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[2017] VSC 429
Supreme Court of Victoria
2017-07-28
GARDE J
Original judgment source is linked above.
PLANNING - Existing use rights - Advertising signs - Real and substantial purpose - 15 year period of continuous use - Characterisation of the purpose of the use - Real and substantial purpose - Graffiti - Cessation of the use for two years - Interpretation of cl 63.11 of Melbourne Planning Scheme - Planning and Environment Act 1987 (Vic) s 6(3), (4), Melbourne Planning Scheme cls 22.07, 37.04, 52.05, 63.01, 63.02, 63.04-63.06, 63.11 and 73.
1 Octopus Media Pty Ltd ('Octopus Media') seeks leave to appeal, and if leave is granted, appeals from the decisions of the Victorian Civil and Administrative Tribunal ('the Tribunal') made on 13 December 2016 in applications P171/2016 ('the declaration proceeding') and P416/2016 ('the permit proceeding').[1]
2 The proceedings concern an existing sign ('the sign') erected approximately 4m above the rooftop of a 10 storey building at 500 Flinders Street, Melbourne ('the land'). The sign is 81m2 (18m x 4.5m) in area, and the top of the sign is approximately 36.65m above street level. Octopus Media leases advertising space on signs, and is the current leaseholder of the sign. The land is within the municipal district of the City of Melbourne ('the Council') and is subject to the Melbourne Planning Scheme ('the Planning Scheme'). The Council is the responsible authority for the land.[2]
3 Octopus Media seeks to use the sign for advertising space. To do so, it must either establish existing use rights for the sign or obtain a permit for its use. The Council opposes the claim for existing use rights and would have refused the application for a permit had it decided the permit application within the statutory timeframe.
4 Following applications by Octopus Media to the Tribunal, the Tribunal determined in the declaration proceeding that the land did not have the benefit of existing use rights under s 6(3) of the Planning and Environment Act 1987 (Vic) ('the Act') or cl 63 of the Planning Scheme.[3] The Tribunal declined to make any declaration in relation to whether the Council can require the removal of the sign.[4]
6 The grounds of appeal relied on by Octopus Media are:
7 The Tribunal held that Octopus Media failed to establish an existing use right for a number of reasons. In order to be successful in its application to have the Tribunal's decision set aside in the declaration proceeding, Octopus Media must succeed in all of grounds 1-3, 4 or 5, and 6 or 7. In order to be successful in its application to have the Tribunal's decision set aside in the permit proceeding, it must succeed in ground 8.
8 Octopus Media relies on two affidavits of its solicitor which exhibit the submissions and evidence before the Tribunal. There was no cross-examination before the Court. The Council did not file any affidavits in this proceeding.
9 In Secretary to the Department of Premier and Cabinet v Hulls,[8] the Victorian Court of Appeal gave detailed consideration to the question of when leave to appeal will be granted under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). A pivotal requirement is that an applicant must identify a question of law for which there is a real or significant argument to be put that error exists.[9] The applicant does not need to establish the error, but must show that there is real or significant argument to be put that error exists.[10] Though not a necessary factor, the Court will have regard to whether the applicant has identified a question of law that is of general or public importance.[11] Ultimately, 'what must govern is the justice of the case as it appears to the court from which the appeal is sought, and that means justice to all parties...'[12]
10 Section 6(3) of the Act protects uses and works lawfully commenced or constructed before a planning scheme or amendment comes into operation. It provides:
(3) Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -
(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or
(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e) require the removal or alteration of any lawfully constructed building or works.
11 The rights afforded by s 6(3) are known as 'existing use rights'. Existing use rights are lost if the use stops for two years or for a total of two years in any period of three years. Section 6(4) of the Act provides:
(4) Subsection (3) does not apply to a use of land -
(a) which has stopped for a continuous period of two years; or
(b) which has stopped for two or more periods which together total two years in any period of three years; or
(c) in the case of a use which is seasonal in nature, if the use does not take place for two years in succession.
12 Clause 52.05 of the Planning Scheme regulates advertising signs and provides:
Purpose
To regulate the display of signs and associated structures.
To provide for signs that are compatible with the amenity and visual appearance of an area, including the existing or desired future character.
To ensure signs do not contribute to excessive visual clutter or visual disorder.
To ensure that signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road.
52.05-1 Requirements
Advertising categories
Clauses 52.05-7 to 52.05-10 specify categories of advertising control. The zone provisions specify which category of advertising control applies to the zone.
A sign in Section 1 of the category may be displayed without a permit, but a condition opposite the sign must be met. If the condition is not met, the sign requires a permit unless specifically included in Section 3 as a sign that does not meet the Section 1 condition.
A sign in Section 2 may be displayed only with a permit and a condition opposite the sign must be met. If the condition is not met, the sign is prohibited.
A sign in Section 3 is prohibited and must not be displayed. Some overlays require a permit for Section 1 signs.
If a sign can be interpreted in more than one way, the most restrictive requirement must be met.
...
Expiry of permit
A permit for a sign other than a major promotion sign expires on the date specified in the permit. If no date is specified, the expiry date is 15 years from the date of issue of the permit.
...
52.05-5 Existing signs
A sign that was lawfully displayed on the approval date or that was being constructed on that date may be displayed or continue to be displayed and may be repaired and maintained.
A lawfully displayed advertisement may be renewed or replaced. However, a permit is required:
A sign that is reconstructed must meet the relevant advertising sign requirements.
52.05-6 Major promotion sign
Purpose
To achieve high quality visual standards for the siting of major promotion signs.
To ensure that the signs are not detrimental to the appearance of their surroundings or the safe and efficient operation of the route through the application of consistent planning controls.
...
Permit requirement
A permit for a major promotion sign must include conditions that specify:
...
...
Alternative expiry date condition
...
A major promotion sign displayed in accordance with a permit granted between 19 September 1995, and 18 September 1997, may continue to be displayed:
13 Clause 63 deals with existing use rights and provides:
63.01 Extent of existing use rights
An existing use right is established in relation to use of land under this scheme if any of the following apply:
...
63.02 Characterisation of use
If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.
...
63.04 Section 1 uses
A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met.
63.05 Sections 2 and 3 uses
A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:
63.06 Expiration of existing use rights
An existing use right expires if either:
...
63.11 Proof of continuous use
If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.
An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:
14 Relevant definitions relating to signs are found in cl 73 of the Planning Scheme:
Electronic sign
A sign that can be updated electronically. It includes screens broadcasting still or moving images.
Floodlit sign
A sign illuminated by external lighting provided for that purpose.
