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[2018] VSC 353
General information, not legal advice.
Supreme Court of Victoria
2018-06-29
GARDE J
Original judgment source is linked above.
PLANNING - Challenge to findings by the Victorian Civil and Administrative Tribunal - Tribunal an expert body - Findings open on the evidence and not irrational or illogical -Application for leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
1 Datta Yoga Centre Australia Pty Ltd ('the applicant') seeks leave to appeal, and if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal ('the Tribunal') to affirm the refusal of Wyndham City Council ('the Council') to grant a permit for use and development of land as a place of worship.
2 Since 1 February 2016, the applicant has been the owner of land at 33-49 McLeans Road, Little River, Victoria ('the site'). The land is in the Green Wedge Zone under the Wyndham Planning Scheme ('the planning scheme') and abuts properties used for residential and agricultural purposes.
3 In an application in late July 2016, the applicant sought a permit from the Council to use and develop the site as a place of worship. This involved the conversion of an existing dwelling to a place of worship; the division of an existing outbuilding into meeting rooms; the construction of a new outbuilding to be used for yoga and meditation; and the construction of a car park for 18 vehicles. The applicant proposed a maximum of 60 persons on the site at any one time.
4 Council's refusal is dated 9 February 2017 and was on four grounds:
5 The applicant sought review of the Council decision by the Tribunal under s 77 of the Planning and Environment Act 1987 (Vic) ('PE Act'). The review was heard by a planning member of the Tribunal on 13 and 14 September 2017.
6 Prior to the Tribunal hearing, the Council prepared draft permit conditions which it considered the permit should contain if it were to be granted. The conditions included:
7.00am - 12.00 midday (opens at 7.30am for morning prayers and worshipping)
5.00pm - 9.00pm
7 In substance, s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') provides that a party to a proceeding in the Tribunal may appeal from an order of the Tribunal on a question of law, with leave of the Trial Division of the Supreme Court ('the Court') (where the Tribunal is constituted by a non-judicial member).
8 In Secretary to the Department of Premier and Cabinet v Hulls,[1] the Court of Appeal gave detailed consideration to the question of when leave to appeal will be granted under s 148(1) of the 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.[2] 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.[3] 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.[4]
9 The Victorian Civil and Administrative Tribunal is an expert tribunal. Thus, it has been said that the Court should confine itself to inquiring whether, on any reasonable view of the evidence, the Tribunal's decision on a question of fact can be supported. The Court is to bear in mind that the matters before it are areas in which members of the Tribunal have special expertise and experience, which the relevant legislation plainly intends them to employ. The Court should be slow to conclude that on no reasonable view could the Tribunal decide a particular matter of fact as it has.[5]
10 In Versus (Aus) v ANH Nominees Pty Ltd, Croft J said as to the exercise of the Court's jurisdiction to review decisions of the Tribunal under s 148 of the VCAT Act: [6]
[A]ny appeal is dependent upon two important qualifications. First, that the appeal be on a question of law and second, that the Court gives leave to appeal.
The legislative policy underlying these provisions is that:
VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal. [7]
It follows that '[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal.'[8]
The leave requirement under s 148(1) is designed to maintain this position...
11 Pagone J said in Commissioner of State Revenue v Frost:
The requirement for leave under s 148(1) of the VCAT Act "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal." It also confers a discretion about whether to grant leave which an applicant must persuade the Court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave. It will ordinarily be necessary (in addition to a clearly articulated question of law) for an applicant to make out a prima facie case and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[9]
12 Courts are to respect the role of a tribunal as entrusted by the legislature, rather than actively looking to locate error. In Roncevich v Repatriation Commission, Kirby J said:
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties.[10]
13 Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:
This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law...[11]
14 The Court must recognise the 'forensic realities' of the manner in which a case was put to the Tribunal, and to which the Tribunal's reasons have responded.[12]
15 The Tribunal must act fairly and according to the substantial merits of the case.[13] It is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent it adopts those rules, practices, or procedures.[14] It may inform itself on any matter as it sees fit.[15] The Tribunal is entitled to have regard to matters put before it during a hearing, whether in writing or orally through submissions or evidence.[16]
16 Permit conditions are important safeguards intended to achieve planning objectives or standards, or to limit or define use or development, obviate or minimise noise, traffic, road use, parking and other impacts on local residents.
17 It is fundamental that the Tribunal carefully examine conditions proposed by an applicant or responsible authority to protect residents from loss of amenity caused by over-intensive use or development of land. Ultimately, it is the applicant that must satisfy the Tribunal that there is a net community benefit that would be occasioned by the proposed use and development.[17]
18 At the Tribunal hearing the applicant and the Council were represented by town planners. The applicant made submissions and led evidence from a town planner, traffic engineer and an acoustics engineer. The Council made submissions. Four resident objectors appeared and made submissions.[18]
19 There was no controversy as to the applicable provisions of the planning scheme to the proposed use and development. There was no dispute as to the policy framework or the applicable policy guidelines under the planning scheme. There was no issue of law or interpretation raised by any party for decision by the Tribunal. All parties focussed their submissions on the planning merits of the proposal.
20 The Tribunal was called on to decide whether a permit should be granted and, if so, what conditions should apply.[19]
21 The Tribunal held that there were four key issues in assessing the applicant's permit application:
22 The Tribunal reviewed the evidence as to each key issue. It decided that no permit should be issued for the use or development of the site, and upheld the Council's decision.[20] The Tribunal gave detailed reasons as to why the applicant was unsuccessful on each key issue.
Issue 1 - Would the use and development be consistent with the Green Wedge Zone and planning policy?
23 The Tribunal considered the site, the proposed use and development, the relevant provisions of the planning scheme, and the evidence and submissions of the parties at some length, arriving at the conclusion that the proposed use was unduly intensive for the location.
