In December 1995 the Glenroy Sub-Branch gave notice pursuant to s.52 of the Planning Appeals Act 1980 that it intended to rely upon certain additional grounds of appeal including a ground that:

"There are significant adverse social and economic effects of the proposed use and development under s.60(1)(b) of the Planning and Environment Act 1987."

In accordance with directions given by the Tribunal on 12 December 1995 the Glenroy Sub-Branch gave particulars of this ground on 20 December. It is desirable to set out those particulars:

"1. The RSL is a non-profit organisation which exists to raise funds for the welfare of elderly and needy ex-servicemen and women, war widows and their dependants.

2. The Glenroy area is an area of major socioeconomic disadvantage. The funds raised by the Glenroy RSL are returned to needy persons who live in this area.

3. The Glenroy RSL has existed since 1950, and has been located on the present site at 177 Glenroy Road, Glenroy since 1954.

4. The Glenroy RSL has about 700 members, and raises funds through 40 gaming machines. 35 of these machines were recently installed, and land purchased for car parking at substantial cost to the RSL.

5. The proposed use will seriously and adversely affect fundraising by the Glenroy RSL. The appeal site is directly over Glenroy Road from the Glenroy RSL. The proposed carpark on the former Caltex site immediately adjoins the Glenroy RSL.

6. The proposed 90 gaming machine venue will undermine, and may entirely negate fundraising by the Glenroy RSL.

7. The Glenroy RSL will be completely dominated by the proposed 90 machine venue.

8. The applicant is associated with a large leading multi million dollar AFL football club. It has other gaming venues and facilities and does not require another large facility in this location.

9. The proceeds of its operations are

- not returned to needy people

- not provided as welfare

- not returned to socioeconomically deprived areas such as the Glenroy area.

10. The location of the applicant's 90 gaming machine venue next to an existing venue is contrary to current gaming machine policy and sound planning."

On 20 December 1995 an amendment to the State section of all planning schemes in Victoria was approved. That amendment (S58) provided in effect that it is planning policy that "gaming venues provide a full range of hotel facilities or services to club members" and that "gaming machines should not be permitted in shopping complexes". The explanatory report published at the time of the publication of this amendment said that it was an amendment altering

"the planning policy for gaming machines in line with government policy that gaming venues:

- should not be located in shopping complexes

- should provide entertainment and a full range of services to patrons".

The Tribunal held a further directions hearing on 22 January 1996 and senior counsel for Carlton Social Club then gave notice that his client would seek to amend its plans and proposal. Presumably these amendments were made as a result of the amendment to the State section of the Planning Scheme that I have earlier mentioned. The hearing of the appeals had been fixed for 20 February 1996 and the solicitor appearing for the Glenroy Sub-Branch submitted that in the circumstances that hearing date should be vacated, the responsible authority asked to make its determination on the new proposal and an opportunity given to objectors to submit fresh objections. He did not suggest that the amendments that had been proposed by the Carlton Social Club were incompetent. The Tribunal did not vacate the date that had been fixed. It ordered that Carlton Social Club should file and serve on the responsible authority and other parties its amended plans, any other amendments, and a schedule of the activities that it proposed should be carried out on the premises and which was a schedule fully "descriptive of such activities for approval". Further direction was given that notice of the amendments be given on the premises and by notice in the newspapers.

The amendments proposed by Carlton Social Club included using the ground floor of the premises for 80 gaming machines, bar service, liquor and a food bar with seating provided for 28 persons, that the ground floor be open to what s.3 of the Liquor Control Act 1987 describes as "authorized gaming visitors", that the first floor of the premises be open only to club members and guests but provide a members' bar, kitchen and food preparation area, seating for 48 persons adjacent to the bar and kitchen area, provision for some indoor games and various meeting and administration areas. Publication of the notice of the amended proposal elicited some further objections and submissions.