Major promotion sign
A sign which is 18 square metres or greater that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.
Sign
An advertisement on any structure built specifically to support it.
15 The Tribunal made detailed factual findings as to the erection and use of the sign on the land.[13] The relevant facts found by the Tribunal are summarised in the following. The use of the rooftop level of the land for an advertising sign commenced in 1990 following the issue by the Council of amended permit DP88/0006. The endorsed plan showed an animated, internally illuminated promotion sky sign 15m wide and 2.25m high. The sign was used from about 1990 to display the letters 'GoldStar'.
16 In 1997, permit TP96/324 was issued for an enlarged sign 18m wide and 4.5m high with an advertising area of 81m2 advertising 'LG Electronics'. Condition 8 in permit TP96/324 provided for it to expire four years after the date of issue. As a result of planning scheme amendments, the date of expiration was extended to 23 March 2010. Up until around this date, the sign was used to display paid advertisements.
17 In about 2010, the sign ceased to be used to display paid advertisements although the structure remained. The sign surface was then subjected to graffiti and tagging by third persons until about April 2015. Use of the sign for paid advertising then resumed on the basis of claimed existing use rights.
18 The only remaining statutory basis for existing use rights still pursued by Octopus Media is under the fourth dot point of cl 63.01, that is based on proof of continuous for 15 years established under cl 63.11 of the Planning Scheme. The Tribunal's main reasons for dismissing the claim for existing use rights under cl 63.11 were:
(1) the correct description of the purpose of the use of the rooftop level was displaying and advertising to the public, or for the purpose of the display of an advertising sign.[14]
(2) the 15 year period that must be considered under cl 63.11 is the 15 year period immediately preceding the date of the application;[15]
(3) there was no existing use right under cl 63.11 over this period, as the Council had clearly and unambiguously given written directions for the use to stop in 2008 (twice) and in 2015;[16]
(4) while Octopus Media sought to rely on an earlier period of 15 years preceding December 2008 this was not the appropriate period;[17]
(5) in any case, the Tribunal was not satisfied that there had been continuous use over the 15 year period relied on by Octopus Media;[18]
(6) the Tribunal was not satisfied that the sign and sign structure were constructed and maintained in compliance with permit conditions and approved plans;[19] and
(7) the use of the rooftop level as an advertising sign stopped for a continuous period exceeding two years.[20]
Ground 1 - the interpretation of cl 63.11 of the Planning Scheme
19 Octopus Media made its application for a declaration to the Tribunal under s 149A of the Act on 28 January 2016. It seeks to rely on a 15 year period of use prior to December 2008 giving as an example the period from 1990 to 2005. Octopus Media submits that the Tribunal erred in interpreting cl 63.11 of the Planning Scheme when it held that the 15 year period of continuous use must be immediately prior to the date of the relevant application.
20 On 4 and 22 December 2008 and again on 13 February 2015, the Council sent letters to a consultant of the owners corporation of the land ('owners corporation') or to the owners corporation itself expressing its concern that the display of the sign on the land was in contravention of the Planning Scheme, and requiring the removal of the sign and support structure.[21] It is not in dispute that these letters constitute clear and unambiguous written directions by the responsible authority for the use to cease by reason of its non-compliance with the Planning Scheme.[22] Unless Octopus Media can rely on a 15 year period of continuous use that precedes December 2008, it will fail to establish an existing use right.
21 Octopus Media relies on the well-established principle of interpretation that if there is any ambiguity in a provision designed to protect and preserve existing use rights, the provision should be as liberally construed as the language in its context allows.[23] It advances a number of constructional arguments in support of its submission that the 15 year period of continuous use required by cl 63.11 can be at any time in the history of the use. Its main submissions are that:
(1) an interpretation that requires the 15 years of continuous use to be immediately prior to the lodgement of an application or proceeding is unsupported by the words or purpose of cl 63;
(2) the only reference to immediacy in cl 63.11 is where the provision makes clear that the right may be established even if the use did not comply with the scheme 'immediately prior to or during the 15 year period'. This does not address when the 15 year period commences;
(3) the word 'immediately' is used in cl 63.01 in the first two dot points as referring to existing use rights being established when a certain circumstance existed 'immediately before' an approval date;
(4) the Tribunal's interpretation adds the word 'immediately' where it is not currently, contrary to the principles of statutory construction, whereas the interpretation propounded by Octopus Media stands alone without the need for additional words;
(5) clause 63.11 refers to 'a period in excess of 15 years'. The use of the indefinite article supports the suggested interpretation; and
(6) clause 63.11 is intended to assist claimants where the approval date is so long ago that it is difficult to gather evidence of the circumstances of the initial commencement. If the existing use right of a very long user can be extinguished by a responsible authority simply by sending a notice as soon as the long use is drawn to the responsible authority's attention, then the intention of the provision is nullified.