24 The Tribunal gave five reasons for its conclusion. In summary, they were:
(a) The proposal included that the place of worship be open for 70 hours per week and for every day of the year. This was excessive, in the context of access being from a local road, the site's proximity to a low-density residential precinct and there being no other businesses with similar operating hours in the area.[21]
(b) The scale and intensity of the proposed use would remove the land from being used for agriculture, contrary to one of the key policy objectives of the Green Wedge Zone. As no proposal was put by the applicant for the use and management of the remainder of the land, it had to be concluded that the whole of the land would be removed from agricultural use.[22]
(c) Approval of the proposed use and development would be inconsistent with uses encouraged in the Green Wedge Zone, such as agriculture, tourism, renewable energy and stone extraction. It was unlikely that the use of agricultural machinery, irrigation, fertilizers and animals on nearby land would be compatible with the quiet contemplation required for a place of worship.[23]
(d) The Tribunal was not persuaded that the intensity of the use was clearly portrayed in the application, submissions or evidence. All referred to a limit of 60 persons on the site at any one time. This was presented as being up to 60 persons per day, consistent with the current practices described by the applicant as at the time of the hearing. However, the evidence indicated that the place of worship could have a constant flow of people coming and going during its hours of operation. A worst case scenario would be that up to 60 people arrive and depart, being replaced by a continuous flow of people throughout the day. This scenario was possible under the application and conditions sought by the applicant, and would be significantly more intensive than the residential or other uses on nearby land.[24]
(e) None of the attendees live in the local area. Attendees would travel considerable distances to worship, possibly multiple times a day, which suggested that there would be a constant flow of people and the site would be busy for long hours every day. Additionally, this suggested that the place of worship has little connection to Little River and was unlikely to provide social or economic effects to that community, as encouraged by planning policy.[25]
Issue 2 - Does the development respond to the site's context and planning policy?
25 The Tribunal considered the proposed development including the size, scale and location of the new outbuilding, and decided that it was unacceptable for two reasons. The first was its close proximity to a neighbouring dwelling. The second reason was the footprint of the proposed outbuilding, which would be substantially larger than others in the area. [26]
26 The Tribunal noted the failure of the applicant to provide a landscaping plan, or propose landscaping, which could diminish the visual bulk and size of the new outbuilding as viewed from the neighbouring dwelling.[27]
27 These considerations led the Tribunal to conclude that the proposal failed on the second key issue:
I am persuaded that the location and size of the outbuilding and the lack of landscaping responds poorly to the character of the area and the site's context, and this a further determinative reason for my decision to refuse to grant a permit.[28]
Issue 3 - Would the use and development adversely affect the amenity of neighbouring properties?
28 The Tribunal then reviewed acoustic evidence and the possible impacts on neighbouring properties of car park noise, noise from ceremonies conducted outside the buildings, noise from people congregating outside and walking from one building to another, and from equipment such as air conditioning, heating and amplifiers. It also considered possible lightspill caused by vehicles leaving the site and from external lighting around the buildings and car park. The Tribunal concluded that the proposal would cause adverse amenity impacts on neighbouring properties:
... I agree with the responsible authority and the respondents that the dispersed distribution of activities in three buildings would be likely to generate a constant flow of people between the buildings. I think that movement of people between the buildings is likely to include conversation that would disturb the amenity of nearby residents particularly at night.
With regard to lightspill, I think that it would be usual in this area that external lights around outbuildings are visible from time to time. The difference with this proposal is that it is likely that outdoor lighting will be used every night of the year to assist people to move between the buildings and the car park. The lights would be visible from McLeans Road and in nearby dwellings, particularly the dwelling to the southwest.
I agree with the respondents any external lighting will be intrusive because it would be inconsistent with a context that includes darkness and limited artificial lighting. I am not persuaded that permit conditions that lighting be baffled would have satisfactorily managed this change to the appearance and amenity of the area.
With regard to illumination from vehicles leaving the site, I think that this, like lightspill is a matter that contributes to the factors that suggest this activity is not appropriate in this area. On its own it may be a minor irritant, but it arises from a level of activity that would be uncomfortable and out of place in this area, and that is inconsistent with the policy framework of Little River having only limited further development.[29]
Issue 4 - Would the use and development generate unacceptable traffic?
29 After reviewing the evidence of the applicant's traffic engineer and other evidence, the Tribunal was left in doubt as to the intensity of use and consequential traffic generation:
I generally accept [the traffic engineer's] evidence that McLeans Road and Little River Road can accommodate modest increases in traffic. They are sealed roads with generous grass verges, and low levels of traffic. I accept that if the attendance was limited to 30 to 40 persons per day, there would be no adverse impacts on the roads.
However, if the intensity of use comprises continual turnover of up to 60 persons over ten hours per day, the traffic impacts could be significant and unacceptable. As the Tribunal has found, more intensive uses should be located where they can have access to a higher order road, rather than drawing large number of traffic into quiet local streets.
I am persuaded there is sufficient doubt regarding the intensity of use and the consequential traffic generation that I cannot be confident that the traffic impacts would be acceptable.[30]
30 The proposed grounds of appeal relied on by the applicant are:
Ground 1: Constructive failure to exercise jurisdiction
In dismissing the application for review, the Tribunal constructively failed to exercise its jurisdiction because:
(a) it assessed the planning permit application made by the [applicant] and, in particular, the likely intensity of use of the proposed place of worship on the basis of a 'worst case scenario'; and
(b) it failed to consider (or to actively engage with) the applicant's submissions that:
(i) the number of attendees at the proposed place of worship and therefor its intensity of use could be managed through the imposition of permit conditions; or
(ii) [not pressed]...
Ground 2: No evidence to support findings/irrationality
In dismissing the application for review, there was no logical basis or probative evidence to support the Tribunal's finding that:
(a) there could be up to 60 people arriving and departing, to be replaced by a continuous flow of people over 10 hours throughout the day at the proposed place of worship;
(b) the "whole of the land" (i.e. the land not being used for buildings) would be permanently removed from use as agriculture;
(c) the proposed place of worship would be unlikely to provide social or economic benefits to the Little River community;
(d) the conversation in the flow of people between the buildings on the [site] would disturb the amenity of nearby residents; and
(e) it could not be confident that traffic impacts would be acceptable and, therefore, the impacts were taken to be unacceptable.
