Plaintiff v Defendant

Supreme Court of Victoria|2013-04-22|Before: KYROU J

Manningham City Council v Hoe (Unreported, Victorian Civil and Administrative Tribunal, Senior Member Wright, 16 August 2012)

ADMINISTRATIVE LAW - Judicial review of a decision of the Victorian Civil and Administrative Tribunal - Hearing rule of natural justice - Rule breached - Tribunal decided case on a ground introduced by it at the hearing without prior notice or adequate explanation to the plaintiff - Discretion to refuse relief where the breach did not affect the outcome of proceeding.

ADMINISTRATIVE LAW - Jurisdictional error - lack of a jurisdictional nexus between Tribunal's findings and its order.

TOWN PLANNING - Enforcement order for using land without a permit for a purpose requiring a permit - Necessity of a nexus between the breach of the planning scheme and the order made to address the breach.

PRACTICE AND PROCEDURE - Discretion to refuse relief in judicial review proceeding where applicant did not resort to statutory appeal.

SELF-REPRESENTED LITIGANT - Scope of the hearing rule in its application to such a litigant - Relevance of litigant's status to the exercise of the discretion to refuse relief in a judicial review proceeding.

1 Alex Hoe is a car enthusiast. For the past five or six years, he has kept 8 to 10 motor vehicles in the open spaces of his home in Lower Templestowe. Since 2010, in response to complaints, the Manningham City Council ('Council') has pursued a legal strategy to force Mr Hoe to reduce the number of vehicles kept at his home to a maximum of four.

2 The Council's most recent step was an application to the Victorian Civil and Administrative Tribunal ('VCAT') under s 114 of the Planning and Environment Act 1987 ('Act') for an enforcement order. On 16 August 2012, Senior Member Wright of the VCAT made the following enforcement order ('Enforcement Order'):

The use which contravenes the Manningham Planning Scheme is the keeping of between 8 and 10 motor vehicles on land at No. 36 Ardgower Court, Lower Templestowe, being a use which is additional and separate to the use of the land as a dwelling and therefore comprehended by section 2 of the Table of Uses in clause 32.06 of the planning scheme, without a planning permit.

The Respondent Alex Hoe must on or before 13 September 2012 reduce the number of motor vehicles kept on the land at 36 Ardgower Court, Lower Templestowe, at any one time to no more than four.
The Applicant must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.[1]

3 Mr Hoe has commenced this proceeding under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules') to quash the Enforcement Order.

4 Mr Hoe, who is not a lawyer, represented himself in this proceeding. He also represented himself in the other proceedings involving the Council to which reference is made below. The VCAT did not appear at the hearing of this proceeding in accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[2]

5 For the reasons that follow, the provision of the Enforcement Order that required Mr Hoe to reduce the number of vehicles kept on his land at any one time to no more than four ('para 1 of the Enforcement Order') will be set aside. This is because, in the absence of a finding by the VCAT that the presence of more than four motor vehicles on Mr Hoe's land is not incidental to the use of the land as a dwelling, the VCAT did not have jurisdiction to make para 1 of the Enforcement Order.

Relevant provisions of the Planning and Environment Act

6 Sections 114, 117 and 119 of the Act relevantly provide:

(1) A responsible authority ... may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

(3) An enforcement order may be made against one or more of the following persons -

(a) the owner of the land ...

Determination of Tribunal where objections are received

(1) If the Tribunal receives an objection to the application ... the Tribunal must give the following persons a reasonable opportunity to be heard or to make written submissions in respect of the application -

(a) the responsible authority;

(b) any person against whom the enforcement order is sought;

(c) the owner of the land ...

(2) After hearing any person under subsection (1) and considering any written submissions made under that subsection, the Tribunal may -

(a) make any enforcement order it thinks fit in accordance with section 119 in respect of the land; or

(b) reject the application.

An enforcement order made by the Tribunal -

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do any one or more of the following -

(i) to stop the use or development within a specified period; or

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority...; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

7 Section 133(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') provides that a person who does not comply with an order of the VCAT is guilty of an offence and can be imprisoned for up to three months or fined up to $7,042 or both.

Relevant provisions of the Manningham Planning Scheme

8 Clause 32.06-1 of the Manningham Planning Scheme ('Scheme') sets out a table of uses ('Table of Uses') that applies to land in a Residential 3 Zone. It was not in dispute that the Table of Uses applied to Mr Hoe's land.

9 Clause 31.01 of the Scheme provides that the uses set out in s 1 of the Table of Uses do not require a permit. For present purposes, the only relevant use in s 1 is 'Dwelling (other than Bed and breakfast)'.

10 Clause 31.03 of the Scheme provides that the uses set out in s 3 of the Table of Uses are prohibited. None of the uses in s 3 are presently relevant.

11 Clause 31.02 of the Scheme provides that the uses set out in s 2 of the Table of Uses require a permit, that any condition opposite a use must be met, and that, if a condition is not met, the use is prohibited. The only relevant uses in s 2 are the following:

Must be used in conjunction with another use in Section 1 or 2.