22 The Council submits that the Tribunal's decision is correct and adopts the reasons given by the Tribunal.
23 The Tribunal preferred the construction of cl 63.11 that has been consistently applied by the Tribunal in more recent times,[24] i.e. that the 15 year period is fixed as the 15 years immediately prior to the date of the relevant application or proceeding.[25] While there was some support for the interpretation urged by Octopus Media in early Tribunal cases,[26] there was none recently.[27]
24 After referring to the regulatory purpose of cl 63.11, the Tribunal gave reasons for its preferred construction of cl 63.11:
(1) the preferred construction gives greater certainty;
(2) the purpose of the 15 year rule is to facilitate a simpler, more recent enquiry. It is contrary to that purpose to permit the proponent of an existing use right to choose any period in the history of the use;
(3) it is illogical to permit a proponent to choose any period in the history of the use to establish an existing use right where there may be doubt as to whether that use continued from the end of that 15 year period until the present time. The applicant would still need to prove continuous use through to the date of the application for review in order to rely upon any existing use right established during the earlier period. If the relevant period is simply the 15 year period immediately prior to the date of the relevant application or proceeding, that anomaly does not arise;
(4) a construction which permits a proponent to rely on any 15 year period would thwart enforcement of the Planning Scheme. The regulatory purpose of the 15 year rule appears to be to give Council the chance to 'get in first' to seek compliance, but otherwise to allow a person to rely on a period of unlawful activity as part of the 15 year period if the Council has not done so; and
(5) the preferred construction of cl 63.11 does no more than give meaning to the words 'prior to'. Even if the construction is taken to add the word 'immediately' to the term 'prior to' in cl 63.11, the alternative construction would do the same by effectively adding the words 'at any time'. [28]
Previous decisions regarding existing use rights
25 In Kraan v Cardinia SC,[29] DP Gibson held:
There is nothing in the Planning and Environment Act 1987 that limits the establishment of existing use rights only to those circumstances described in section 6(3). Until introduction of the new format planning schemes based on the Victoria Planning Provisions, planning schemes generally defined existing use rights by reference to uses lawfully established prior to approval of the planning control. However, as the approval date of many planning schemes and amendments receded into the past, the practical difficulties associated with proving the lawful establishment of a use prior to this date increased. Witnesses, who might attest to when the use was established and its nature, died or disappeared. Records were lost. Ironically, the longer a use was in existence the more difficult it became to prove existing use rights.[30]
26 In Wellington v Surf Coast SC,[31] DP Dwyer held:
It follows that what is required by cl 63.11 is simply an examination of whether a continuous use for a purpose is established for 15 years prior to the date of the s 149B application. Although this lends weight to a view that the date of application is technically the 'relevant date' for the purpose of cl 63.02 (i.e. here, 3 June 2010), what is really important under cl 63.11 is the inquiry into the use between two dates, to establish continuous use over a period of 15 years. It is the use that must have remained continuous, so the inquiry is essentially whether land has been used continuously for the same purpose over the period. ...[32]
27 There are also three earlier decisions of the Tribunal that consider cl 63.11; Beckman v Port Phillip City Council,[33] Gyurcsik v Greater Dandenong CC,[34] and Port Phillip City Council v Beckman.[35] In the first decision, it was considered that the 15 year period must immediately precede the date of an application for a permit or a proceeding.[36] In the last two decisions, it was considered that the 15 year period could be any 15 year period prior to that date provided that the use had subsequently continued and not ceased.[37]
28 In the Supreme Court case of Mornington Peninsula Shire Council v Anderson,[38] Pagone J considered a dispute between residents and a council which conducted the use as to whether the 15 year period required to establish existing use rights under cl 63.11 could include periods of time when permits were held. Both sides proceeded on the basis that the continuous period of 15 years that had to be shown was the period of 15 years prior to the date when the residents commenced enforcement proceedings against the council. Pagone J decided that cl 63.11 was designed to facilitate the establishment of a use right and summarised the policy evident in cl 63:
Planning legislation has typically had to develop mechanisms to protect uses which had been permitted before a change to a planning scheme. To that end it has often been said that provisions protecting existing use rights should be construed liberally. To that may be added that provisions should be construed to give them a sensible operation. The policy evident in clause 63 is to continue to permit a use which an earlier scheme had allowed notwithstanding a change. There is nothing in that policy that requires a reading of clause 63.11 to protect uses contrary to a planning scheme but to exclude from protection uses which were expressly allowed by permit. The underlying policy is to preserve the continuation of permitted uses and I see nothing in the policy evident in clause 63 to favour uses which are contrary to a planning scheme and exclude for consideration complying uses through permits. The actual use of the land pursuant to a permit is in my view unquestionably part of the use that clause 63.11 requires to be considered in the calculation of the 15 year period.[39]
29 The construction of cl 63.11 must achieve a balance between the two important policies that underpin the planning system in Victoria. The first is that planning schemes should be complied with by land owners and users.[40] The second is that the rights of land owners and users are protected in the circumstances described in s 6(3) of the Act and cl 63 of the Planning Scheme. While it was originally expected that existing use rights would phase out over time, zoning changes in a planning scheme can give rise to new situations where owners depend on existing use rights to continue their business or activities.
30 The construction of s 6(3) of the Act and cl 63.11 of the Planning Scheme should be approached by the application of the well-established principles of interpretation that apply to a statute or instrument authorised by a statute.
31 In Project Blue Sky Inc v Australian Broadcasting Authority,[41] McHugh, Gummow, Kirby and Heydon JJ said:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[42]
32 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[43] Hayne, Heydon, Crennan and Kiefel JJ said:
This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[44]
33 The significance of the statutory text in construction was emphasised in Commissioner of Taxation v Consolidated Media Holdings Limited:[45]
[As was said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue] "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[46]
34 First, it is appropriate to consider the purpose of s 6(3) of the Act and cl 63.11 of the Planning Scheme. The first town planning legislation in Victoria was the Town and Country Planning Act 1944 (Vic). This Act authorised the establishment of the Town and Country Planning Board and the preparation and approval of planning schemes. Responsible authorities then started to prepare planning schemes in the metropolitan area of Melbourne and across Victoria. The adoption of planning schemes was preceded by the promulgation of interim development orders. Inevitably, as work continued, there were existing uses that did not conform with zones and for which permits could not be obtained. For example, they included flats or units which did not comply with parking requirements, and dry cleaning establishments in residential zones which attracted the classification of industry. By the 1970s and 1980s, it was increasingly difficult for an owner to prove as a practical matter that existing uses had been lawfully commenced prior to the introduction of the relevant interim development order or planning scheme, and thereafter continued. In many cases, evidence of prior use was simply not available as records did not exist or could not be found, and key witnesses had died or could not be located.
35 The difficulties were not solely confined to proponents of existing use rights. They also applied to responsible authorities and third parties. They were faced with similar inquiries and costs if they were to protect their own interests, and those of the community.
36 In 1998, the Victorian Planning Provisions adopted the current form of cl 63. While leaving the onus of proof of an existing use right on the proponent of that right, the task of proof was simplified to proof of continuous use over a period of 15 years. The current form of cl 63.11 was intended to reduce the evidentiary burden on the proponent and the need to inquire back over many decades. Existing use rights are recognised even if the use is not proved to have lawfully commenced prior to the relevant approval date, or conducted since that date, provided that all of the requirements of cl 63.11 are met. Clause 63.11 does not require proof of continuous use back to the original approval date of the relevant provision of the applicable planning scheme or interim development order. This is why cl 63.11 refers to 'sufficient proof'. However, it remains open for the proponent of an existing use right to prove the right in any manner authorised by s 6(3) of the Act and cl 63 of the Planning Scheme. Thus, in the case of a use which does not comply with a recent amendment to a scheme which took effect less than 15 years ago, proof of existing use rights under s 6(3) and cl 63.01 will be back to the relevant approval date.
37 As I have said, it is essential for a balance to be struck between enforcement of planning schemes and the recognition of existing use rights. The objectives of the planning framework established by the Act include 'to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements'.[47] It is a duty of a responsible authority 'to efficiently administer and enforce the planning scheme'.[48] In simple terms, responsible authorities are required to enforce planning schemes.