Accordingly, the Tribunal fell into jurisdictional error because it was not open or not available to the Tribunal to make these findings, or, alternatively, it was irrational for the Tribunal to make these findings.
31 Grounds 1(a), (b)(i) and 2(a)-(c) inclusive relate to issue 1. Ground 2(d) relates to issue 3. Ground 2(e) relates to issue 4. The applicant does not challenge the Tribunal's finding on issue 2, where the Tribunal rejected the scale and location of development on the site, and the lack of landscaping. As the Tribunal said, its findings on this issue were a further determinative reason for its decision to refuse to grant a permit.
32 The parties rely on the affidavits of their solicitors, which exhibit the evidence and submissions before the Tribunal. There was no objection to the receipt of the affidavits and exhibits and there was no cross-examination.
33 I have considered each of the proposed grounds of appeal relied on by the applicant. In summary, they fail for the following reasons:
(a) the Tribunal is an expert tribunal;
(b) the Tribunal decision was made on the planning merits;
(c) the issues raised are disputed issues of fact for the Tribunal to decide;
(d) there is no question of law raised in the proposed grounds of appeal that has any real prospect of success;
(e) there is no real or substantial argument to be put that an error of law exists;
(f) the findings of the Tribunal were open to the Tribunal, and were not unreasonable or irrational;
(g) there is no error of jurisdiction;
(h) in any event, the Tribunal would have declined to grant a permit because of the scale and location of proposed development on the site, and the absence of landscaping;
(i) this was a further determinative reason given by the Tribunal as to why the application failed and is not challenged by the applicant;[31] and
(j) as a result, there is no injustice to the applicant if the Tribunal decision stands.
34 I now turn to the evidence and submissions relating to each ground.
Ground 1(a) - the Tribunal's failure to exercise jurisdiction
35 The applicant submits that the Tribunal fell into jurisdictional error and failed to discharge its statutory role when it assessed the application by reference to a 'worst case scenario'. It says that the 'worst case scenario' had no factual foundation.
36 The applicant relies on the principles stated by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2):
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances...[32]
37 The passage states the important principle that a failure by the Tribunal to deal with a claim raised on the evidence and submissions before the Tribunal can constitute jurisdictional error. The principle arises if a claim raised in the proceeding is or could be 'dispositive of the review'. A failure to consider such a claim can constitute 'a failure of procedural fairness' or a failure to conduct the review required by the empowering enactment. Jurisdictional error can also arise if the Tribunal misunderstands or misconstrues a claim or evidence advanced by a party and bases its conclusion, in whole or in part, on the claim or evidence so misunderstood or misconstrued.
38 The applicant referred to the part of the Tribunal's decision where the Tribunal dealt with the intensity of the proposed use, concluding that it was unduly intensive for the location.[33] In substance, the applicant said that the Tribunal had assessed the intensity of the use on the basis of a condition on use restricting the number of worshippers on the land to 60 worshippers at any one time. The Tribunal observed that while the total number of people at any one time may be up to 60 persons, the number of worshippers through the day could be many times that number.[34] While this was a worst case scenario, the Tribunal nonetheless considered that it was a scenario that was possible under the conditions sought by the applicant.[35]
39 While the Tribunal said that it was not persuaded that 'the intensity of the use has been clearly portrayed in the application, submissions or evidence',[36] the applicant nonetheless contended that the matter had been sufficiently clarified and ought to have been clearer than the Tribunal considered. It said that while this was a matter that got away from the applicant's representatives at the time, it was corrected in questions during the second day of the Tribunal hearing.
40 The applicant also submitted that there was no factual foundation for the worst case scenario. There are not the number of people in the applicant's community who could give rise to a continual flow of 60 persons per hour over the course of a day, whether a weekday, weekend or festival day.
41 In support of its submission, the applicant highlighted various parts of the evidence before the Tribunal:
(a) The applicant's town planning report attached to the application for review stated that expected patronage would not be more than 60 persons on-site at any one time. On some festival days, a table showed a maximum number of 50-60 worshippers while on other days numbers were less.
(b) The same report stated that temple visiting numbers on a daily basis would vary from 30-40 worshippers, with increased numbers for days of specific religious observance.
(c) A traffic and parking assessment accompanied the permit application to the Council. The assessment of the proposed place of worship was based on regular opening hours of 7 days a week, with temple visiting numbers on a daily basis varying from 30-40 worshippers with increased numbers of up to 60 congregants for days of specific religious observance. It was expected that approximately 35 congregants would be present at any one time. With consideration of the worship time, it was determined that the average daily traffic generated by the development would be approximately 50 vehicles coming and going from the morning and afternoon worship sessions per day. The peak hour traffic demand was expected to be 40 vehicle trips per hour based on the high demand scenario for festival events.
(d) The Council officer's report to the Strategic and Town Planning Committee of the Council stated that on significant religious or festival days, the total number of people attending the site may be as high as 90 for each period, and that the nature of worship is that some people will attend for only 15-30 minutes and some may remain on the land for longer periods.
(e) The Council officer's report also stated that for a normal worship day, the number of persons in attendance at any one time was expected to be 35 during the morning and 35 during the evening. It was expected that up to 50 worshippers may attend the morning and afternoon sessions but the staggering of attendance meant that the total number on the land would not exceed 60. The report also noted that the application sought approval to allow 60 persons on site at any one time.
(f) The Council officer noted that the traffic report provided by the applicant stated that on an average day traffic generated by the proposed development would be approximately 50 vehicle trips per day, and on a festival day the traffic generation was expected to be 40 vehicle trips per hour. According to the Council officer, this would equate to 340 vehicle movements to and from the land throughout the day (40 vehicle trips x 8.5 hours of operation). The Council officer considered that the amenity impacts associated with the number of vehicle movements including noise, traffic noise and headlight spill would disrupt surrounding land owners at a level uncharacteristic to the existing Little River Township.