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

12 Clause 74 of the Scheme sets out the following relevant definitions:

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

13 Clause 64.01 of the Scheme provides that, if land is used for more than one use and one is not ancillary to the other, each use must comply with the Scheme.

Land used in conjunction with another use

If a provision of this scheme provides that a use of land must be used 'in conjunction with' another use of the land:

there must be an essential association between the two uses; and
the use must have a genuine, close and continuing functional relationship in its operation with the other use.

15 Insofar as they are relevant to this proceeding, the facts are not in dispute.

16 Mr Hoe's land is an ordinary suburban block of approximately 766 square metres.

17 Some of the 8 to 10 motor vehicles that have been parked on a semi-permanent basis on Mr Hoe's land are registered while others are not registered. The unregistered vehicles include rally and performance cars, some of which Mr Hoe uses from time to time with a special permit. All the vehicles are parked in paved areas of his home. There is no garage on Mr Hoe's land.

18 Mr Hoe has not engaged in any business activities on his land in relation to the motor vehicles, such as trading in the vehicles or repairing the vehicles. He has kept them there as part of his hobby as a car enthusiast.

19 Pursuant to its strategy to force Mr Hoe to reduce the number of vehicles parked on his land to four, in 2010 the Council applied to the VCAT for a declaration under s 149A of the Act. The purpose of the application was to determine whether the keeping of 8 to 10 vehicles by Mr Hoe was ancillary to the use of his land as a dwelling or whether it constituted an additional and separate use.

20 The application was heard by Dwyer DP of the VCAT on 25 June 2010 ('2010 VCAT hearing'). On 29 June 2010, Dwyer DP decided that the keeping of 8 to 10 vehicles on Mr Hoe's land on a semi-permanent basis constituted a separate use of the land as a 'store' in addition to the primary use of the land as a 'dwelling' and that the separate use required a planning permit. Dwyer DP declined to declare what number of vehicles would constitute a use of the land that would be incidental to its primary use as a dwelling. However, Dwyer DP stated that 'the storage of 2 or 3 or 4 vehicles might well be considered ancillary.'[3]

21 On 29 June 2010, Dwyer DP made the following declaration ('VCAT declaration'):

For the purposes of s 149A of the Planning and Environment Act 1987, I declare that the semi-permanent parking of between 8 and 10 vehicles (of which only three are registered vehicles) on the land at 36 Ardgower Court, Lower Templestowe is not ancillary to the use of that land as a dwelling, but constitutes an additional and separate use of the land as a 'store' (as that term is defined in the Manningham Planning Scheme).[4]

22 On 29 November 2010, the Council applied to the VCAT for an enforcement order on the basis that Mr Hoe's land was being used for the additional use as a store without a planning permit, contrary to the Scheme. The application set out the following proposed orders:

The land at 36 Ardgower Court, Templestowe (Land) was used as a store in contravention of clause 32.06-1 of the Manningham Planning Scheme.
Within 28 days of the date of this order the Respondent must cease using the Land for the purpose of a store by reducing the number of vehicles kept on the Land to a maximum of 4.
The Respondent must pay the costs of Council for bringing this proceeding.

23 On 22 February 2011, Mr Hoe obtained leave from this Court to appeal against the VCAT declaration.[5] On 25 October 2011, Osborn J partially allowed Mr Hoe's appeal on the basis that the VCAT had decided that the separate use constituted a store without first considering a relevant consideration, namely, whether the use could be characterised as a car park.[6] His Honour ordered that the VCAT declaration be amended to read as follows ('Modified declaration'):

For the purposes of s 149A of the Planning and Environment Act 1987, I declare that the semi-permanent parking of between 8 and 10 vehicles (of which only three are registered vehicles) on the land at 36 Ardgower Court, Lower Templestowe is not ancillary to the use of that land as a dwelling, but constitutes an additional and separate use of the land.[7]

24 On 24 February 2012, Gibson DP of the VCAT gave leave to the Council to withdraw the application dated 29 November 2010 on the basis that it was filed prior to the Court's final decision on whether Mr Hoe should be granted leave to appeal against the VCAT declaration.[8]

25 On the same day, the Council wrote to Mr Hoe and asserted that, irrespective of whether his additional use of his land was characterised as a store or a car park, the use required a planning permit. The letter requested that Mr Hoe apply for a permit or else reduce the number of vehicles on his land to four.

26 On 13 March 2012, the Council made a further application to the VCAT for an enforcement order. The application alleged that the land was being used for the additional use as a store or as a car park without a planning permit, contrary to the Scheme. The application set out the following proposed orders:

The land at 36 Ardgower Court, Templestowe Lower (Land) is being used as a store, without a permit, in contravention of clause 32.06-1 of the Manningham Planning Scheme.
In the alternative, the land at 36 Ardgower Court, Templestowe Lower is being used as a car park, without a permit, in contravention of clause 32.06-1 of the Manningham Planning Scheme.
Within 28 days of the date of this Order, the respondent must cease using the Land for the purposes of a store.
In the alternative, within 28 days of the date of this Order, the respondent must cease using the Land for the purposes of a car park.
The respondent must pay the responsible authority's costs for bringing this proceeding.