38 With the adoption of cl 63.11, there is a risk that a responsible authority seeking to bring an unpermitted or unlawful use to an end might be faced with delaying tactics so that a non-complying user could achieve a total period of 15 years of continuous use, and thereby establish an existing use right. The risk that conduct of this nature might pose to enforcement is removed by the dot points in cl 63.11. They deny a proponent of an existing use right access to the 15 year rule in cl 63.11 if the use has been held to be unlawful by a decision of a court or tribunal at any time, or if during the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the Planning Scheme.
39 Consideration of its purpose suggests that cl 63.11 is most sensibly interpreted if the period of 15 years is required to immediately precede the relevant application. This gives effect to the intent of the clause that all parties gain the benefit of a time period reduced to 15 years and are not put in a position where inquiries over many decades may be necessary.
40 Secondly, it is highly desirable that cl 63 is given a simple construction so that it is capable of administration by responsible authorities at the officer level. Under s 97N of the Act, any person may apply on an application form to a responsible authority for a certificate stating that an existing use or development complies with the requirements of the Planning Scheme at the date of the certificate.[49] The application is handled by a council officer, and ultimately by a council. It is entirely unrealistic to expect a council officer handling such an application to be required to consider whether existing use rights are established over a 15 year period at any time over a period of decades, and then also to have to decide whether the use subsequently stopped for a continuous period of two years, or for two or more periods which together total two years in a period of three years. Council records may not exist or be available even after a search of archives which may need to extend to the records of predecessor councils. This suggests that the construction adopted by the Tribunal is the correct construction as it confines the inquiry to the 15 year period immediately preceding the date of the relevant application.
41 Thirdly, there is an important need for certainty as to the relevant period for inquiry. If the construction urged by Octopus Media is adopted, there may be multiple ways that a 15 year period can be configured over a number of decades from a relevant approval date. The preferred construction should avoid uncertainty, ambiguity and the need for the responsible authority and the Tribunal to investigate multiple alternative claims for existing use rights that may be brought forward by a proponent.
42 Fourthly, if it is open to the proponent of a claim for existing use rights to choose any 15 year period since the use commenced no matter how distant in time that may be, it is still necessary for the proponent of the existing use right to prove that the use did not subsequently stop for a continuous period of two years or for two or more periods which together total two years in any period of three years. A construction that involves an inquiry extending over many years is contrary to the purpose of facilitating a simpler, more recent inquiry to establish existing use rights.[50]
43 Finally, the construction adopted gives harmonious effect and application to the words of cl 63.11. There is no difficulty or inconsistency which results from the preferred construction. All words in cl 63.11 are given their ordinary meaning and have full effect.
44 The principal concern expressed by the Tribunal in the earlier decision of Port Phillip City Council v Beckman[51] was that the interpretation that I have adopted might operate unfairly in the case of a long standing use which commenced after an approval date and was unlawful.[52] Such a use would not benefit from cl 63.11 if the responsible authority took enforcement proceedings against the user before the user made an application to the responsible authority or took proceedings in the Tribunal. However, in such a case, the use was unlawful when it commenced and remained unlawful at all times. It was not a use lawfully established before a relevant approval date. It is not protected under s 6(3) of the Act, or under cl 63.01 of the Planning Scheme. A responsible authority is under a duty to act to enforce the planning scheme for which it has responsibility. It is not an absurdity that a use that was always unlawful is not protected under cl 63.11. Rather, on the preferred construction, cl 63.11 does significantly simplify the proof of existing use rights as they are recognised in s 6(3).
45 The construction adopted gives due recognition to the principles accepted by Pagone J in Mornington Peninsula SC v Anderson[53] that existing use rights should both be given a liberal construction, and be construed so as to give them a sensible operation.[54] It is consistent with the statement by the High Court in Woollahra MC v Banool Developments[55] that the principle of liberal construction is 'no warrant for failing to give due weight to the natural and ordinary use of the words used as influenced by the context in which they are found'.[56]
46 The result is that the construction of cl 63.11 adopted by the Tribunal is correct, and ground 1 fails.
Ground 2 - Evidence of 15 years of use was not equivocal
Ground 3 - Effect of permit conditions upon an existing use right established under cl 63.11
47 The Tribunal's construction of cl 63.11 led it to reject the 15 year period proffered by Octopus Media. However it also examined the evidence and made findings as to whether the 15 year period advanced by Octopus Media met other requirements of cl 63. It was concerned with the sufficiency of the evidence of the original sign, and whether this evidence discharged the onus of proof of continuous use of 15 years.[57] This included the evidence of Mr Kevin Burke, which was based on his visits to the land, travelling past it on the train, and undated photographs downloaded from the internet. There were few, if any, records as to early signage permission or use.[58]
48 After reviewing the evidence, the Tribunal concluded in relation to the earlier 15 year period that Octopus Media had not satisfied the Tribunal on the evidence that there had been continuous use over that period or that any conditions or restrictions imposed on the use had been met.[59]
49 As to ground 2, the Tribunal's findings of fact were based on its analysis of the evidence. Despite the arguments of Octopus Media, I am not satisfied that there is any basis for overturning the Tribunal's factual findings, or that they are manifestly unreasonable. The Tribunal is a specialist tribunal well able to examine and determine issues of fact in planning matters.[60] It heard the witnesses and made findings as to the extent that proof of relevant matters was achieved and the cogency of the evidence.[61] Nothing has been advanced by Octopus Media to show that the Tribunal's findings were manifestly unreasonable or in any way outside the framework of rationality or lacked evidence or intelligible justification.[62]
50 I reject the submission that there was a denial of natural justice when the Tribunal reached the conclusions that it did in relation to the evidence or in relation to Mr Burke. The issues were clearly identified, and the need for Octopus Media to prove that it satisfied the requirements of cl 63 was at the forefront of the case. It was up to Octopus Media to prove its case and satisfy the Tribunal that it had existing use rights. Octopus Media determined what witnesses it would call. It elected not to call Mr Burke to give viva voce evidence. It was entirely within its rights when it did not do so, but can hardly complain if the resulting state of evidence was considered by the Tribunal to be insufficient.