A Planning Division of the Administrative Appeals Tribunal heard the appeals between 20 and 23 February and 26 and 28 February 1996. On 15 May 1996 the Tribunal published its written determination. By that determination the Tribunal allowed the appeals in part and directed that a permit be granted to use the land as a "place of assembly (licensed non-residential club and gaming premises) for the installation and use of not more than 80 electronic gaming machines". It directed that car-parking requirements that would otherwise apply should be reduced to 69 spaces before 6 p.m. and 78 spaces between 6 p.m. and the closing of the premises to members' guests and other patrons "with 13 of such parking spaces to be provided on the land at 177 Glenroy Road, Glenroy". Condition 4 of the permit which it granted provided:

"4.(a) The use must not commence or continue, and electronic gaming machines must not be used on the premises unless 69 off-street car parking spaces to be available for occupation by cars in relation to the use are provided prior to 6.00 pm on each day when the premises are open to club members, guest and other patrons with 78 such spaces to be available when the premises are open to such members, guests and patrons between 6.00 pm and closure of the premises to such members, guest and patrons which parking spaces are to be provided on the land or nearby land to the satisfaction of the Responsible Authority but with not less than 13 such spaces to be provided on the land.

(b) Before the commencement of the use hereby permitted, and before the commencement of the use of any electronic gaming machines on the land, written approval of the Responsible Authority is to be obtained in relation to all car parking spaces to be provided pursuant to this condition other than the 13 spaces to be provided on the land at 177 Glenroy Road, Glenroy including approval of the location and layout of such spaces. The request for such approval must be accompanied by a copy of any planning permit required under the Planning Scheme to allow land other than the land to be used for parking in relation to such use of the land. Similar prior written approval must be obtained in relation to any subsequent alteration or relocation of some or all of such parking spaces being provided on land elsewhere than on the land at 177 Glenroy Road, Glenroy.

Note: Nothing in this condition or this permit removes any requirement that otherwise exists to obtain planning permission to use any nearby land for parking in relation to the use hereby permitted.

(c) In the event of the total of such car parking space provision being reduced to less than 69 spaces before 6.00 pm or 78 spaces after 6.00 pm as aforesaid, the use of the land hereby permitted and the use of electronic gaming machines on the land must cease forthwith."

Glenroy Sub-Branch now appeals pursuant to s.52 of the Administrative Appeals Tribunal Act 1984. That appeal is, of course, an appeal only on a question of law.

The appellant's contentions fell into three principal sections which, for convenience, might be described as:

- social and economic considerations;

- the amendment of the application; and

- the extent of the use and development.

Section 4 of the Planning and Environment Act sets out what are described in sub-s.(1) as "the objectives of planning in Victoria" and, in sub.s.(2) what are described as "the objectives of the planning framework established by this Act". Section 4(2)(d) says that one of the objectives of the planning framework established by the Act is

"to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land".

"(1) Before deciding on an application, the responsible authority -

(a) must consider -

(i) all objections and other submissions which it has received and which have not been withdrawn; and

(ii) any decision and comments of a referral authority which it has received; and

(iii) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(b) if the circumstances appear to so require, may consider -

(i) any significant social and economic effects of the use or development for which the application is made; and

(ii) any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

(iia) any amendment to the Planning Scheme which has been adopted by a planning authority; and

(iii) any other relevant matter."

It was submitted on behalf of the appellant, the Glenroy Sub-Branch, that the Tribunal erred in law when it held that some evidence which Glenroy Sub-Branch sought to place before the Tribunal (and which it was said concerned social and economic effects of the use of the land which the Carlton Social Club intended) was irrelevant.

As is apparent from the amended grounds filed with the Tribunal on behalf of the Glenroy Sub-Branch it alleged that there would be significant adverse social and economic effects of the proposed use and development. As I have said, it had given particulars of that allegation on 20 December 1995. At the risk of over-simplifying the case which those particulars foreshadowed, it was contended that the establishment of a new gaming venue by Carlton Social Club would seriously and adversely affect fund-raising by the Glenroy RSL, with consequent reduction in the amount of money returned by the sub-branch to needy persons who live in the Glenroy area, an area of "major socioeconomic disadvantage". The Glenroy Sub-Branch had, it was alleged in these particulars, about 700 members and raised its funds through 40 gaming machines (of which 35 had been "recently installed"). The particulars asserted that the proceeds of the operations to be conducted by the Carlton Social Club would not be returned to needy people, would not be provided as welfare and would not be returned to socioeconomically deprived areas such as the Glenroy area.