27 The Council's application dated 13 March 2012 was heard by Senior Member Wright of the VCAT on 10 August 2012 ('2012 VCAT hearing'). Although the Council's application was made on the basis that the additional use was either as a store or as a car park, during the opening address of the Council's legal representative (Ms Walsh), the Senior Member introduced the possibility that the use might fall within the following category in s 2 of the Scheme: 'Any other use not in Section 1 or 3'. The Senior Member described that use as an 'innominate use'. It is clear that Mr Hoe did not understand the phrase 'innominate use', as he asked for it to be explained.

28 The transcript of the 2012 VCAT hearing contains the following discussion by the Senior Member, Ms Walsh and Mr Hoe about the phrase 'innominate use':

Senior Member: So the declaration would then read, 'Is not ancillary to the use of that land as a dwelling but constitutes an additional and separate use of land.'

Ms Walsh: Full stop.

Senior Member: Right, which could be a car park, it could be, alternatively, an innominate use.

Ms Walsh: It could.

Senior Member: Yes. All right, thank you.

Ms Walsh: And so, Mr Chairman, there was an application for an enforcement order that was lodged during the appeal period. It was stayed. All I want to say about this is that what is before the Tribunal today is a fresh Application.

Senior Member: Yes.

Ms Walsh: And that that previous Enforcement Order has been withdrawn, no Order as to costs.

Mr Hoe: Sorry, can you explain to me what is an innominate use?

Senior Member: An innominate use, Mr Hoe, is a use which is not specifically set out in the table of uses in the zone. I don't have a copy of the planning scheme to hand - -

Ms Walsh: There are certificates.

Senior Member: Do you have that?

Ms Walsh: Yes, Mr Hoe has the certificates as well that have been served later - -

Senor Member: This is the table of uses?

Ms Walsh: Yes.

Senior Member: Perhaps if you look at - - oh, you have the table of uses?

Ms Walsh: Yes.

Senior Member: If you look at Section 2 and you go over to the next page, and you'll see the end of Section 2 says, 'Any other use, not in Section 1 or 3'.

Mr Hoe: Mm, mm.

Senior Member: So, that means that any land use which is not specifically identified in Section 2 is sort of caught up by that expression, and they're called innominate uses, namely, uses which are not named. Does that answer your question?

Mr Hoe: Yes.[9]

29 During Mr Hoe's cross-examination of a Council officer, Mr van Oosterwijck, the following exchange took place:

Mr Hoe: Have you been investigating or have you found any evidence that the contravened use of the land is that of a car park, in terms of planning?

Mr van Oosterwijck: Well, it depends what a car park is defined as, and I don't believe it is a car park because they have been stored on the land. The cars have not moved in a long time, which you can see in aerial photographs. I believe it's a store. However, the Tribunal might see it as a car park. I've investigated it as a store, and we're here today to really work out what it actually is, whether it's a car park, a store, or an innominate use - -

Mr Hoe: So can I - - ?

Senior Member: Mr Hoe - -

Mr Hoe: Sorry - -

Senior Member: The witness can only give evidence as to the facts, what he has seen.

Mr Hoe: Yes, sir.

Senior Member: So, he could give that evidence on such and such a day he saw so many cars situated on the land.

Mr Hoe: Yes, sir - -

Senior Member: The conclusion as to whether that constitutes a store or a car park or some other use is a matter for the Tribunal in relation to which this gentleman's evidence is of no assistance to the Tribunal.

Mr Hoe: Your Honour, the purpose of what I was seeking, whether he is - -

Senior Member: It is open to you, of course, to argue that on the facts that are before the Tribunal, namely, this witness's observation on various dates as to how many cars are located on the land, constitutes one or other, or some other use. Do you follow that?

Mr Hoe: Yes, I do. So is it safe for me to conclude that your investigations done on my property was not a contravene use of a car park and the evidence that you are submitting in your affidavit or photographs are of the contravened use of a store?

Mr van Oosterwijck: I think the - - the purpose of our inspections has been to determine how many cars are on the property, and that is the evidence that I am presenting here today. It's not to prove that one - -

Mr Hoe: Sorry, what's the purpose of your investigation?

Mr van Oosterwijck: Well, to determine how many cars are on the property and how the property is being used. Now it's to gain evidence so that a determination can - - well, we first saw the 149 determination to find out whether it is a store, and now we're here today looking at it, whether it's a store, a car park, or an innominate use. My inspections are to just observe what there is and bring that evidence to the Tribunal.[10]

30 At the conclusion of final addresses, the following exchange took place:

Senior Member: Ms Walsh, does the council have a position in relation to keeping four cars on the property?