51 As to ground 3, the Tribunal found that the use of the sign commenced on the land in 1990 under permit DP88/0006.[63] There is no expiry condition in this permit, as it was issued prior to the introduction of mandatory expiry conditions for advertising signs by cl 7-6.1A of the Planning Scheme in 1996.[64] In 1997, permit TP96/324 was issued.[65] Condition 8 provided that the permit expired four years after the date of issue.[66]
52 Permit TP96/324 superseded permit DP88/0006, and was acted on by the permit applicant.[67] The permit applicant was thereby bound by its conditions including the time limitation. As Osborn J held in Benedetti v Moonee Valley CC,[68] the constraint imposed by the conditions is voluntarily assumed by the landowner if, but only if, the landowner takes the benefit of the permit. The permit conveys a form of net benefit and incidentally imposes a limitation.[69]
53 Here, the permit applicant took the benefit of permit TP96/324. It erected and displayed a new sign in accordance with the permit, and thereby accepted the conditions relating to development and use.[70]
54 Octopus Media contends that the Tribunal erred when it held that:
(1) the applicant is bound by the conditions of permit TP96/324 in relation to both the development and use and can no longer rely on the earlier permit - at least not in support of unrestricted use rights;[71]
(2) permit TP96/324 included a mandatory expiry condition, which led to the expiry of the right to display the sign at the latest after 23 March 2010;[72] and
(3) the applicant had not satisfied it that any conditions or restrictions on the use continue to be met.[73]
55 In relation to these contentions, the following observations may be made:
(1) There is no doubt that permit TP96/324 superseded permit DP88/0006, and that the permit applicant by acting on the permit accepted its conditions including the expiry date. After the later permit was acted on and took effect, it became the operative permit governing the development and use and any conditions or the development and use.
(2) Under permit TP96/324, the right to lawfully display the sign continued following two planning scheme amendments until 23 March 2010.
(3) While display of the sign after 23 March 2010 was unlawful in that it was after the expiry date set by permit TP96/324 as extended, it would nonetheless be counted towards the 15 year period as under cl 63.11 an existing use right may be established even if the use did not comply with the Planning Scheme immediately prior to or during the 15 year period.
(4) Clause 37.04 of the Planning Scheme contains provisions for the Capital City Zone. The use of land for the display of advertising signs is not a use expressly listed in sections 1, 2 or 3 of the Table of Uses in the clause . However, it would fall under the innominate category 'Any other use not in Section 1 or 3 of the schedule to this zone'. Schedule 1 applies to the area 'outside the retail core' and identifies various categories of uses and stipulates whether a permit is or is not required or whether the use is prohibited. The use of land for the display of advertising signs is again not a use expressly listed. However, it falls within the innominate category of 'any other use', under the section detailing uses for which a planning permit is required.
(5) The second dot point of cl 63.05 requires that any condition or restriction to which the use was subject continues to be met. The issue then arises as to whether a condition in a permit to the effect that the permit expires on a particular date is a condition or restriction 'on the use' to which cl 63.05 applies, and, if it is, how it is to be construed in the light of cl 63.11 which provides that an existing use right may be established 'even if the use did not comply with the scheme immediately prior to or during the 15 year period'. The issue was not argued before me in any detail, and it is not necessary for me to express a final view as to the respective constructions of cl 63.05 and cl 63.11 in the context of an expiry condition contained in a permit.
56 Octopus Media fails to meet the threshold for challenging findings of fact. The findings made by the Tribunal were open to it on the evidence. In addition, as I have said the 15 year period contended for by Octopus Media is not the period that must be established under cl 63.11. The Tribunal's findings as to the period contended for by Octopus Media are not germane to the outcome of the declaration proceeding. Even if the Tribunal did err on any aspect (which I have not found), it was not, and could not be, a vitiating error.
Grounds 4 and 5 - what is the characterisation of the purpose of the use of the sign?
58 The Tribunal held that the purpose of the use of the sign, or at least of the land comprising the rooftop level, was for the display of advertising messages to the public, or for the purpose of the display of an advertising sign.[74] Insofar as the Tribunal's decision is based on findings of fact, Octopus Media must show that the particular finding was not open on the evidence.[75]
59 There is agreement between the parties that it is the real and substantial purpose for which the land is being used that forms the basis of the inquiry.[76] It is also common ground that the designation of the purpose being served by the use of the premises at the material date is a question of fact determined by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date.[77]
60 In APN (Outdoor) Trading Pty Ltd v Melbourne CC,[78] Cavanough J considered whether a large floodlit promotional sign erected on a building at Southbank could attract existing use rights under s 6(3) of the Act. His Honour held:
In this case, the land in question is being applied to the purpose of displaying advertising messages to the public. That is a real and valuable purpose. Although, as submitted by the respondent, there may be little physical activity beyond what is required to put up the advertisements, change them periodically, keep up the illumination (perhaps by replacing burnt out light sources) and maintain the supporting structure, that small amount of activity is sufficient to fulfil the purpose to which the appellant has decided to put the land. The appellant is deriving the full benefit of the purpose to which it has chosen to apply its land. That, in my opinion, may very well be sufficient to establish 'use' within the meaning of s 6(3) of the Act.
...
In my opinion, the display of an advertising sign does involve a process. The process is the transmission of a message or information to passers-by.
...
A sign is constructed with its own distinct and specific purpose. It is also inaccurate to speak of 'passive observation' of an advertising sign. An advertising sign is deliberately made to look a particular way in order to communicate specific information. The observer is not merely admiring the aesthetic look of the sign but is receiving and digesting information and, the advertiser hopes, using that information to influence their beliefs, behaviour or purchasing choices. That is a very different process from the mere observation or admiration of a pretty house.