(g) The Council officer's report considered objector concerns about patron numbers on the land, observing that the applicant was seeking approval for a maximum of 60 patrons at any one time and that a condition limiting patron numbers could be included on the planning permit.
42 On the second day of the Tribunal hearing, Peter Hawkins, the applicant's town planning advocate, provided an indicative table of expected arrival and departure flows. The table showed 33 visitors in the morning and 24 in the evening on a regular day, while on the weekends an inflow of 55 was shown in the morning and 40 in the evening. On festival days, 43 visitors were shown as arriving in the morning on a weekday, and 50 in the evening. On weekend festival days 65 visitors were shown as arriving in the morning and a further 60 in the evening. This information is correctly set out in the Tribunal decision.[37] Mr Hawkins concluded his submission to the Tribunal by observing that the applicant appreciated that the Tribunal needs to consider and understand what the worst case scenario would be. Curiously, it is the Tribunal's assessment of the worst case scenario of which the applicant now complains.
43 The Council submitted that the Tribunal came to its own view on the basis of all the evidence before it. It did not misunderstand its task, nor did it fail to discharge its statutory role. It is only by assessing the impacts of the proposed use and development that the Tribunal could come to a view as to whether the outcomes produced were acceptable.
44 Furthermore, the Council submitted that the applicant's submissions to the Court did not articulate its actual case advanced to the Tribunal, and did not refer to the case advanced by the resident objectors. To the contrary, the applicant sought to disavow the assumptions and case as set out in the submissions and evidence that it put to the Tribunal.
(a) it was the applicant's representative who submitted that the Tribunal needed to consider and understand what the worst case scenario would be;
(b) it is the conditions on the permit which ultimately regulate the use and development of the land and, as a result, the policy compliance and amenity impacts arising from the use;
(c) the assumptions set out in the applicant's expert witness reports were disavowed by the applicant when it sought to clarify the matter of patron numbers on the second day of the hearing; and
(d) the Tribunal had no duty to seek further clarification of the applicant's case after its representative had provided clarification on the second day of the hearing.
46 The Council also submitted that the Tribunal's conclusions as to the worst case scenario had a clear basis in the applicant's own material. The patron limit of 60 people on site at any one time was the upper limit confirmed by Mr Hawkins, for the applicant, during the hearing.
47 The Council additionally contended that the Tribunal did not fall into error by assessing a worst case scenario for a number of reasons:
(a) Unless made specific to a person (which was not proposed), a permit runs with the land. Submissions from the applicant as to a likely scenario are of little value unless the applicant proposes conditions which confine the ambit of the permission granted. The Tribunal was entitled to reach the conclusion on the evidence that the use was unduly intensive.
(b) On the first day of hearing, Mr Ludeman, a town planner retained by the applicant was questioned by the Tribunal about whether he made enquiries of the applicant or its representatives about the type of activities and attendance. When asked about draft condition 6 circulated by the Council, limiting on-site numbers to 60 at any one time without further consent from the Council, he agreed with the Tribunal that the scenario that the residents and the Tribunal were contemplating could arise under that condition, being that you could have a constant turnover of people within the scope of the condition, provided that the applicant did not have more than the specified number of people at any one time. He agreed that under the condition you could have people coming and going fairly continuously through the five hour period in the morning and the five hour period in the evening.
(c) Mr Ludeman agreed that if the application were to be approved, there should be a condition limiting the number of persons to 30 or 40 a day rather than at any one time.
(a) The town planning report, which accompanied the planning application to Council, stated that expected patronage was to be not more than 60 persons on-site at any one time.
(b) The hours of operation of the proposed use extended from 7:30am until 9:00pm.
(c) In response to a letter from the Council as to site capacity, the applicant confirmed that the application was for a maximum number of 60 worshippers on the land, and that it was expected that these numbers would be regulated by condition. Any proposed increase would require secondary consent from the Council.
(d) Condition 6 of the Council's draft conditions proposed a limit on numbers, providing that the number of persons attending the premises at any one time must not exceed 60 persons, or 90 persons for a maximum of 28 days per year, except with the prior written consent of the Council.
(e) Mr Hawkins, the applicant's town planning advocate, said on the second hearing day that it might be reasonable to assume that 40 people at any one time would equate to a maximum of perhaps 120 people per day. On a regular day or on festival days, there would be no more than 60 at any one time and a total of perhaps 180 people per day. He noted that a discussion about the condition regarding numbers on site may be necessary.
(f) Mr Hawkins proposed that the draft conditions be amended so that the numbers of persons attending the premises at any one time be capped at 40 persons, or 60 persons for a maximum of 28 days per year, except with the prior written consent of the Council. He did not offer any limitation on the total number of persons who might attend the premises on any one day, submitting that it was the numbers on site at any one time that was likely to be more critical in terms of impact, particularly noise.
49 Finally, the Council highlighted that the applicant's submissions completely overlooked the residents' case as to the intensity of use of the site since it was acquired by the applicant. The Tribunal was entitled to take the submissions and information provided by the residents into account.
50 The resident objectors appearing before the Tribunal did not make submissions to the Court. However, it is apparent that their submissions during the Tribunal hearing provided considerable assistance to the Tribunal.
51 Mr Jobling, a resident objector submitted to the Tribunal that there had been a lot of activity and several large gatherings on the site since it was purchased by the applicant. He stated that on these occasions, the applicant had in fact exceeded the number of expected patrons, vehicles and hours of operation that were now put forward in the applicant's proposal.
(a) On 18 June 2016, a spiritual leader of the group visited the site. There were more than 60 vehicles in attendance - more than three times the maximum number of cars permitted under the application. With three people per vehicle, he roughly estimated that there were over 180 people in attendance.
(b) On that occasion a food vendor truck with a noisy external generator was present. The truck supplied food to the people attending. A marquee with external lighting was erected on the land. Noise and light spill were not contained within the boundaries of the property. He personally suffered considerable disturbance, as did others.