Ms Walsh: Yes, that it would consider that that would be ancillary to the use of the land as a dwelling and that typically it is for hobbies, sports, rally cars.

Senior Member: What would you say to the proposition that it's not really relevant to these provisions as to how you characterise the use of land, whether it be shed, whether it be a car park or whether it be an innominate purpose, because the critical thing is however you describe the use, it's one that requires a permit.

Ms Walsh: Mm, mm.

Senior Member: And there is no permit.

Ms Walsh: Yes. I'm just thinking it through. I think - - I might just seek some instructions for the moment. Sorry, Mr Chairman.

Senior Member: That's all right.

Ms Walsh: I am just trying to think it through. I think if what you're saying is that if an enforcement order - maybe if you could repeat what you said, before I - -

Senior Member: Well, I'm not sure that the question of land-use characterisation is really central to the case.

Ms Walsh: Mm, mm.

Senior Member: What is central to the case is whether or not a permit is required and - -

Ms Walsh: Yes - -

Senior Member: The declaration having been made that the current usage goes beyond what would constitute a normal ancillary use - -

Ms Walsh: Yes - -

Senior Member: Or use that's ancillary to the dominant residential use, but what follows is that to legitimise the situation you would require a permit. Now, that may depend on how you characterise things. If it's a [shed], then you've got the problem of, you know, the cars not being kept in the dwelling, I think the words are. If it's a car park, you've got the problem as to whether it's an ancillary to a Section 1 or a Section 2 use. That's not a problem, I suppose. But, the third alternative is that it's an innominate purpose, namely, the keeping of vehicles on the land which goes beyond what would be normally ancillary to domestic usage. All three of them require a permit, and the fact is that a permit hasn't been obtained. So, that's just running through my mind.

Ms Walsh: What I am concerned about is that because the declaration was so specific, 8 to 10 vehicles - -

Senior Member: Yes - -

Ms Walsh: That, you know - - and there is evidence that there are sometimes five and there are sometimes six vehicles, I think the characterisation issue in how you just put it, is correct that it's not really relevant, but what is relevant is that the Tribunal makes a determination of, well, how many cars is ancillary.

Senior Member: I see, yes.

Ms Walsh: So, I think that just - - I think that we wouldn't be any further in resolving this matter if it was just a - -

Senior Member: If it were to say it would be helpful, yes.

Ms Walsh: Mm, mm.

Senior Member: I understand. All right. Well, thank you for that. Now, Mr Hoe, I've got one question for you: the Council has asked, in addition for an Enforcement Order it's asked you to pay the costs of the proceedings. What do you say about that?

Mr Hoe: I dispute it. ...[11]

31 During the hearing, Mr Hoe acknowledged that in the past five or six years, he has kept 8 to 10 vehicles on his land, some of which were registered and some of which were unregistered. He also acknowledged that the facts were the same as they were at the time of the 2010 VCAT hearing.

32 The VCAT's Reasons for making the Enforcement Order were relevantly as follows:

It was common ground before me that the relevant facts at the date of the hearing do not differ in any material respect from the facts which formed the basis of the Tribunal's declaration. It follows that the declaration, as amended by direction of the Court, remains in force today. In consequence the keeping of between 8 and 10 motor vehicles on the land is not ancillary to the use of the land as a dwelling but constitutes an additional and separate use of the land.

In my view the precise characterisation of the additional and separate land use is not necessary for present purposes. What is relevant is that it cannot possibly be a use specified in section 1 of the table of uses contained in clause 32.06-1 of the planning scheme, which sets out the planning controls applicable in the Residential 3 zone, being the zone in which the subject land is located. Similarly, the additional and separate use cannot answer the description of any of the uses listed in section 3, being uses which are prohibited in the zone.
It follows that the separate and additional use must be a section 2 use, either specified or innominate. The critical factor in this case is that any use in section 2 requires a planning permit, and no permit has issued in relation to the subject land. This means that the separate and additional use is in breach of the planning scheme, and this is sufficient to found an enforcement order.
The Council has expressed the view that keeping up to four cars on the subject land could be regarded as ancillary to the use of the subject land for a dwelling, which is a section 1 use permitted as of right.
The Council is the statutory authority responsible for the administration and enforcement of the Manningham Planning Scheme, and without forming a concluded view on the question of land use characterisation, and in particular what may be regarded as incidental or ancillary to the use of the land for a dwelling, I am not inclined to second guess the Council.
I propose to make an order under section 119 of the Planning and Environment Act 1987 which specifies that the keeping of between 8 and 10 motor vehicles on the land at No. 36 Ardgower Court, Lower Templestowe, contravenes the Manningham Planning Scheme, and directs the respondent Alex Hoe within 28 days of this date to reduce the number of motor vehicles kept on the land at ay one time to no more than four.[12]

33 After considering written submissions from the parties in relation to costs, the VCAT ordered Mr Hoe to pay to the Council costs fixed in the amount of $7,000.