That is not to say that communication of information is necessarily required. One can imagine a situation, for example, where large sculptures or works of art are passively observed and admired from some distance. One often sees in Victoria large sculptures erected beside freeways and highways. In my opinion, it could be said that the land on which those sculptures stand are used to display artwork.[79]
61 Cavanough J noted that there have been many cases in various Australian jurisdictions in which it has been accepted that display of an advertising sign may constitute a use of land.[80] These decisions were helpful in illustrating that it is widely accepted that the display of advertising signs can constitute the use of land as that term is commonly understood in the context of town planning.[81]
62 The facts as found by the Tribunal included the following:
(1) The sign was erected under amended permit DP88/0006 issued on 15 March 1990 for erecting and displaying an animated, internally illuminated, promotion sky sign in accordance with an attached endorsed plan.[82]
(2) The endorsed plan shows a 15m x 2.25m sign showing the lettering 'GoldStar' together with an animation sequence. Approval of the plan was obtained by a commercial outdoor advertising company.[83]
(3) The Council did not contest that the GoldStar sign was constructed and existed within the period 1990 to 1997.[84]
(4) On 25 March 1997, following a successful appeal, the Council issued permit TP96/324 for the direction and display of an 'internally illuminated floodlit, panel, promotion, animated sky sign' in accordance with a substituted plan. A larger sign 18m wide and 4.5m high with an advertising area of 81m2 was approved by the Administrative Appeals Tribunal.[85]
(5) While it is unclear exactly when the 'LG Electronics' sign replaced the 'GoldStar'sign, a photograph taken in or around 2000 shows the new sign.[86]
(6) The sign display changed intermittently from 2002. Photographs show the display of commercial advertising messages on the sign including Westpac in or about 2002, Bacardi in or around 2006, and 'Australia's largest Serviced Office Complex' in or around 2007.[87] In 2007 and 2008, the sign display changed intermittently. The photographic evidence shows Voodoo displayed in 2007/08 and Tom Waterhouse in November 2008.[88]
(7) Eyecorp Pty Ltd, another commercial outdoor advertising company, sought through a town planning firm approvals for the sign over the period March 2007 - December 2008.[89]
(8) In December 2009 and January 2010, the sign displayed an advertisement for 'Johnny Walker' and in 2010 for the Triple M radio station.[90]
(9) Following unsuccessful attempts to obtain further approvals, the sign ceased to be used for paid advertising in 2010. Owners corporation income from the rental of the roof sign decreased in 2009/10 and ceased no later than 30 June 2010.[91]
(10) In submissions to the Tribunal, Octopus Media conceded that the sign was not used for paid commercial paid advertising from about 2011 to 2015. This was due to an ongoing dispute between the manager of the owners corporation and lot owners about the leasing of the rooftop sign for future advertising.[92]
(11) Over the same period, the face of the sign was subject to graffiti and tagging.[93]
(12) On 6 August 2015, Octopus Media made application for a permit for 'use for an electronic major promotional sky sign'.[94]
(13) Since June 2016, the sign has been used for various advertising displays including for a radio station and a brand of motor vehicle.[95]
63 It was plainly open to the Tribunal to conclude as a matter of fact that the real and substantial purpose of the use of the rooftop level was for the display of an advertising sign. The sign was used for promotional purposes as an advertising sign since it was first constructed in about 1990 until 2011 when it was understood that planning permission for the sign had expired. Over this period of 21 years, the sign was leased to and managed by commercial outdoor advertising companies and used for commercial advertising. When advertising resumed in 2015, the sign was again used as a promotional sign on a commercial basis. Octopus Media is itself a media and advertising company.
64 Octopus Media advances a number of criticisms of the Tribunal decision. Its main contentions were that:
(1) the sign was used for the actual purpose of conveying messages and it was not essential that the message be paid for or that it related only to the promotion of commercial events or products and it could have promoted political messages or community causes without payment, or the weather or news;
(2) the real and substantial purpose of the use is most accurately described as a sign, rather than an advertising sign. This would not categorise the purpose of the use so broadly that the land could be used for a prohibited purpose;
(3) the fact that the signage structure was used for the purposes of graffiti establishes that the purpose of the existing use was wider than commercial advertising and by ignoring the actual use of the structure for graffiti the Tribunal ignored a critical relevant fact; and
(4) the Tribunal's interpretation of the ordinary meaning of advertising was not correct as a matter of law; the ordinary meaning of advertising must include graffiti.
65 The Tribunal accepted that for much of the period 2011 to 2015, the rooftop sign displayed large scale graffiti. Professor Alison Young, of the School of Social and Political Sciences at the University of Melbourne, gave evidence about contemporary graffiti in Melbourne since the 1980s. In her expert statement of advice,[96] she explained that graffiti writing revolves around the repeated writing or painting of a tag. A tag is a name selected by the graffiti writer to refer to himself or herself. The tag can be written in various ways, in varying shapes and a range of media and implements can be used to create different designs. The designs centre on the depiction of the tag, and as a result, a kind of self-advertising or self-promotion is involved. Other members of the graffiti community and the public in general can identify the graffiti writer as present in the particular location.
66 The Tribunal concluded that if the display of graffiti was a use at all, it was not a use for the same purpose as the display of advertising messages to the public.[97]
67 In my opinion, the arguments advanced by Octopus Media seek to conflate two separate and distinct activities in ordinary terminology into a single land use. The appropriate designation of the purpose of the use of land may be for an advertising sign. Alternatively, surfaces on land may be subjected to graffiti as is found in many locations around Melbourne.
68 The marking of graffiti on property if the graffiti is visible from a public place is an offence unless done with the express consent of the owner or an agent of the owner.[98] It is also unlawful if it is visible from a public place and would offend a reasonable person and does not amount to reasonable political comment.[99] The expression 'mark graffiti' is defined to mean 'write, draw, mark, scratch or otherwise deface property by any means so that the defacement is not readily removable by wiping with a dry cloth'.[100]
69 Even if it is accepted (without deciding) in favour of Octopus Media that graffiti in an advanced or stylised form is a modern form of art marked onto walls or surfaces visible from public locations and created by the use of shape, colour, abrasion based around a tagging theme, this does not assist Octopus Media in its contentions. It is an entirely different activity from that of the display of advertising signs. It conveys no message or communication promoting goods or services in any way. Advertising occurred at the rooftop level of the land under the aegis of commercial outdoor advertising companies. On the evidence, the rooftop level was not used for the promotion of political, community or philanthropic purposes. It was not actively used by the owners corporation at all over the period from 2011 to 2015.
70 It was clearly open to the Tribunal on the evidence before it to arrive at the conclusions that it did as to the appropriate designation of the purpose of the use of the sign and the rooftop structure described in ordinary terminology. These conclusions are all matters of fact for the Tribunal. As a result, grounds 4 and 5 fail.
Grounds 6 and 7 - did the use stop for a continuous period of two years?
71 Under s 6(4)(a) of the Act, existing use rights are lost if the use stops for a continuous period of two years or for a total of two years in any three years. Clause 63.06 of the Planning Scheme is to like effect.
72 Before the Tribunal, Octopus Media conceded that during the period from 2011 to 2015 the sign was not used for the display of paid advertising.[101] The Tribunal found that the use of the rooftop level for the purpose of displaying of an advertising sign stopped over the period from 2011 to 2015. Any existing use rights that may have existed ceased under s 6(4) and cl 63.06 of the Planning Scheme.[102]
73 Octopus Media submits that the Tribunal's finding was not open on the evidence before it. Alternatively, it contends that the Tribunal failed to consider its submissions and evidence that the sign was being used for the purposes of a sign by reason of a combination of factors, and failed to provide adequate reasons.