When the solicitor for the Glenroy Sub-Branch opened its case to the Tribunal he said that:

"... The Glenroy Sub-Branch, within the ambit of the RSL in Victoria generally, performs an important role in the community. It is the safe-keeper in some ways of the traditions of the Australian servicemen. As part of the organization of the sub-branches it runs a club which operates gaming machines but essentially they are non-profit organizations. The money that is raised from gaming machines is poured back into the community, poured back in a number of ways."

He referred to organizations such as the St John's Ambulance, the Boy Scouts and Girl Guide movements, the Salvation Army, and various senior citizens' centres as the objects of this assistance. Having described to the Tribunal the fact that the Glenroy Sub-Branch had recently borrowed $250,000 to improve their facilities, expand their parking area and provide an additional 35 gaming machines, he went on to say that:

"The granting of this particular application would have a social-economic effect that is easy to quantify in terms of the effect that it will have in its effect on the overall community, that the Glenroy and Pascoe Vale RSLs are able to support."

Reference was then made to various earlier decisions of the Planning Division of the Administrative Appeals Tribunal including, in particular, Belmuda v. City of Dandenong (1992) 8 A.A.T.R.326.

It soon emerged in the course of discussion that the Chairman of the Tribunal considered that the Belmuda Case may not have been decided correctly and at several points in the course of the debate he asked, in effect, why it is a "planning consideration" for the Tribunal to prefer one social club to another or one charity to another. He said, again in the course of debate:

"The argument against you [i.e. the Glenroy Sub-Branch] might be that all this has nothing to do with planning. It's not the role of planning to finance charities or to decide where a potential resource would go."

Counsel for Carlton Social Club intervened in the debate and indicated, in the most general way, that the Club "returned a proportion of its proceeds to charitable organizations apart from ... junior football education and lots of other community beneficial things". The Chairman then asked the solicitor for the Glenroy Sub-Branch, "You can give lots of evidence perhaps about what percentage of your funds or your revenue from gaming goes to these worthy causes but is it relevant?" The solicitor for Glenroy Sub-Branch pressed the point and sought to call evidence which he described as evidence about

"the amount of money that the Sub-branch has expended in order to upgrade their services and introduce 35 gaming machines, and the effect that the granting of this application will have on their operation and their ability to support existing welfare organizations within the area if (Carlton Social Club's application were to succeed]."

The Chairman asked him how long the evidence would take and was told that evidence-in-chief would occupy twenty minutes. The Chairman went on:

" ...

we don't think this is relevant. Now, it's because of doubts about its relevance that was causing me to put things to you and trying to get you to argue as to why it was relevant and the arguments that you put forward haven't persuaded us. We're aware that some further argument is to come. I think the expedient course at this stage is to say we don't want to hear that evidence on the basis that as at present advised we don't reckon it's relevant. But if it becomes necessary in fairness we could hear the evidence at a later stage if we become persuaded that it is relevant. This will give us the opportunity of hearing what Mr Jones (counsel for another objector) and Mr Hooper (counsel for Carlton Social Club) have got to say about these matters. It doesn't mean that we have shut out for all time necessarily from hearing this if fairness requires that we should. I think that's probably the best way to proceed."

In fact the subject was not revisited in the course of the case for Glenroy Sub-Branch and the ruling was not varied at any time during the hearing. Curiously, however, counsel for the Carlton Social Club, having earlier contended that evidence of charitable donations by the Glenroy Sub-Branch was irrelevant, asked the chief executive officer of the Carlton Social Club in the course of his giving evidence-in-chief to the Tribunal whether the club was involved in a number of charitable organizations and whether it made various donations to such purposes; he then tendered a short memorandum setting out the general nature of the assistance given by the club to welfare, charitable and other general generally similar organizations.