(c) He noted that on that occasion the traffic congestion was intolerable and people had trouble navigating the access road. People were in attendance on site all day, and there was no observed break between the morning and afternoon worship sessions. The activity continued well beyond the suggested 9:00pm cut off, with people still active on the site after 11:00pm. He produced photographs of what had occurred.
(d) Mr Jobling also referred to another gathering where 40 cars were observed with an estimated 120 people in attendance. This event continued throughout a weekend and well past the hours of operation stated in the application.
(e) He referred to another large festival held between 8 and 12 February 2017. The event was not recorded in the significant days calendar included in the application. There were cars, people, movements of vehicles and continuous noise into the early hours of the following morning every day across a long weekend. He could hear people congregating in front of the existing barn-style shed and talking throughout the festivities. Vehicles were coming and going and there was a white van with a reversing beeper moving around the site until 11:00pm on the Friday night.
(f) Finally, Mr Jobling made mention of other events held on the site in-between larger festival scale events. He observed people attending those activities parking their cars off site. He said that cars seemed to come in a convoy.
53 Mr Jobling said that the expert witness reports were based on numbers provided by the applicant. In reality, the number of people who attended was much greater, and the impact predicted much worse.
54 In her submission, Ms Jobling expressed concern that the patron and car numbers on site could not be controlled. She submitted that the applicant actively rallied its worshippers through social media to increase their numbers, by advising family and friends to participate in the events, encouraging the organisation to grow.
55 Ms Jobling also submitted that at some festivals held on site, the patron and car numbers had exceeded the maximum numbers shown in the application. Her concern was external noise created by congregants after worship services, when they were gathered to the front and the rear of the property.
56 In my view, it was plainly open to the Tribunal on the submissions and evidence before it to conclude that the proposed use was 'unduly intensive' for the location. As an expert planning tribunal, the Tribunal is well equipped to resolve an issue like intensity of use.
57 The Tribunal did not misunderstand the issue, but carefully considered the submissions and evidence. It considered that the use was too intensive and inconsistent with the key policy objectives in the Green Wedge Zone. It concluded that such a use could conflict with agricultural activity on adjoining land, which was encouraged in the Green Wedge Zone. Although the effect and benefit of proposed condition 6 was a live issue before the Tribunal, no more restrictive condition was ultimately put forward by the applicant.
58 Given the submissions of the Council and the residents, it was open to the Tribunal to determine, as it did, that the intensity of use was not clearly portrayed in the applicant's documentation. There were varying and conflicting estimates from the applicant and its witnesses regarding likely attendance on the site and evidence from resident objectors of the impacts from past activities. The applicant did not call any evidence of actual or past attendance levels on the site, or produce any records of visitation levels to explain or refute previous days of high activity. The applicant's expert witnesses merely acted on the basis of instructions as to likely attendance levels.
59 There was no jurisdictional or legal error by the Tribunal on this issue. Simply put, the Tribunal evaluated the whole of the submissions and evidence before it, arriving at the conclusion that it did based on its expertise.
Ground 1(b)(i) - the Tribunal failed to consider the applicant's submissions to control attendance by conditions
60 The applicant submitted that the Tribunal constructively failed to exercise jurisdiction by failing to address its case that the use of the place of worship could be governed and limited by conditions. If the Tribunal did consider that limiting the intensity of use by conditions was inadequate or unacceptable, it was required to say why this was so.
61 The Council submitted that the Tribunal was not required to make the applicant's case for it. It was not the task of the Tribunal to create its own set of conditions and turn an unacceptable proposal into an acceptable one.[38] What the Tribunal did was turn its mind to the applicant's proposed conditions, and consider the level of attendance that might occur even if the conditions sought were imposed. This was an appropriate course to follow in accordance with the case put by the applicant.
62 It is a standard requirement that a responsible authority prepare and serve on all parties draft conditions that might be imposed by the Tribunal in the event that it is directed that a permit be issued.[39] The Council prepared 43 comprehensive draft conditions, which were circulated to the parties prior to the Tribunal hearing. The Tribunal referred to the draft conditions and their status in its opening remarks at the hearing. The draft conditions were canvassed by all parties and witnesses during the hearing. Proposed condition 6 was drawn by the Council to embody the use limitation suggested by the applicant.
63 Mr Ludeman, the applicant's town planner, raised the issue of attendance and the resulting intensity of use. This attracted a number of questions from the resident objectors and the Tribunal. In cross-examination, he observed that 160 people might visit the site in the morning and 160 in the evening, being a total of 320 people. He agreed that it was possible to have a constant turnover of people within proposed condition 6. People could come and go fairly continuously during the five hour period in the morning and the five hour period in the evening. In answer to a question from the Tribunal, he suggested a maximum limit on attendance of 30-40 persons per day. He agreed that such a condition was more onerous than the applicant had previously sought, given the continuing attendance by the congregants and the size of the membership congregation.
64 On the second day of the Tribunal hearing, Mr Hawkins, for the applicant, noted that there was confusion about the number of people on the site in terms of the people who would attend, vehicle movements and etcetera. He clarified with the applicant as to what would be a regular arrangement and said that on a conservative estimate, which would cover every eventuality, there would be a total of 120 people per day on a regular day, and 180 people per day on a festival day. In his right of reply, he contended that there was no indication that there would be a high turnover of congregants attending the site. He did not urge the imposition of any cap on daily numbers on the site.
65 The Tribunal and all parties were fully aware of the impact of past attendances and the proposed conditions provided by the Council. The Tribunal decision considered the level of restriction on use and intensity that the applicant was willing to accept. It also considered the residents' case that on a number of past occasions actual use of the site had exceeded the proposed permitted levels.
66 The Tribunal decision responded directly to the 'forensic realities' of the way the applicant put its case.[40] The issue of attendance and possible conditions is one of fact for the Tribunal to determine. I am satisfied that the Tribunal gave appropriate consideration to all suggested conditions on the evidence before it.