34 Mr Hoe's originating motion set out nine grounds of review, which are repetitive and unclear. The grounds were amplified and, to a certain extent, clarified by Mr Hoe's affidavits and written and oral submissions. Mr Hoe gave notice of a tenth ground of review in a document headed 'Outline of Submissions' and dated 25 October 2012. The amplified and clarified grounds can be summarised as follows:

(a) The VCAT breached the hearing and bias rules of natural justice by introducing the notion of an innominate use on its own initiative at the 2012 VCAT hearing, in circumstances where the Council had neither referred to nor relied upon an innominate use at any time between 2010 and the commencement of the hearing.

(b) The VCAT's decision was unreasonable in the Wednesbury[13] sense, that is, the decision was so unreasonable that no reasonable tribunal could have made it.

(c) The VCAT erred in law by failing to characterise the purpose for which Mr Hoe's land was being used and by failing to make a finding of fact on whether the keeping of five, six or seven vehicles on the land constituted an ancillary use.[14]

(d) The VCAT breached the hearing rule of natural justice by ordering Mr Hoe to pay the Council's costs in circumstances where the proceeding involved questions relating to uses of his land, namely as a store or as a car park, which were ultimately not adopted by the VCAT.

(e) The VCAT's findings infringed the principles of res judicata and issue estoppel.

35 It was common ground that, in considering the Council's application for an enforcement order, the VCAT was bound by the rules of natural justice.[15]

36 Although Mr Hoe made lengthy written and oral submissions on the issue of natural justice, his contention was very simple. According to Mr Hoe, the Council's application to the VCAT was based on the premise that his separate use of his land constituted either a store or a car park, that this was the case that he had prepared to meet at the 2012 VCAT hearing and that he was taken by surprise and was unprepared to meet the alternative case that was introduced by the VCAT itself based on an innominate use.

37 The Council's submission was equally straightforward. According to the Council, although the concept of an innominate use was introduced for the first time at the 2012 VCAT hearing, the VCAT explained the concept to Mr Hoe at his request, Mr Hoe acknowledged that he understood the concept, and Mr Hoe was not disadvantaged in any way because the VCAT did not ultimately make a finding on the characterisation of his additional use of his land. The Council added that the VCAT's decision that Mr Hoe required a planning permit irrespective of the characterisation of the additional use, was indisputably correct. This was because, so it was said, the additional use did not fall within either s 1 or s 3 of the Table of Uses and therefore it was a s 2 use which required a planning permit.

38 I accept Mr Hoe's submission that, in the circumstances of the present case, the introduction on the VCAT's own initiative of the issue of an innominate use at the 2012 VCAT hearing without any prior notice either by the VCAT or the Council constituted a breach of the hearing rule of natural justice.

39 In Towie v Victoria,[16] I made the following observations in relation to the VCAT's natural justice obligations:

The tribunal is bound by the rules of natural justice ... I agree that the content of the rules of natural justice will vary according to the circumstances. However, in the case of a summary dismissal under s 75 of the VCAT Act, the tribunal is obliged to give prior notice to the complainant of any material matters that the tribunal proposes to rely upon of its own motion in support of its decision if those matters have not been raised by the respondent to the complaint who has made the application under s 75 of the VCAT Act. ...[17]

40 Although the present case did not involve an application for summary dismissal under s 75 of the VCAT Act, the observations I made in Towie are nevertheless apposite. Since 2010, the case that the Council has consistently maintained against Mr Hoe was that his additional use of his land constituted a store and that, accordingly, he required a planning permit. Following Osborn J's decision on 25 October 2011, the Council alleged that the additional use constituted a store or, alternatively, a car park. At no stage prior to the 2012 VCAT hearing did the Council suggest to Mr Hoe that another category of use in s 2 of the Table of Uses might be applicable.

41 It is apparent from the transcript of the VCAT hearing that Mr Hoe was taken by surprise by the VCAT's suggestion of an innominate use. It is also apparent from the transcript that Mr Hoe did not understand what this phrase meant. That is why he sought an explanation of its meaning. The Senior Member then explained the meaning of the phrase in an accurate manner and asked Mr Hoe whether he understood the explanation. Mr Hoe responded in the affirmative.

42 Notwithstanding the Senior Member's explanation of the meaning of the phrase 'innominate use' and Mr Hoe's statement that he understood that explanation, in the circumstances of the present case, more was required of the Senior Member to comply with the hearing rule of natural justice. Of critical importance are the following circumstances.

(b) Having prepared to meet a case that the additional use of his land constituted either a store or a car park, Mr Hoe was confronted at the VCAT hearing with new terminology involving another provision of the Table of Uses.

