Derring Lane Pty Ltd v Port Phillip City Council [1998] VSC 182

33. I make no comment on that finding. I am informed that the sole issue in the appeal for which leave is sought is said to be whether or not a motel is a "residential building" for the purposes of clause 7-1.4 of the planning scheme, so as to be exempt from the public open space requirement. That expression was considered by Byrne J in Port Phillip City Council v Domain Hill Properties Pty Ltd [1998] VSC 35, which was handed down on 14 August 1998, after the hearing of the application for review, but before the decision of VCAT, to which the Member referred, but on which he expressly made no comment.

36. Mr Peake, for the applicant, submitted that the purpose of the inclusion of the requirement for leave in section 148(1) of the VCAT Act was twofold. First, it was intended to ensure that unmeritorious and otherwise frivolous appeals did not proceed. Second, it enabled the regulation by the Court of appeals from interlocutory decisions, which had not been available under section 52(1) of the AAT Act, by virtue of such authorities as Milner v Prima Construction & Development Pty Ltd (1992) 75 LGRA 25 (and see Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80, a decision of the Full Court of the Federal Court on section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cwlth) which was in similar terms to section 52(1) of the AAT Act). He submitted that the effect of the definition of "order" of the Tribunal in section 3 of the VCAT Act as including "interim order of the Tribunal" meant that an appeal under section 148(1) from "an order of the Tribunal" enabled an appeal against an interim order. He submitted further that the right of appeal should not be confined to cases raising legal questions of general importance as would be required on an application for special leave to appeal to the High Court.

39. On this question, Mr Finanzio submitted that the word "order" in the VCAT Act had to be read in the context of the powers conferred on VCAT, in any given case, by the relevant enabling enactment, in this case section 80 of the Planning Act, which provides:

80. An applicant for a permit may apply to the Tribunal for review of any condition in a permit which the responsible authority has issued or decided to grant to the person.

He submitted, if I understood him correctly, that the provisions of section 85 of the Planning Act set out the only powers of VCAT on an application under section 80, and that those powers did not extend to the making of an interim order of the kind here sought to be appealed. However, there are provisions in the VCAT Act itself empowering the making of "orders", such as section 47 under which the Tribunal may order a statement of reasons to be given, section 49 under which the Tribunal may order the lodgement of copies of an additional statement, and section 50 under which the Tribunal may order a stay. There are others.

44. I accept the submissions of Mr Peake as to the requirement for leave, without, however, closing the door to other possible reasons for the enactment of that requirement.

47. Mr Peake submitted further that the finding of the Member was an "interim order of the Tribunal", and that as he had made that limited finding only, preliminary to a further hearing, it had been necessary for the applicant to appeal against that finding within the "28 days after the day of the order" provided for by section 148(2)(a) of the VCAT Act. This was the result of the extension of the right of appeal to include interim orders.

50. Finally, Mr Peake submitted that the Member had relied, in interpreting the expression "residential building" upon the mode of operation of the motel, rather than upon developmental considerations, and in the context this raised a question of law. Mr Finanzio submitted that the meaning of "residential building" was a question of fact to be decided by the expert tribunal, and referred to St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378 and the remarks of Young CJ at 379 and Crockett J at 390.

53. In all the circumstances of this case, I am satisfied that the applicant has established a prima facie case on appeal and accordingly leave to appeal will be granted. The matters raised by Mr Peake and referred to above will be more appropriately determined on the appeal itself than on this application. The matter will be relisted for directions.