Ground 2 - the Tribunal made findings that were not open on the evidence
67 The applicant submitted that the Tribunal made a number of factual findings that were not open to the Tribunal on the evidence, or which did not appear to have a sufficiently probative or logical basis.
68 The Council submitted that the Tribunal's findings were open on the evidence and were not irrational. For a finding of 'no evidence', the Council submitted that there must be no probative evidence to support the finding of fact and that the error must have materially affected the decision.[41] Furthermore, an appeal to the Court is not an opportunity for a rehearing of the Tribunal decision on the merits.[42]
Ground 2(a): continuous flow of up to 60 people arriving and departing over a ten hour period
69 This ground concerns findings as to the number and pattern of attendances at the proposed place of worship. The relevant findings were:
... it is proposed that the place of worship would be open for 70 hours per week and for every day of the year. It would be open from 7am to 9pm except for the afternoon.
...
Hence, the place of worship could have a constant flow of people coming and going during its hours of operation. A worst case scenario would be that up to 60 people arrive and depart, to be replaced by a continuous flow of people through the day.
...
However, if the intensity of use comprises continual turnover of up to 60 persons over ten hours per day, the traffic impacts could be significant and unacceptable... [43]
70 The applicant advanced four reasons why it was not open to the Tribunal to conclude that there could be up to 60 people arriving and departing at the place of worship in a continuous flow throughout the day. They were:
(a) the finding made by the Tribunal was contrary to the information and clarification provided by the applicant;
(b) the finding that the proposed place of worship would operate for 70 hours a week or 10 hours a day is contrary to the application and the evidence given by Mr Ludeman and Mr Citroen;
(c) the basis on which the Tribunal made this factual finding is not articulated in its reasons; and
(d) the finding was made in circumstances where it was envisaged that conditions would ultimately control the number of people attending the place of worship.
(a) that even if the correct calculation of proposed operating hours was 59.5 hours (8.5 hours per day) or 63 hours a week (9 hours per day), that would be an error of fact and not law;
(b) this discrepancy would not have changed the Tribunal's view that the use would be out of place and significantly more intensive than the existing uses in the area;
(c) the mathematical error was inconsequential, and not a vitiating error;
(d) there was evidence to support a finding that up to 60 persons could arrive and depart in a continual flow throughout the day;
(e) there was a logical and probative basis for the finding; and
(f) arguments by the applicant as to weight, reasoning, adequacy of evidence or preference were irrelevant to the 'no evidence' ground.
72 The application stated that the proposed hours of operation of the site, once developed, would be 7:30am to 12:00pm, when the temple would close. The temple would reopen during the evening from 5:00pm to 9:00pm. This amounts to 8.5 hours a day or 59.5 hours a week. However, the hours of operation set out in proposed condition 3 of the Council's draft condition were 7:00am - 12:00pm with the temple opening at 7:30am for morning prayers and worship. Together with evening use, this amounted to 9 hours a day or 63 hours a week. On this basis, the total proposed hours of operation of the permitted use amounted to either 59.5 or 63 hours per week.
73 Although the temple would be closed as a place of worship over the period from 12:00pm to 5:00pm, this does not mean that the site would be inactive over this time. People, cars and trucks can all come and go from the site. Under the Council's proposed condition 9, deliveries and waste collection could occur between 7:00am and 8:00pm Monday to Saturday and 9:00am and 8:00pm on Sundays and public holidays.
74 The residents' submissions are again relevant to this issue. They emphasised the fact that the place of worship was open from morning to evening 7 days a week, and 365 days a year. Worship and events were commonly scheduled on weekends and public holidays. They spoke of past activities that continued well beyond the proposed hours of operation.
75 I accept the Council's submission that even if the Tribunal is treated as inaccurately calculating the operating hours of the place of worship as sought in the application, or authorised by the draft conditions, this made no difference to the Tribunal's decision. It was not a vitiating error. On any day of the year, use of the site as a place of worship would commence at 7:00am or 7:30am and conclude at 9:00pm in the evening. It was open to the Tribunal to conclude that the proposed use of the site was unduly intensive for the location. The proposed hours of operation were but one of a number of concerns that led to the Tribunal's conclusion as to intensity of use.
Ground 2(b) - the whole of the land would be permanently removed from agricultural use
76 The applicant submitted that there were two reasons why the Tribunal's finding that the proposed use would remove the site from use for agriculture was not open to it:
(a) Mr Ludeman said in substance that the balance of the site of 5.4ha could be used for agriculture if required, and that the development of the site could have no impact on the use of the site for agricultural purposes.
(b) The place of worship would not result in the removal of agriculture given that the footprint of the buildings was small and that the land would otherwise remain undeveloped and available for agriculture after development.
77 The applicant submitted that the site had not been used for a genuine agricultural enterprise in recent years and the proposed use and development made no change to the existing arrangements.
(a) In the absence of a proposal for the on-going management of the site, the Tribunal was entitled to conclude that the whole of the site would be removed from agricultural use. As an expert body, the Tribunal was able to act on the basis of its own expertise in making a finding of this nature.
(b) The finding was one of five findings, all of which indicated that the proposed use was unduly intensive. Any error as to the permanent removal of the whole of the site from use as agricultural land would not have materially affected the decision.
79 I accept the Council's submission that the finding was open to the Tribunal on the evidence:
(a) The site is owned by the applicant, which is a religious body.
(b) The application relates to the whole of the site. An approval for the use of the site as a place of worship would extend to the whole of the site.
(c) Mr Hawkins for the applicant said that the site had not been used for a genuine agricultural enterprise in recent years, and the proposed use and development made no changes.
(d) While Mr Ludeman said in his report that the balance of the site could be used for agriculture if required, he did not suggest that the applicant had ever conducted farming or agriculture on the land.
(e) Mr Ludeman also said that he was unaware of any proposed arrangement to farm, lease or licence the rear section of the land.