(d) Although Mr Hoe stated that he understood the Senior Member's explanation of the phrase 'innominate use', he failed to make any relevant submissions about the phrase. This indicates that Mr Hoe did not in fact understand the meaning of the phrase. Based on Mr Hoe's written and oral submissions in the present proceeding, I do not believe that Mr Hoe has ever understood the meaning of the phrase.

(e) Even if I am wrong and Mr Hoe did understand the meaning of the phrase 'innominate use' when it was explained to him by the Senior Member, it is abundantly clear from the transcript of the 2012 VCAT hearing that Mr Hoe did not understand the legal implications of the additional use of his land constituting an innominate use rather than a store or a car park.

43 In the circumstances set out at [42] above, it was incumbent on the VCAT to take the following additional steps:

(a) to explain to Mr Hoe the legal implications of the VCAT's introduction of the concept of innominate use;

(b) to verify that Mr Hoe understood that explanation; and

(c) to verify that Mr Hoe was in a position to continue with the hearing if the scope of the hearing extended to a consideration of whether the additional use of Mr Hoe's land constituted an innominate use.

44 By failing to take the additional steps set out at [43] above, the VCAT breached the hearing rule of natural justice.

45 It is also significant that the Senior Member did not raise the proposition that it might not be necessary for him to characterise the additional use of Mr Hoe's land until after the conclusion of final addresses. The Senior Member directed this proposition to the Council's legal representative, Ms Walsh. It is apparent from the transcript that is set out at [30] above that Ms Walsh did not fully understand the Senior Member's proposition because she sought an explanation and indicated that she would need to obtain instructions. After discussing the proposition with Ms Walsh, the Senior Member did not ask Mr Hoe whether he had understood the discussion that had taken place and whether he had anything to say on the matter. Instead, the Senior Member immediately addressed Mr Hoe on the question of costs. The Senior Member's failure to explain to Mr Hoe the basis upon which the Senior Member was proposing to decide the case and to give Mr Hoe an opportunity to address that issue on an informed basis breached the hearing rule of natural justice.

46 My conclusion that the VCAT breached the hearing rule of natural justice does not necessarily mean that Mr Hoe is entitled to relief. It is well established that a breach of the hearing rule of natural justice by the VCAT will not result in the setting aside of the VCAT's decision if the breach could not possibly have affected the outcome of the VCAT proceeding or if it would otherwise be futile to set aside the VCAT's decision.[18]

47 In the present case, even if there had been compliance with the hearing rule of natural justice, on the undisputed facts, the VCAT would have been bound to conclude that Mr Hoe had contravened the Scheme. This is because the additional use of Mr Hoe's land could only fall within s 2 of the Table of Uses, which meant that he required a planning permit. As Mr Hoe has never applied for a planning permit for the additional use, it would be futile to set aside the VCAT's finding that Mr Hoe had contravened the Scheme and to remit the proceeding to the VCAT to reconsider this issue.

48 There was no substance to Mr Hoe's allegation of apprehended bias.

49 It follows from the above that, if breach of the rules of natural justice had been the sole ground of review, I would have declined to set aside the Enforcement Order.

50 As is apparent from [2] above, there are two components to the Enforcement Order. The first component sets out the nature of Mr Hoe's contravention, as required by s 119(a) of the Act. The second component comprises two orders. The first order is substantive in that it requires Mr Hoe to reduce the number of vehicles kept on his land at any one time to a maximum of four. The second order is procedural and deals with service of the Enforcement Order.

51 The first component of the Enforcement Order is within the VCAT's jurisdiction. In circumstances where the VCAT found that the facts had remained the same as at the time of the making of the VCAT declaration, that declaration, as modified by Osborn J, continues to set out the legal position as between Mr Hoe and the Council. That legal position is that the keeping of between 8 and 10 motor vehicles semi-permanently on Mr Hoe's land is not ancillary to the use of the land as a dwelling. For the reasons set out at [47] above, the only conclusion that was open to the VCAT was that the keeping of 8 to 10 motor vehicles on Mr Hoe's land without a planning permit contravenes the Scheme.

52 Section 119(b) of the Act provides that, once the VCAT specifies the use of land that contravenes a planning scheme, the VCAT may direct the owner of the land to do specified things to ensure compliance with the planning scheme.

53 Ms Brennan, who appeared for the Council, submitted that, as the VCAT had correctly found that Mr Hoe had contravened the Scheme, the VCAT had a broad discretion under s 119(b) of the Act to make orders addressing the contravention. Ms Brennan contended that para 1 of the Enforcement Order was made to address Mr Hoe's contravention and was therefore within jurisdiction.

54 I agree with Ms Brennan that s 119(b) of the Act is couched in wide terms and enables the VCAT to make a broad range of orders to address the relevant contravention. However, there must be a nexus between the relevant contravention and the order that is made to address it. In a case such as the present, the order must be directed at the use which the VCAT has found has contravened the Scheme.

55 Ms Brennan submitted that there is a nexus between para 1 of the Enforcement Order and Mr Hoe's contravention of the Scheme because para 11 of the Reasons,[19] properly construed, contains a finding that the keeping of more than four cars on Mr Hoe's land is not ancillary to its use as a dwelling.