"One suggested effect relied upon by the Glenroy RSL was the suggestion that the establishment of this proposal would cause a loss of funds to local charities. This was put on the basis that the RSL supports various worthy local sporting and charitable activities with funds raised from the operation of its gaming machines. It appears that the operators of gaming machine premises, whoever they are, are effectively obliged to make some such contributions. The GMC Act (Gaming Machine Control Act] specifies how portions of gross takings from machines are disbursed. Part 2 of the GMC Act provides for amounts and levies, including percentages to be given as prizes and payments to the consolidated fund for a community support fund and other purposes. Section 127 provides for levies for a hospital and charities fund and mental hospitals fund. For these purposes it makes no difference whether the takings are those of the Glenroy RSL or the Applicant. The Glenroy RSL does not devote all its profits to charitable purposes. It has spent substantial parts of its takings on acquiring new facilities and improving facilities for its members. We take it to be a 'non-profit' organisation in the sense that its profits are not devoted to direct financial gains for its members. However, its decision to devote some of its profits to charitable and sporting purposes is its own, and there seems to be no reason why it could not change its mind about these matters at any time. It is not clear to us why these circumstances should entitle it to a protection of its present monopoly by excluding competition from the Applicant. The Applicant is also 'non-profit' in the above sense and devotes its profits to sporting objectives and, it was suggested, to other charitable purposes. We do not accept that one existing licensed gaming club should be entitled to protection from the planning laws or discretionary decisions made under those laws from competition from other such clubs. We do not regard this as a significant social effect of the sort that should be taken into consideration pursuant to s.60(1), and we do not think that the circumstances appear to so require."

Section 60 of the Planning and Environment Act is not easy to construe. At first sight the contrast drawn between matters which a responsible authority (and the Tribunal on a rehearing) "must consider" and those which it "may consider" "if the circumstances appear to so require" is stark and suggests a distinction between obligation and unfettered discretion. The nature and extent of the difference, however, may not be as obvious as that first sight might suggest.

It is to be noted that sub-paragraph (iii) of paragraph (b) refers to "any other relevant matter". It would be strange if a responsible authority had a completely unfettered discretion whether or not to consider a relevant matter before deciding on an application. Yet that was the effect of the construction which Carlton Social Club urged should be given to the subsection. Similarly, it would be strange if the responsible authority had an unfettered discretion whether or not to consider a significant social effect of the use or development for which the application is made when it is said in s.4(2)(d) of the Act that one of the objectives of the planning framework established by the Act is to provide "for explicit consideration of social and economic effects when decisions are made about the use and development of land". Again, this was the effect of the construction urged on behalf of Carlton Social Club. That is, it was submitted that the subsection provided for the exercise of a discretion ("if the circumstances appear to so require) whether to enliven a further discretion (the responsible authority "may consider"). The only guidance for the exercise of these discretions was said to be the general scheme of the Act.

What then is meant by "if the circumstances appear to so require"? Does it confer a discretion on the decision-maker? Is it intended to mean "if it is made to appear to the responsible authority" that any of the four specified topics does bear upon (or may bear upon) the subject matter of the decision? Does it mean "if it is made to appear to the responsible authority that there is a case for enquiry whether one or other of the four specified subject matters bears upon its decision"? Does it mean only "if it is made to appear to the responsible authority that one or other of the four specified subject matters is relevant to the decision which it must make"? (If that is the meaning, why then does sub-paragraph (iii) refer to any other "relevant" matter? Is the inclusion of reference to any other "relevant" matter to be regarded as a drafting slip, as Carlton Social Club submitted?)

I do not think that we need to decide what is the true construction of these words to dispose of the present appeal. Further, I do not think that we should do so, there being no sufficient factual material before us because of the Tribunal's ruling. If "the circumstances appear to so require" I am of the view that the responsible authority (and thus, on a rehearing, the Tribunal) is then bound to have regard to whichever of the four specified subject matters bears upon the issue. I do not accept that the expression "may consider" is to be read in s.60(1)(b) as conferring a discretion on the decision-maker but rather, in the words of Jervis CJ in argument in MacDougall v. Paterson [1851] EngR 973; (1851) 11 C.B. 775 at 773; [1851] EngR 970; 138 E.R. 672 at 679 "the word 'may' is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise". (See Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation (1971) 127 C.L.R.106 at 134-135 per Windeyer J; see also Mitchell v. The Queen (1996) 184 C.L.R.333 at 345-346). To adopt and adapt the language of Windeyer J in Finance Facilities, the responsible authority (and the Tribunal) are each given power to consider the matters mentioned in sub-s.(1)(b) in forming their decisions but upon proof of the particular case out of which the power arises, that is "if the circumstances appear to so require", the responsible authority, or the Tribunal (as the case may be) is then bound to consider them.