(f) Mr Farmer for the Council pointed out that there was no dwelling or place of residence for a farmer who may seek to farm the site as the existing dwelling was proposed to be the place of worship.
(g) No proposal for the ongoing use and management of the site was provided by the applicant.[44]
(h) The Tribunal undertook an inspection of the site.
80 I am not satisfied that the applicant has demonstrated that the Tribunal has made any error of law. On the evidence, the site has not been used for agriculture since it was purchased by the applicant. There was no proposal to use the site for agriculture, or to lease or licence the rear part of the land. There was no plan for the use and management of the whole of the land.
81 A final consideration is that this issue is again only one of multiple reasons why the Tribunal considered the proposed land use as unduly intensive for the site. The Tribunal's conclusion reflects a matter of fact alone, and is not an error of law.
Ground 2(c) - the proposed place of worship would be unlikely to provide social or economic benefits to the Little River community
82 The applicant contended that the Tribunal was in error when it concluded that the place of worship has little connection to the Little River community and is unlikely to provide social or economic effects to that community.
83 In support of this contention, the applicant referred to its submission that there was a prospect that its attendees may consider establishing homes in the Little River area and that the local petrol station would attract a higher level of custom. There was no evidence to suggest that the Little River Township would not benefit and at the very least, the Tribunal was required to find a neutral finding of fact.
84 The Council submitted that the Tribunal was entitled to infer that social or economic benefits would be unlikely. There was extensive evidence as to the nature of the proposed operations and usage of the proposed place of worship. The proposal was of a self-contained, standalone nature and none of the congregants of the applicant lived in Little River. The inference that benefits to the Little River Township were unlikely was open on the facts.
85 The Council officer's report concluded that there was no net community benefit arising from the application and that there were no economic or employment implications for Council from the application.
86 In his planning report, Mr Ludeman said that he considered that the place of worship was a benign use that would have no social or economic effects.
87 Mr Farmer, who appeared for the Council, described the Little River Township as providing a basic level of services to residents. He said that the township consisted of a convenience shop, a train station, a school, kindergarten, church and pub. He described the Council's policy as being to restrain development in the Little River Township and its environs based on significant and existing constraints and the retention of the existing rural village character. He submitted that the proposed use would not fit in with the rural village character of the Little River Township. He argued that the proposal would not provide a wider economic or recreational benefit for the wider community.
88 In his submission, Mr Jobling said that the worshippers in the centre were not local residents. They travelled from suburbs across Melbourne to attend at Little River. The proposed place of worship was not a local place of worship in the sense that local people from Little River gathered together to use a centrally located place of worship.
89 In her submission, Ms Jobling referred to the type of businesses in the Little River area as being the hotel motel, two bed and breakfasts and the general store. All of the other businesses were agriculture related. In terms of a visitor from Melbourne, there was nothing to do apart from nature related activities, having a meal and enjoying the view.
90 I accept the Council's submission. The conclusion expressed by the Tribunal that the proposed place of worship would be unlikely to provide social or economic benefits to the Little River community was an opinion plainly open on the evidence and submissions before it and within its expertise.
91 Again, the issue relates to a matter of fact, and does not involve any question of law. The issue was not dispositive of the review, but only one of a number of reasons why the Tribunal concluded as it did.
Ground 2(d) - the flow of people would disturb the amenity of nearby residents
92 The applicant seeks to challenge the finding of the Tribunal that the movement of people between the buildings is likely to include conversations that would disturb the amenity of nearby residents, particularly at night. To do so, it refers to Ms Hui's expert acoustic evidence to the effect that:
(a) noise from religious ceremonies that may occur within the existing dwelling would not adversely affect the amenity of neighbouring residential dwellings;
(b) the maximum noise levels of cars, laughter and conversation within the car park area would not exceed sleep disturbance criteria at the nearest affected residential dwellings; and
(c) based on the normal methods by which traffic noise is assessed, the additional traffic generated by the proposed use would have a negligible effect on the overall traffic noise in the area.
93 The Council submitted that the evidence as to the proposed use and development provided a basis for the factual finding that there would be movement of people between the buildings, including at night. As a result, it was open to the Tribunal to conclude that conversation was likely to occur and, in turn, that such conversation would disrupt the amenity of the area.
94 In addition to the evidence relied on by the Council, there was additional evidence before the Tribunal as to the likely impact of noise:
(a) In the Council officer's report, it was stated that the objections as to noise were agreed and that the noise impacts associated with the proposed use would cause unreasonable disturbance to surrounding residential properties.
(b) In his statement to the Tribunal, Mr Jobling referred to an incident on 7 February 2017 when noise from a group talking could be heard outside the property boundaries, and continued after 11:00pm. Additionally, during a large festival between 8 and 12 February 2017, people were congregating inside and outside the shed and could be heard quite clearly.
(c) Mr Jobling also submitted that while internal noise could be controlled to some extent, external noise could not. As one of the adjoining neighbours to the site, he and another neighbour (the closest neighbour) would be affected by additional noise coming from the newly erected shed. He submitted that from his property, he could easily hear people talking during the day and especially at night when the sound was magnified.
(d) In her submissions to the Tribunal, Ms Jobling discussed the impact of the external noise created by the congregants when they had finished a worship service and when they were gathered to the front and to the rear of the property. The noise was created when the congregants were socialising and engaging in conversation outside. Mr and Ms Jobling indicated that they were concerned about the proximity of the proposed new shed to their property, as was their neighbour.
(e) In cross examination, Ms Hui responded that she had not specifically assessed the effect of the congregation moving from one area to another, as she had been told most of the activities would happen indoors, except for the use of the car park.
(f) The Tribunal then asked Ms Hui about the noise that might be generated by a large group of about 60 people around the shed or adjacent to the house. Ms Hui said that if 60 people were outside a licensed venue, she would be concerned, but outside a place of worship she would say unlikely. However, this was not something that she had assessed.