56 I reject Ms Brennan's interpretation of para 11 of the Reasons. Read in the context of the Reasons as a whole, para 11 contains three statements that are relevant for present purposes.

57 The first statement is that the VCAT has not formed a concluded view on how the additional use of Mr Hoe's land should be characterised. This is consistent with the VCAT's finding in para 9 of the Reasons that, irrespective of how the additional use is characterised, it falls within s 2 of the Table of Uses and requires a permit.

58 The second statement is that the VCAT has not formed 'a concluded view on ... what may be regarded as incidental or ancillary to the use of the land for a dwelling'.

59 The third statement is that the VCAT was 'not inclined to second guess the Council.' This statement relates back to the statement in para 10 of the Reasons that the Council had expressed the view that the keeping of up to four cars on Mr Hoe's land could be regarded as ancillary to its use as a dwelling without the need for a planning permit.

60 I do not consider that the VCAT's second and third statements in para 11 of the Reasons - whether alone or in combination - constitute a finding that the keeping of more than four cars on Mr Hoe's land is not ancillary to the use of the land as a dwelling. The VCAT expressly refrained from reaching what it described as 'a concluded view' on this question and was content to rest the matter on the basis that it was 'not inclined to second guess the Council.'

61 By using this tentative language on the question of whether the keeping of more than four vehicles on Mr Hoe's land was ancillary to its use as a dwelling, the VCAT must have concluded that it was not necessary for it to make a finding on this issue.

62 Such a conclusion would have been correct if the VCAT had couched para 1 of the Enforcement Order in terms of 8 to 10 vehicles. That is because the VCAT found, consistently with the Modified Declaration, that the keeping of 8 to 10 vehicles was not ancillary to the use of Mr Hoe's land as a dwelling.

63 Such a conclusion, however, cannot be correct where the VCAT included in the Enforcement Order a mandatory provision requiring Mr Hoe to remove from his land all but four of his vehicles, failing which, he faced the prospect of criminal prosecution.[20] The VCAT must make a concluded and unambiguous finding that the keeping of more than four vehicles on Mr Hoe's land is not ancillary to its use as a dwelling before the VCAT can impose such a mandatory requirement. The VCAT cannot simply adopt the views of the responsible authority. It must decide the issue for itself.

64 The absence of a finding by the VCAT that the keeping of more than four vehicles on Mr Hoe's land is not ancillary to its use as a dwelling means that there is no nexus between Mr Hoe's contravention of the Scheme and para 1 of the Enforcement Order. This is because the only contravention that the VCAT has found is confined to 8 to 10 vehicles whereas para 1 applies to all vehicles exceeding four.

65 The analysis at [60] to [64] above means that the VCAT purported to include para 1 in the Enforcement Order without a jurisdictional foundation. It follows that para 1 of the Enforcement Order was made without jurisdiction. The absence of jurisdiction is apparent on the face of the record of th[21]VCAT's decision.21

66 I note, in passing, that the Council's application for an enforcement order dated 13 March 2012 did not seek an order to the effect of para 1 of the Enforcement Order.[22] By contrast, the earlier application dated 29 November 2010 did so.[23]

67 Ms Brennan contended that, if I concluded that para 1 of the Enforcement Order was made without jurisdiction, the consequence should be the setting aside only of para 1 rather than the whole of the Enforcement Order. I agree. The first component of the Enforcement Order is clearly within the VCAT's jurisdiction and logically follows from the Modified declaration.

68 The analysis set out at [60] to [65] above did not expressly feature in Mr Hoe's oral or written submissions. However, Mr Hoe's grounds of review, affidavits and written submissions complained that the Enforcement Order was vitiated by legal error and made express reference to the absence of a finding that the keeping of five, six or seven vehicles on his land did not constitute an ancillary use. Mr Hoe also relied on the Wednesbury unreasonableness ground of review. In the light of the fact that Mr Hoe is a self-represented litigant and the fact that it is obvious on the face of the record of the VCAT's decision that the VCAT has exceeded its jurisdiction, subject to the discretionary considerations discussed below, it would be appropriate to grant relief to Mr Hoe. The jurisdictional error in the present case is so obvious and so serious that no reasonable tribunal could have made a decision to include para 1 in the Enforcement Order.

69 Mr Hoe made extensive submissions about res judicata and issue estoppel which were difficult to follow. The Enforcement Order was consistent with the Modified declaration and sought to give effect to it. The Council did not seek to re-litigate any of the issues that were determinative in relation to Osborn J's decision to make the Modified declaration. Accordingly, res judicata and issue estoppel had no relevance to the present case.