In this matter, the Glenroy Sub-Branch was precluded by the Tribunal from putting forward evidence in support of the contention which it sought to make that "the circumstances appear to so require" the consideration of what it alleged was a significant social and economic effect. The Tribunal thus erred in law. Not having received the material which the Glenroy Sub-Branch sought to put forward, it was not then open to the Tribunal to dispose of the matter by saying, as it did in its decision, that it would not choose between competing licensed social clubs. It did not address, and by its ruling had disabled itself from considering, what was said to be the social or economic effect which the circumstances appeared to require it to consider: that the charitable work undertaken by the Glenroy Sub-Branch in its local area would be reduced, if not destroyed, and not replaced.

In the course of the argument before us it was suggested that the Tribunal may have wrongly concluded that social effects are not relevant to planning matters. I need not decide whether the several references made by the Chairman in the course of argument before the Tribunal to what he called "planning considerations" or the analysis that was made of the section in the Tribunal's reasons properly found that conclusion. It is enough to say that s.4(2)(d) of the Planning and Environment Act makes plain that it is part of the so-called "planning framework" that explicit consideration be given to social considerations. Some of the comments made by the Chairman in the course of the debate before the Tribunal, and indeed some of the reasons given by the Tribunal, might appear to have proceeded from an assumption that no relevant distinction could be drawn between the activities of the Glenroy Sub-Branch and the Carlton Social Club. If that was so (and again I need not decide it) there was no material before the Tribunal which would permit an informed comparison between the activities of the two organizations. There was no evidence (and no other material) which revealed how much of the proceeds of gaming operations conducted by the Glenroy Sub-Branch had been or would be applied to particular uses and very little material about its charitable or benevolent activities. At the time that the Tribunal made its ruling that the evidence which it was proposed to tender was irrelevant, there was no evidence of what the Carlton Social Club did in this regard. Indeed, the evidence that was given later about the activities of the Carlton Social Club was anything but detailed. It was, then, simply not possible to say, at the time of the ruling or at the time of the Tribunal's decision, whether there would be any social or economic effect that flowed from granting Carlton Social Club's application or whether that effect would, or might, properly be described as "significant". Nor was it possible to say whether "the circumstances appeared to require" that the Tribunal consider this matter.

There was some very short argument addressed to us about the meaning of "significant" in the expression "significant social or economic effects". I do not think it right to attempt some general description of the kind or kinds of effect that could properly be classed as "significant". Presumably, the word is used in one of its ordinary meanings, namely "important, notable". But I do not think it necessary or desirable to hazard some opinion divorced from particular facts about what may or may not qualify as "significant" in this context.

For completeness I should say that "if the circumstances appear to so require" the responsible authority, or the Tribunal, is to consider the matters mentioned in s.60(1)(b). But the Act does not say what weight they are to be given; it is for the decision-maker to decide what weight is to be given to them.

As is apparent from what I have said, I regard the drafting of s.60(1) as difficult. The section is one that has to be applied by responsible authorities in considering any application for a planning permit. Obviously the circumstances presented by planning applications can vary greatly. There should be no doubt about the matters to which responsible authorities should have regard in deciding these applications. The drafting of this section should be reconsidered.

The conclusion I have reached on this issue is sufficient to dispose of the appeal to this court, but since I am of the view that the appeals to the Tribunal should go back for rehearing, it is as well if I say something shortly about some of the other subjects that were debated before us.

It was submitted on behalf of the Glenroy Sub-Branch that it had been denied procedural fairness by the course that was followed by the Tribunal in connection with the amendments of the proposal put forward on behalf of Carlton Social Club. It was said that the amendment not having been made until just before the Tribunal reserved its decision, Glenroy Sub-Branch was denied a sufficient opportunity to deal with the amended proposal and, in particular, was denied a sufficient opportunity to deal with questions of car-parking. It was also submitted that there was no power in the Tribunal to permit the amendment which it did.

It was further submitted that it was impermissible for Carlton Social Club to propose to satisfy car-parking requirements by making arrangements on land other than the land the subject of the application then under consideration. This was said to follow either from the particular requirements of the Planning Scheme or from principles of the kinds discussed in Pioneer Concrete (Qld.) Pty. Ltd. v. Brisbane City Council (1980) 145 C.L.R.485, especially at 500, 504 per Stephen J, and 514 and 518 per Wilson J. It was further submitted that the condition 4(a), which I have set out above, and which the Tribunal imposed, was too uncertain.