74 The combination of factors relied on by Octopus Media amount to factual assertions and contentions intended to show that the sign was still 'used' for the purpose of a sign despite a lack of physical use. They may be summarised:
(1) the rooftop space was occupied by the sign and sign structure and was not used for any alternative, competing or different purpose;
(2) the use of a sign does not require frequent and ongoing activity;
(3) the fact that the sign did not display commercial advertising did not mean that the sign was not in use;
(4) the sign was kept in a state where it could immediately display a paid advertisement again;
(5) the sign and rooftop space remained substantially in the same state;
(6) use of the sign was not totally abandoned over the four year period; and
(7) the sign was used by third parties for graffiti even if not actively used by the owners corporation.
75 The Tribunal held that the hiatus in actual use through the display of commercial advertising on the sign was not just for a short period, but continued for at least four years from 2011 to 2015 albeit that the sign structure remained in place during this period.[103] After reviewing the evidence at some length, it found that the use for the purpose of the display of an advertising sign stopped over this period. Any existing use rights that may have been established prior to 2011 ceased after two years and no longer applied.[104]
76 The submissions now made by Octopus Media were all put to the Tribunal. The sign and rooftop structure remained in place over the four year period but the sign was not used for advertising purposes. There is no evidence the rooftop level was used at all by the owners corporation or by the advertising companies that had formerly leased or managed the sign and sign structure.
77 It was clearly open on the facts before the Tribunal for it to conclude as it did that the use of the sign for advertising purposes stopped for a period exceeding two years. The outcome arrived at by the Tribunal is no different from that which would result if an existing building or structure with an existing use right was left disused and unoccupied for a period exceeding two years. Repetition to this Court of the same factual arguments as were put to the Tribunal does not take the situation any further.
78 The facts of the present case are clearly distinguishable from those considered by the Full Court of the Supreme Court of Victoria in City of Nunawading v Harrington[105] in which it was held that physical use of the subject land was not necessary for it to be used for the purpose of a bakery. In this case, the subject land was rezoned as residential in 1968. The premises ceased to be used to make bread in 1974, but recommenced in 1977. During this period, the ovens and equipment were left intact and set up for baking. There was regular movement of personnel and materials in and out of the premises, and the premises were kept in order and maintained as part of a large, integrated and indivisible business.[106]
79 In its reasons, the Tribunal fully addressed the contentions advanced by Octopus Media as to graffiti, and intention to abandon the use.[107] Land use is determined in an objective, not a subjective manner. As Kitto J said in Shire of Perth v O'Keefe,[108] a purpose is to be identified as the end for which is can be seen that the premises are being used at the relevant date.[109] Here, the Tribunal found on the facts that the use of the rooftop level had ceased for a period greater than two years.[110]
80 As for the adequacy of reasons, the Tribunal's decision contains a clearly discernible path of reasoning which explains why the Tribunal decided as it did. The reasons are given in considerable detail and enable a court to see whether they involve error.[111] In my opinion, they do not. As a result, grounds 6 and 7 fail.
Ground 8 - did the Tribunal fail to consider the existing sign structure in the permit proceeding?
81 Octopus Media submits that the Tribunal failed to consider the ongoing existence of the sign structure in the permit proceeding. It relies on the existing sign structure as a comparator to the position that will obtain if a permit is granted for the sign, and contends that the Tribunal should have taken into account the ongoing existence of the sign.
82 It is plain that this submission must fail at a number of levels. First, the Tribunal was well aware of the existence of the sign, its dimensions and area. It was also well aware of the supporting structure having seen and reviewed numerous photographs and plans. Secondly, as the Tribunal members say in note 1 of the Tribunal decision, they have considered the submissions of the parties, together with all of the written and oral evidence and other material tendered by the parties. Thirdly, the Tribunal gave consideration as to whether there was a statutory basis for the responsible authority to require the removal of the signage structure ultimately declining to make the second declaration sought by Octopus Media. Fourthly, the Tribunal gave extensive consideration in the permit proceeding as to whether a permit should be granted as sought by Octopus Media for an 'electronic major promotional sky sign' under the relevant provisions of the Planning Scheme.[112]
83 In the permit proceeding the Tribunal commenced with a number of salient observations about the case that Octopus Media had presented:
(1) the sign application was a repeat appeal for the same use and site as was considered in an earlier VCAT proceeding;[113]
(2) the visual implication of the two proposals (and the existing sign) were virtually the same;[114]
(3) the Council's planning policies in relation to advertising signs in the Yarra environs had not materially changed since the 2010 proceeding;[115]
(4) no other material change of circumstances (in a planning context) had been brought to the Tribunal's attention;[116]
(5) while Octopus Media had provided the Council with a planning report prepared by Urbis, and the Council had provided a copy to the Tribunal, Octopus Media did not refer to or materially rely on the report at the time of the hearing, and made only a passing reference to it.[117] The Tribunal had regard to the Urbis report did not attach great weight to it, as the author was not called to give evidence;[118] and
(6) Octopus Media had called no expert evidence at all in the permit proceeding.[119]
84 The Tribunal reviewed the zoning of the land, the relevant clauses of the Planning Scheme and the decision guidelines for advertising signs in cl 52.05.3.[120] The Tribunal considered the policy for the Yarra River Environs in cl 22.07 noting that the Council seeks through its planning policy to limit signage in this area to what is necessary for business identification. The Council sought to avoid large scale billboards and other forms of promotional signs on the Melbourne skyline when viewed from the Yarra River corridor, and had been relentless and consistent in this planning strategy over many years.[121]
85 The Tribunal concluded that the Melbourne city skyline from the south bank of the Yarra River was of particular significance, and the proposed sign would be highly visible from many areas along the south bank from various locations both by day and night.[122] The Tribunal did not agree that the proposed sign would integrate physically or visually into the architecture of the building on which it sits, or add in some way to the built form. The Tribunal did not agree with Octopus Media that the sign would be only a small element in the overall view within the Yarra River corridor, or be unobtrusive. It would not contribute positively to the vibrancy and activity of the Melbourne CBD.