95 It is plain that the effect on the amenity of residents caused by the flow of people was an issue of fact canvassed in submissions and evidence before the Tribunal. The Tribunal is an expert tribunal well versed in planning controversies of this nature. The Tribunal had the additional benefit of an inspection of the site and surrounding area.
(a) it relates to matters of fact;
(b) there is evidence that supports the finding;
(c) it does not relate to any question of law;
(d) no error of law has been demonstrated; and
(e) it has not been shown that the finding is dispositive of this proceeding, or was material to the decision reached by the Tribunal.
Ground 2(e) - the traffic impacts would be unacceptable
97 The applicant seeks to challenge the Tribunal's conclusion that as there was sufficient doubt regarding the intensity of use and consequential traffic generation, it could not be confident that the traffic impacts would be acceptable.
98 The applicant seeks to challenge this conclusion on two bases. First, it relies on its previous submission as to intensity of use. Secondly, it contends that the conclusion is contrary to the evidence of its traffic engineer, Mr Citroen.
99 The Council submitted that the Tribunal stopped short of making a factual finding. If, however, it was framed as a factual finding, the traffic generation finding under challenge depended on the findings about intensity of use.
100 According to the Council, Mr Citroen gave evidence on an erroneous assumption. He assumed that a range of 20 to 40 persons a day and up to 60 persons maximum on a special religious day would attend the place of worship. He agreed that if the permitted attendance was 60 persons at any one time, a wider driveway would be needed for two way movement and the site would require considerably more parking capacity.
101 Later, Mr Citroen stated that if there was an enlarged number of visitations, he would look at widening the seal at the property entrance to allow for a large number of vehicles movements in and out of the driveway and expected that Council would also require the widening of the seal between the property entrance and Little River Road to cater for high traffic volumes.
102 The extent of traffic generation and the resulting traffic impact was a controversial issue of fact before the Tribunal. The Tribunal was of the view that the uncertainty as to intensity of use led to uncertainty as to the traffic impacts and consequences. This was a view open to it, having regard to the submissions and evidence before it, particularly from the residents.
(a) the Tribunal is an expert tribunal;
(b) the determination of traffic likely to be generated by the proposed use and development, and the resulting impact, is a matter of fact;
(c) the Tribunal's views on traffic impacts occasioned by the proposed use and development were open on the evidence;
(d) there is no question of law; and
(e) there is no unreasonableness or irrationality in the Tribunal's decision.
104 For the reasons given, there is no proposed ground of appeal for which there is a real or substantial argument to be put that error on a question of law exists. The applicant has not identified any question of law that is of general or public importance.
105 The application for leave to appeal fails. The originating motion must be dismissed.
DATTA YOGA CENTRE AUSTRALIA PTY LTD (ABN 24 150 630 201)
[1] [1999] VSCA 117; [1999] 3 VR 331 ('Hulls').
[2] Ibid 335 [10]; 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] VSCA 60; (2016) 49 VR 746, 751-755 [11]-[21]; Abercrombie v Salta Architects [2017] VSC 180, [10]; Beman Pty Ltd v Boroondara City Council [2017] VSC 207, [15].
[3] Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-336 [11].
[5] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1, 11 (Stephen J), cited in ISPT Pty Ltd v Melbourne CC [2008] VSCA 180; (2008) 20 VR 447, 452 [16] (Warren CJ, Kellam and Osborn JJA); Charnley Glen Pty Ltd v Boroondar CC [2000] VSC 340, [43] (Balmford J).
[6] Versus (Aus) v ANH Nominees Pty Ltd [2015] VSC 515, [8]-[10] (citations omitted).
[7] Commissioner of State Revenue v Frost (2011) 83 ATR 832, 834 [5], citing Hulls [1999] VSCA 117; [1999] 3 VR 331; Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.
[8] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, 26 [15], citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1; Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.
[9] (2011) 83 ATR 832, 833-4 [3] (citations omitted), quoted in Versus (Aus) v ANH Nominees Pty Ltd [2015] VSC 515, [9].
[10] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 136 [64] (citations omitted), quoted in Versus (Aus) v ANH Nominees Pty Ltd [2015] VSC 515, [10].
[11] Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994), 13 (citations omitted), quoted in Versus (Aus) v ANH Nominees Pty Ltd [2015] VSC 515, [11].
[12] Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; (2005) 23 VAR 460, 470 [59].
[17] Knox City Council v Tulcany Pty Ltd (2004) VSC 375, [13(e)]; Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27, [129]-[130].
[18] Bryan Jobling; Karen Fairchild; Keith Pountney; and Martin Smith. Erin Jobling (resident) also made a submission.
[19] Datta Yoga Centre Australia v Wyndham CC [2017] VCAT 1693, [20] ('Tribunal decision').
[31] See Forster v Legal Services Board (2013) 4 VR 587, 615 [137].
[32] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, 20-21 [63] (Black CJ, French and Selway JJ), citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
[33] Tribunal decision [50], [51]-[54].
[38] Citing Prasad v Minister for Immigration and Multicultural Affairs (1985) 6 FCR 155, 170.
[39] Victorian Civil and Administrative Tribunal, Practice Note PNPE1 - Planning and Environment List General Procedures (1 December 2014) [22].
[40] Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].
[41] Citing Risi Pty Ltd v Pin Oak Holdings Pty Ltd [2017] VSCA 317, [55]-[56].
[42] Spilkin v Rosenberg [2011] VSCA 128, [42]; Finch v The Heat Group Pty Ltd & Ors [2011] VSCA 100, [21]; Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [43]-[44].
[43] Tribunal decision [47], [54] and [89] (emphasis added).
Datta Yoga Centre Australia Pty Ltd
Wyndham CC [2018] VSC 353
(2007) 18 VR 48
(2016) 49 VR 746
(2008) 20 VR 447
(2005) 145 LGERA 21
(2005) 13 VR 275
(2005) 222 CLR 115
(2013) 4 VR 587
(2004) 144 FCR 1
(2003) 197 ALR 389
(1985) 6 FCR 155