Because I consider that the appeals to the Tribunal should go back for rehearing, it is not necessary to decide whether Glenroy Sub-Branch was denied procedural fairness when the Tribunal did not rule upon the application to amend the proposal until the dying moments of the hearing. I would tend to the view that it had sufficient notice of the kind of case which it had to meet and that it was not denied procedural fairness in this respect. Nevertheless, although proceedings before the Tribunal are informal (Administrative Appeals Tribunal Act s.35(1)) there is much to be said for adopting a practice of ruling on proposed amendments at the first opportunity that is reasonably available after the proposals are put forward because, at least in many cases, this will avoid any suggestion that opposite parties are left in doubt about the case that they must meet. I am not, of course, to be taken as laying down some absolute rule to that effect; I am not. Nevertheless, there is, as I say, much to be said in favour of the general approach that I have mentioned.

As for the contention that the Tribunal lacked power to permit the amendment, it may be enough to say that no such contention was put to the Tribunal. For that reason, I would very seriously doubt that the point can now be raised by the appellant. (see Rampling v. Emergency Services Superannuation Board Full Court reported only at (1994) 6 V.A.R.199 especially at 213.) In any event, however, I do not consider that the amendment allowed was an amendment that could not be permitted pursuant to the powers given to the Tribunal by s.53 of the Planning Appeals Act. It is unnecessary to rehearse much of the argument that was advanced in support of the proposition that the amendment amounted to an impermissible transformation of the application. For my part, I doubt that there is much assistance to be gleaned from the various decisions to which we were taken, of courts in other states upon different legislative schemes in which there is not to be found any provision equivalent to s.53. Even if there is to be implied some limit to the apparently ample powers given to the Tribunal by s.53 (and I am not to be taken as deciding that there is any such limitation on the power conferred by the section) I do not accept that the changes that were proposed and allowed in this case transformed the application into a proposal radically different from the one originally put forward or amounted to the substitution of a fresh application. It may be noted that the Act expressly permits the Tribunal to allow amendment of the use of the land that is proposed and permits it to allow a change of the land the subject of the application. Plainly, then, the section is intended to confer wide powers of amendment on the Tribunal and the amendment that was allowed here was not of either of the kinds expressly mentioned in the section. In my view, the changes made to the proposal in this matter were not of the significance asserted by the appellant.

The Metropolitan Regional section of the Planning Scheme makes elaborate provision about provision of car-parking (particularly in cls.14-15 and 19). It may be accepted that, as counsel for Glenroy Sub-Branch said in the course of argument before us, often it is car-parking arrangements which most excite the attention of objectors. I do not, however, accept that an application for a permit must be refused in all cases in which the car-parking arrangements that are proposed by the applicant or are to be imposed by the authority granting the permit are not themselves either the subject of an application for permit being dealt with at the same time or the subject of some existing permission. The car-parking provisions of the Planning Scheme make it plain that car-parking requirements can be dispensed with altogether. The provisions make it plain that car-parking may be provided on or off the subject land and may be provided on the street, or on what the scheme calls "nearby land".

In the course of the hearing before the Tribunal the solicitor for Glenroy Sub-Branch said that he accepted that it was open to the Tribunal to prescribe a condition that suitable car-parking arrangements be provided as a condition of use of the premises. It may very well be, as was suggested in the course of argument before us, that the point having been conceded, it is not now open to the appellant to say that a condition of the kind imposed by the Tribunal could not lawfully be imposed. (See Rampling v. Emergency Services superannuation Board supra.) In the end, however, I do not accept the fundamental proposition which underpins the present appellant's contention, namely that the Planning Scheme requires that car-parking be provided on land the subject of an application for permit. Far from cl.19 of the Metropolitan Section of the scheme suggesting that that is so, its whole tenor is to the contrary of the contention now made. It is not to be thought that the applicant for a permit for use must anticipate any and every piece of land that may be required for car-parking use and include that in the application for a permit.

Nor do I accept that the present application was properly to be seen as one of several applications to be advanced in piecemeal fashion. The use to which Carlton Social Club wished to put the land at 177 Glenroy Road was use as a gaming venue and licensed club. Under the Planning Scheme, that use would require the provision of parking (prima facie on the land) unless the responsible authority dispensed with or modified that requirement.

