tribunal Book.

[17] See p.524 of Part 1 of the Tribunal Book.

[18] See [93] and [110] of Council's written submission of 21 December 2022.

[19] See pp.971-972 of the Tribunal Book.

[20] See clause 2.02 - Environmental and Landscape Values (second dot point).

[21] See clause 2.03 -2 - Environmental and landscape values - Coastal areas (second dot point).

[22] See clause 02.03-1- Settlement - Urban Areas (fourth dot point).

[23] See clause 02.02-9 - Infrastructure - Community infrastructure.

[24] See clause 02.04 - Strategic framework plans.

[25] See clause 11.03-1L-04 - Carrum Neighbourhood Activity Centre - Foreshore Precinct Strategies.

[28] See clause 12.02-1S - Protection of the marine and coastal environment - Strategies (first strategy).

[29] See clause 12.02-1S - Protection of the marine and coastal environment - Strategies (second strategy).

[30] See clause 12.02-2S - Marine and coastal Crown land.

[31] See Council's register of public roads particularly at p.1526 of vol. 2 of the Tribunal Book.

[32] See s.9(2) and s.11 of the Crown Land (Reserves) Act 1978 for the limitations on the revocation of permanent reservations.

[33] See Brighton Foreshore Association Inc.

[34] Noting that under Amendment C203, it is intended that DDO7 and its corresponding map will be incorporated into an amended DDO1 and associated mapping.

Civil and Administrative Tribunal Act 1998

Crown Lands (Reserves) Act 1978

Environment Act 1987

Legislation Act 1984

Interpretation Act 1901

Land (Reserves) Act 1978

Conlan v Kingston CC [2023] VCAT 654 (13 June 2023)

The applicants referred to the Victorian Court of Appeal's consideration of the expression 'foreshore reserve' in Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284 (Brighton Foreshore Association) at paragraph 17 -

We take judicial notice of the fact that since the enactment of the Land Act of 1862, a substantial series of foreshore reserves has been created along Port Phillip Bay within what is now metropolitan Melbourne.5 These reserves are served at regular intervals by life saving clubs based within onsite buildings and by takeaway food or café facilities also contained within the reserves. Such uses have been regarded as generally uncontroversial aspects of the public use of the foreshore for over a century.

5 See the discussion of the statutory scheme in Randwick Corporation v Rutledge [1959] HCA 63; (1950) 102 CLR 54, 77-8 (Windeyer J) ('Randwick Corporation).

There is no dispute between the parties that there is no express definition in the planning scheme for the phrase 'foreshore reserve boundary' or the individual words 'foreshore', 'reserve' or 'boundary'. Further, neither is the composite phrase nor the individual words making up that phrase defined in either the P&E Act or the IoL Act.
To ascertain the ordinary meaning of a term, recourse to the dictionary definition of a word may be of assistance, however caution should be exercised to ensure that in resorting to dictionary definitions for the meaning of words one does not overlook that words and phrases take their meaning, including their 'ordinary meaning', from the context in which they appear. This approach is endorsed by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at 672 -

A further caution to the use of dictionary definitions was added by Leeming JA in Tai Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 at paragraph 80 -

The task is to construe the language of the statute, not the individual words: St George Bank v Federal Commissioner of Taxation [2009] FCAFC 62; (2009) 176 FCR 424 at [28]; see also XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 at [102]; R v Brown [1996] AC 543 at 561 quoted in Agfa-Gevaert at 397 and Metropolitan Gas Company v Federated Gas Employees' Industrial Union (1925) CLR 449 at 455.
The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision: Lorimer v Smail [1911] HCA 44; (1911) 12 CLR 504 at 508-510; R v Carter; Exp parte Kisch [1934] HCA 50; (1934) 52 CLR 221; Biga Nominees Pty Ltd v Federal Commissioner of Taxation (1991) 21 ATR 1459 at 1468-1469. Indeed, it is rare that resort to a dictionary will be of assistance in searching for the legal meaning of a provision in a statute: ; at .

The applicants submitted that if the answer to Question 1 is 'yes', the proposed setback along the western boundary is prohibited because the requirement in clause 2.0 of DDO7 that a permit must not be granted to construct a building within 4.5 metres from the foreshore reserve boundary operates as a mandatory provision.
The applicants submitted that the requirement in clause 43.02 that buildings and works must be constructed in accordance with any requirements in a schedule coupled with the requirement in clause 2.0 of DDO7 that a permit must not be granted to construct a building or construct or carry out works within 4.5 metres of the foreshore reserve boundary leads to the conclusion that the prohibitory nature of clause 2.0 is unmistakable.
The applicants contrasted the language of clause 2.0 of DDO7 with that of the clause considered by the Victorian Court of Appeal's decision in Shadda Abercrombie v Salter Architects [2018] VSCA 74 (Shadda) in support of their submission that clause 2.0 precludes the grant of a permit where a 4.5 metre setback from the foreshore reserve boundary cannot be achieved.

Council submitted that the setback requirement of clause 2.0 of DDO7 is discretionary relying on the following Tribunal decisions:
- Carrum Sailing Club Inc. v Kingston CC [2010] VCAT 755 (Carrum Sailing Club); and
- Li v Kingston CC [2014] VCAT 213 (Li).

Conlan v Kingston CC [2023] VCAT 654

At a glance

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Judgment (34 paragraphs)

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Legislation Cited (10)

Cases Cited (17)

Conlan v Kingston CC [2023] VCAT 654 (13 June 2023)