70 Section 148 of the VCAT Act provides a right of appeal on questions of law from decisions of the VCAT, provided the Court grants leave. The existence of a more appropriate statutory remedy with a safeguard to prevent unmeritorious challenges to decisions of the VCAT is a very strong discretionary consideration in determining whether to grant relief under O 56 of the Rules. Ordinarily, an unsuccessful party to a proceeding before the VCAT would need to have a very good reason for seeking judicial review of the VCAT's decision instead of applying for leave to appeal under s 148 of the VCAT Act.[24] However, this Court is less likely to refuse relief on discretionary grounds where an application for judicial review is based on a jurisdictional error.

71 In my opinion, there are features of the present case which would make it inappropriate for the Court to refuse relief to Mr Hoe on discretionary grounds.

72 First, Mr Hoe is self-represented. Although previously he exercised the appeal mechanism in s 148 of the VCAT Act in relation to the VCAT declaration, I am unable to conclude that Mr Hoe deliberately sought to circumvent the leave requirements of s 148 on the present occasion.

73 Secondly, had Mr Hoe made an application for leave to appeal in relation to the Enforcement Order, based on the analysis at [60] to [65] above, it is highly likely that he would have been granted leave to appeal.

74 Thirdly, in applications under O 56 of the Rules, this Court exercises its supervisory jurisdiction over other courts, tribunals and public officials. That jurisdiction is fundamental to the rule of law of this State because it ensures that other courts, tribunals and public officials do not exceed their jurisdiction or abuse their powers. In a case such as this, where it is clear on the face of the record of the VCAT's decision that the VCAT has exceeded its jurisdiction, it would be inappropriate for this Court to stand idle and allow that position to subsist.

75 Fourthly, the dispute between Mr Hoe and the Council in respect of Mr Hoe's motor vehicles has been ongoing since 2010 and has resulted in numerous proceedings before the VCAT and this Court. It is in the public interest, as well as in the interests of the parties, that the dispute be resolved expeditiously and that there be finality in litigation. If this Court refuses relief to Mr Hoe on discretionary grounds, it is possible that he may seek an extension of time within which to apply for leave to appeal from the VCAT's decision. Such ongoing litigation would not be in the public interest.

76 Finally, granting relief to Mr Hoe would be consistent with the overarching purpose in s 7 of the Civil Procedure Act 2010. That purpose is 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.'

77 For the above reasons, I will order that para 1 of the Enforcement Order be set aside.

78 I will hear from the parties on the appropriate form of the order to be made by this Court and on the question of costs, including the costs of the VCAT proceeding.

[1] Manningham City Council v Hoe (Unreported, VCAT, Senior Member Wright, 16 August 2012) ('Reasons').

[3] Manningham City Council v Hoe (Unreported, VCAT, Dwyer DP, 29 June 2010) [7].

[4] Manningham City Council v Hoe (Unreported, VCAT, Dwyer DP, 29 June 2010).

[5] Hoe v Manningham City Council [2011] VSC 37 (22 February 2011) (Pagone J).

[6] Hoe v Manningham City Council [2011] VSC 543 (25 October 2011) [53]-[55].

[7] Hoe v Manningham City Council [2011] VSC 543 (25 October 2011) [63].

[8] On 8 October 2010, Mukhtar AsJ refused leave to appeal. Mr Hoe appealed against this refusal. On 22 February 2011, Pagone J reversed Mukhtar AsJ's decision and granted to Mr Hoe leave to appeal. See Hoe v Manningham City Council [2011] VSC 37 (22 February 2011).

[9] Transcript of Proceedings, Manningham City Council v Hoe (VCAT, P813/2012, Senior Member Wright, 10 August 2012) 8-9.

[10] Transcript of Proceedings, Manningham City Council v Hoe (VCAT, P813/2012, Senior Member Wright, 10 August 2012) 17-18.

[11] Transcript of Proceedings, Manningham City Council v Hoe (VCAT, P813/2012, Senior Member Wright, 10 August 2012) 66-9.

[13] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[14] This ground has been distilled from Mr Hoe's affidavit affirmed on 12 September 2012 (Court Book, 15).

[15] See s 117(1) of the Act and s 98 of the VCAT Act.

[17] Towie [2008] VSC 177; (2008) 19 VR 640, 651-2 [43] (citations omitted).

[18] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145; Dona Homes (Vic) Pty Ltd v Stevens [2005] VSC 499 (21 December 2005) [4]; Towie [2008] VSC 177; (2008) 19 VR 640, 653 [49]-[52].

[19] See [32] above.

[21] In accordance with s 10 of the Administrative Law Act 1978, the VCAT's reasons form part of the record of the VCAT's decision.

[22] See [26] above.

[23] See [22] above.

[24] See Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 292-4 [15]-[17]; North Burnside Pty Ltd v Melton Shire Council [2006] VSC 35 (13 February 2006) [66]-[71]; Garde-Wilson v Legal Services Board [2008] VSCA 43; (2008) 19 VR 398, 400-1 [8]-[11], 415 [99]-[100], 417 [109]-[112].

Planning and Environment Act 1987

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Environment Act 1987

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (5)