Popular Pastimes Pty Ltd v Melbourne City Council & Anor [2007] VSCA 188

Court of Appeal (Vic)|2007-09-11|Before: WARREN CJ, NEAVE JA and OSBORN AJA

The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but 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.

**67 The provisions of s.74(1) regulate the use and development of land by reference to considerations first of location and secondly of size. Section 74(1) refers to three categories of land in respect of which a permit for use or development for the purpose of the operation of a brothel is prohibited. It then contains a prohibition by reference to intensity of use.

69 The first three prohibitions give effect to the objects stated at s.4(d) of the PC ACT, while the fourth gives effect to other objects.

70 It is difficult to gain much as to the proper construction of s.74(1)(a), (b) and (c) simply from the use of the words "the proposed brothel" in (d), because it is concerned with a different object. Sub-section (1)(d) is concerned with control of the scale of use of the brothel operation which will result from the grant of the permit application in issue. It reflects the intention expressed in the Second Reading Speech to strictly limit the number of rooms in brothels save in exceptional circumstances.

71 This is not to say however that s.74(1)(d) does not assist in interpreting s.74(1) as a whole. It cannot have been the intention of Parliament to limit the application of s.74(1)(d) to the establishment of new brothels. If it were so limited, then it would remain open to a brothel operator to evade the prohibition upon more than six rooms, by making sequential permit applications for components each of less than six rooms. Thus, in the present instance if s.74(1)(d) related only to new brothel operations, it would have been open to the owner to include within the additions to the existing brothel building extra rooms taking the total above six. This would defeat not only the background statement of intention contained in the Second Reading Speech, but achieve a result which is contrary to the apparent intent of the section itself.

72 If, however, the opening words of s.74(1) do introduce a control pursuant to s.74(1)(d) which applies to additions to existing brothel uses then they cannot be read as doing otherwise with respect to s.74(1)(a), (b) and (c). The introductory words of s.74(1) cannot mean one thing with respect to s.74(1)(a), (b) and (c), which follow, and another thing with respect to s.74(1)(d) which also follows.

73 In my view this is the determinative consideration in this case. If s.74(1) were restricted to locational criteria only and directed solely to the spread of brothels in accordance with the primary concern expressed in the Second Reading Speech, I would be prepared to read it in the manner for which the appellant contends. The fundamental difficulty confronting the appellant is that s.74(1) is not so limited. It extends to the pursuit of objects other than locational objects and does so by way of a limitation upon brothel operation size. It is clear that this element of s.74(1) is intended to apply to alterations to existing brothel operations and this being so, s.74(1) as a whole must be interpreted as having this scope.

74 The introductory words of Section 74(1) must be given a consistent meaning in accordance with the passages first quoted above from the Project Blue Sky case, so that they have the same meaning with respect to each of the four subparagraphs which follow.**

75 The matters specified in s.73 as matters to be considered before deciding on an application for a permit for a use or development of land for the purpose of the operation of a brothel, include two which are expressed as follows:

(j) the proposed size of the brothel and the number of people that it is proposed will be working in it;

(k) the proposed method and hours of operation of the brothel.

76 Unlike s.74(1)(d) neither of these matters refers in terms to the "proposed brothel". What is referred to are proposed characteristics of the brothel operation. In my view these references do not assist in the interpretation of s.74(1). They are the natural way to describe components of a permit application.

**77 It was submitted on behalf of the appellant that to construe s.74(1) so as to apply to additions to existing brothels would have absurd and unreasonable results.

78 There are three answers to this proposition. First, s.74(3) demonstrates Parliament addressed this issue and expressly excluded categories of development, in respect of which, in its view s.74(1) might occasion hardship. In these circumstances there is no room to derive an implication s.74(1) should be further read down to minimise such hardship. Secondly, insofar as it is legitimate to construe the Act by considering its relationship with the Scheme (which may be doubted) cl.62.02 of the Scheme provides a series of exemptions to development controls, which provide substantial relief from the hardship that would otherwise result from a total prohibition of future development.[12] It thereby demonstrates the "hardship" complained of is a function both of the PC Act and the detailed provisions of the Scheme. It is not a necessary consequence of the PC Act. Thirdly, the restriction of the application of s.74(1)(d) to applications for the establishment of new brothels would as I have said, itself produce absurd results.

79 It was further submitted s.74(1) of the PC Act should be read down so as not to interfere with vested property rights. Section 74(1) does not in my view interfere with existing property rights, rather as Gillard J observed, it imposes constraints on potential proposed use and development. More precisely it precludes some applications for permits for use or development for the purposes of a brothel operation. In so doing it is fundamentally no different from many planning controls which prohibit new use and development for some purposes but allow new use and development for other purposes.**

80 For the above reasons the decision of Gillard J should be upheld and the appeal should be dismissed.

[2] There appears to be some controversy as to whether there must be some ambiguity before a court may, under s 35 of the Interpretation of Legislation Act 1984, resort to extrinsic materials: see D C Pearce and R Geddes, Statutory Interpretation in Australia (6th ed, 2006), 89-92. I make no incursion into that debate, except to say that, even if it is allowable to refer to extrinsic materials in this instance, then it is of little assistance.

[3] Unless the scheme itself specifically requires a permit with respect to such individual matters.

[4] Cf Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 (Kitto J at 535).

[10] 21 October 1994 House of Assembly.

[11] At 535. See also the discussion of the purposive definition of brothel in Samuels v Bosch [1972] HCA 46; (1972) 127 CLR 517.

[12] By reason of cl.62.02 internal reconfiguration to provide for a new waiting room or wash room, does not require a permit. Nor in most cases would tree removal require a permit. Further, if tree removal of protected vegetation were required for safety reasons, it is doubtful the permit would be "for the purpose of the operation of a brothel" in any event. The above examples of alleged prohibition of new waiting room and wash room development, and potential prohibition of tree removal were ones advanced on behalf of the appellant as demonstrating absurdity. They demonstrate rather that the scheme addresses these issues.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Legislation Act 1984

Country Planning Act 1961

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Legislation Act 1984

Country Planning Act 1961

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