86 The Tribunal agreed with the previous Tribunal decision,[123] to the effect that this section of the Yarra River's northern viewshed is close to compliance with Council's policy.[124] It would be wrong to compromise its quality in even a small way without a very good reason.[125] Council's advertising sign policy for the Yarra River Environs area in cl 22.07 of the Planning Scheme was clear in its purpose and intent, and had been consistently and effectively applied over many years.[126]
87 In balancing the relevant factors, and in the absence of any expert evidence and with only very limited submissions by Octopus Media on the merits aspect of the permit application, the Tribunal determined that a planning permit should be refused.[127]
88 The Tribunal noted the submission of Octopus Media that it was an exceptional circumstance that there was already an existing sign structure in place in its discussion of whether the case could be classified as an exceptional case for the purpose of the table to cl 22.07 of the Planning Scheme, and the 'special comments' in the table to cl 22.07 for a sky sign.[128]
89 The Tribunal gave consideration to the significance of the existing sign structure and considered that the complex history and pre-existence of the sign was at least of some relevance.[129] However, it was of the view that while relevant, the pre-existence of the sign will rarely be a determinative factor as to whether the use should continue, and was not a determinative factor in the permit proceeding.[130]
90 The Tribunal gave significant consideration to the ongoing effect of the existing structure as part of its consideration of the merits of the permit proceeding. It did not consider that this factor was determinative, or offset the other factors. The weight to be given to the ongoing effect of the existing structure was a matter for the Tribunal to determine.[131] The Tribunal is an expert body and is the appropriate body to decide merits issues of proposals before it.[132]
92 This ground entirely relies on the earlier grounds, and makes no additional allegation of error of law. As all other grounds fail, it follows that ground 9 fails also.
93 All of the grounds of appeal proposed to be relied on by Octopus Media fail. It is appropriate to give leave to appeal as to grounds 1 to 7, but to dismiss the appeal. Leave to appeal is refused in relation to grounds 8 and 9. The originating motion between parties dated 9 January 2017 will be dismissed.
[1] Octopus Media Pty Ltd v Melbourne City Council [2016] VCAT 2101 ('Tribunal decision').
[7] The grounds of appeal as they appear in the draft notice of appeal dated 16 January 2017, being exhibit PS-14 to the affidavit of Patricia Saw affirmed 16 January 2017, have been renumbered.
[10] Ibid; see also Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55-56 [28]-[30]; Metricon Homes Pty Ltd v Softley (2016) 49 VR 746, 751-755 [11]-[21]; Abercrombie v Salta Architects [2017] VSC 180 [10]; Beman v Boroondara City Council [2017] VSC 207 [15].
[11] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-336 [11].
[14] Ibid [42], [45], [48], [53].
[22] Transcript of Proceedings, Octopus Media Pty Ltd v Melbourne City Council (Supreme Court of Victoria, S CI 2017 00029, Garde J, 20 June 2017) 17, 19-18, 5.
[23] Citing City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645, Dorrestjin v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295, 300; Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1, 25; Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138, 144; APN (Outdoor) Trading Pty Ltd v Melbourne CC [2012] VSC 8 [59] and Stonnington CC v Southern Property Corporation Pty Ltd [2006] VSC 435 [21].
[24] Kraan v Cardinia SC [2006] VCAT 1629; Wellington v Surf Coast SC [2011] VCAT 2317; Matthews v Bayside CC [2013] VCAT 1262; Ackerman v Mornington Peninsula SC [2010] VCAT 911.
[26] Gyurcsik v Greater Dandenong CC [2001] VCAT 1520; Port Phillip City Council v Beckman (2003) 14 VPR 190.
[36] Beckman v Port Phillip CC [2001] VCAT 444 [15], [16].
[37] Gyurcsik v Greater Dandenong CC [2001] VCAT 1520 [50], [51]; Port Phillip City Council v Beckman (2003) 14 VPR 190, 196-200 [17]-[30].
[42] Ibid 384 [78] (citations omitted).
[44] Ibid 46-47 [47] (citations omitted), see also 31 [4].
[46] Ibid 519 [39] (citations omitted).
[47] Act s 4(2)(k).
[49] Act s 97N(1)(a).
[60] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1, 11; Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400 [15]; Roads Corporation v K-Line Mobile Mechanics Pty Ltd [2011] VSC 475 [8]; Spirovski v Univest Assetts Merchants Syndicators Pty Ltd [2013] VSC 728 [18]; Karakatsanis v Racing Victoria Limited [2013] VSCA 305 [28].
[61] Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442 [56].
[62] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76].
[69] Ibid [66(d)]; see also Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 154.
[74] Tribunal decision [42], [45], [53].
[75] Myers v Medical Practitioners' Board of Victoria (2007) VR 48, 58-59 [41]-[44].; Laukart v Knox City Council [2011] VSC 630 [18].
[76] Applicant's outline of submissions dated 30 May 2017 [85] citing Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535; Cascone v Whittlesea SC (1993) 80 LGERA 367, 381-382.
[77] Applicant's outline of submissions dated 30 May 2017 [85] citing Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535; City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645.
[79] Ibid 246-247 [65], [67]-[69].
[80] Ibid 247 [70] referring to Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758; KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2004] QPEC 31; [2005] QPELR 28; Claude Neon Ltd v City of Perth [1987] WASC 254; City of Kensington v Claude Neon Ltd (1979) 22 SASR 91; Claude Neon Ltd v City of Prospect (1984) 12 APA 470; Gawler & Barossa Jockey Club Inc v Town of Gawler [1995] SASC 5241; (1995) 64 SASR 598.
[81] APN (Outdoor) Trading Pty Ltd v Melbourne CC (2012) LGERA 231, 248 [76].
[107] Tribunal decision [83]-[113].
[110] Tribunal decision [103], [116], [118].
[111] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [49], , 501 [54]; East Melbourne Group v Minister for Planning (2008) 30 VAR 121 180 [225], 195 [308].
[112] Tribunal decision [127]-[178].
[113] Owners Corporation RP 5395 v Melbourne City Council (Unreported, Victorian Civil and Administrative Tribunal, Member Read, 23 March 2010)
[123] Owners Corporation RP 5395 v Melbourne City Council (Unreported, Victorian Civil and Administrative Tribunal, Member Read, 23 March 2010).
[131] Boroondara CC v 1045 Burke Road Pty Ltd (2015) 207 LGRA 153, 181 [126], [128].
Octopus Media Pty Ltd
Melbourne City Council [2017] VSC 429
(2007) 18 VR 48
(2016) 49 VR 746
(1984) 56 ALR 295
(1972) 128 CLR 1
(1973) 129 CLR 138
(1998) 194 CLR 355
(2009) 239 CLR 27
(2012) 250 CLR 503
(2013) 249 CLR 332
(1962) 107 CLR 142
(1964) 110 CLR 529
(1993) 80 LGERA 367
(1979) 22 SASR 91
(1995) 64 SASR 598
(2013) 252 CLR 480