In Pioneer Concrete supra, a majority of the court held that under the City of Brisbane planning provisions, an applicant for consent to use land for a particular purpose may not make application piecemeal but must apply at the outset for the entirety of the use in question and, consequently, in respect of the whole of the land devoted to that use. As Stephen J pointed out, the expressions "entirety of use" and "land devoted to that use" are expressions which necessarily lack precision and it follows that there may be difficult questions of fact and degree that arise in this connection. (See e.g. the later decision of the High Court in North Sydney council v. Ligon 302 Pty. Ltd. (1996) 185 C.L.R.470; see also Vegas Nominees Pty. Ltd. v. City of Werribee (1994) 14 A.A.T.R.73.)

It may be that the decision of the court in the Pioneer Concrete Case was affected by the definition of "use" that was to be found in the provisions which it was called on to construe. "Use" was defined in those provisions as including any use "which is incidental to and necessarily associated with the lawful use of the land in question". "Use" is defined differently in the Victorian Act. I need not decide, however, whether these differences matter. I am content to assume, without deciding, that the principle considered in the Pioneer Case applies in Victoria.

It is clear from the Planning Scheme, and particularly cl.19 of the Metropolitan Section, that the use for which the Carlton Social Club sought permission and the land devoted to the use was the use as a gaming venue of 177 Glenroy Road. This case is altogether different from the case considered in the Pioneer Case where removal of materials extracted from a quarry was held to be an integral part of the use of the land as a quarry. The proposed use of the premises in this case being use as a gaming venue, it was accepted by the applicant for the permit that car-parking must be provided. There was no agreement about how that car-parking might be provided and, as the case developed in the Tribunal, various means of satisfying the requirements that might be imposed were advanced, including providing car-parking on land other than the land the subject of the application for the permit. No doubt the use of that land for parking purposes will require separate application for a permit if use for that purpose is not now permitted. Under the Tribunal's direction, use of the premises as a gaming venue could not begin until the necessary parking arrangements were made and thus, if permits are needed for use of the land on which the parking is to be provided, use of the premises cannot begin until those permits are obtained. But for the reasons I have given, I am not persuaded that the Tribunal is bound to refuse the application until applications for permission to park on the two other pieces of land have been pursued.

The criticisms of condition 4 of the permit that were foreshadowed in the grounds of appeal to this court were not developed in argument. It may be noted, however, that the language used in the condition ("nearby" land) is the language of the Planning Scheme. Further, it is to be recalled that the full expression used in the condition is "on the land or nearby land to the satisfaction of the responsible authority". In those circumstances I do not consider that it is obvious that this condition is attended with such uncertainty that the Tribunal erred in law in imposing it. The point not having been developed in argument, I say no more about it.

Because the appellant was denied the opportunity to advance the case which it sought to make under s.60(1)(b) of the Act, I consider that the appeal to this court should be allowed, the determination of the Tribunal set aside and the matter be remitted for rehearing.

It was submitted that the rehearing should be by the same Division of the Tribunal that heard the matter lest still further time be lost in the disposition of the matter than is absolutely necessary. On balance, I consider that, given the course that the matter followed at the first hearing, it would be better to order that the rehearing be before a differently constituted Division of the Tribunal. I would, however, order that the matter be heard and decided again without the hearing of further evidence, except evidence relating to the alleged social and economic effects of the use or development for which the application was made.

Mr Hooper, notwithstanding what you have said, we take the view here that in all the circumstances the costs should simply follow the event. They will be as limited by s.71 and we propose to give the respondent a certificate.

The order of the Court will then be in accordance with these minutes:

Appeal allowed.

Determination of the Tribunal set aside.

Matter remitted for rehearing (with the hearing of further evidence, such further evidence to be limited to

(a) such further evidence as the Tribunal sees fit to receive of and concerning any relevant change in circumstances since the original hearing of the application by the Tribunal, and

(b) the matter of significant social and economic effects mentioned in s.60(1)(b)(i) of the Planning and Environment Act 1987)

before a differently constituted Planning Division of the Tribunal.

Order that the second-named respondent pay the appellant's costs of the appeal as limited by s.71 of the Planning Appeals Act 1980.

An indemnity certificate is granted to the second-named respondent under s.13 of the Appeal Costs Act 1964.