Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7

Supreme Court of Victoria|1998-07-30|Before: McDONALD, J.

For the reasons expressed I have concluded that there was error of law in the Tribunal in determining that it did not have power under s.87(1) of the Act to amend the permit, the subject of these proceedings, by deleting condition 4 of the same. Section 87(1) of the Act properly interpreted does vest in the Tribunal a discretionary power to amend the subject permit by which the appellant enjoys the right to use the land as a brothel notwithstanding that that use is a prohibited use under section 3 of the relevant zone in the Planning Scheme. That power includes the power to amend the permit by directing that condition 4 be deleted. Having regard to the fact that on the hearing of this appeal no issue was raised as to the conclusions reached by the Tribunal on planning matters and that if there was a discretion available to it, it would have amended the permit as it believed that it would be appropriate in planning terms to do so, I am of the view that it is appropriate to order and direct that the Tribunal direct the Responsible Authority to amend the subject permit by deleting condition 4 and re-numbering the subsequent conditions sequentially. I propose to make orders in accordance with the following minutes -

2. That the determination of the Tribunal be set aside.

3. That the Tribunal direct the responsible authority to amend permit "MELB2758" by deleting condition 4 thereof and re-numbering the subsequent conditions sequentially.

4. That the respondent pay the appellant's costs of the appeal as limited by s.71 of the Planning Appeals Act 1980.

5. That an indemnity certificate is granted to the respondent under s.13 of the Appeal Costs Act 1964.

I certify that this and the 16 previous pages are a true copy of the reasons for judgment of McDonald, J. of the Supreme Court of Victoria delivered on 30 July 1998.

Environment Act 1987

Appeals Tribunal Act 1984

Environment (Amendment) Act 1988

Appeal Costs Act 1964

On behalf of the appellant it was submitted that if the power vested in the Tribunal by the clear words of s.87(1) of the Act, giving it power to amend "any permit" were to be read down by reference to the provisions of the Planning Scheme, that would permit the words of the statute, the primary instrument, to be interpreted by reference to the words of a secondary or delegated legislative instrument, in this case the Planning Scheme. It was submitted that to do that would be contrary to well established authority concerning the interpretation of statutes. In Accident Towing and Advisory Committee v. Combined Motor Industries Pty Ltd [1987] VicRp 48; (1987) V.R. 529, Southwell, J at 577 citing authority stated the propositions that "regulations cannot be used so as to alter the meaning of a statute" and; "that subordinate legislation cannot widen the power granted by statute." In Webster v. McIntosh [1980] FCA 128; (1980) 32 A.L.R. 603 at 606 Brennan, J stated -

There exists the "principle of construction that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows" - Dorrestijn v. S.A. Planning Commission [1984] HCA 76; (1984) 56 A.L.R. 295 at 300; see also Parramatta City Council v. Brickworks Limited [1972] HCA 21; (1972) 128 C.L.R. 1 at 25; Woollahra Municipal Council v. Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 C.L.R. 138 at 144.

The existing right in the appellant to use the subject land is to use it for the purpose of a brothel pursuant to the permit the subject of these proceedings and in consequence of Amendment 326 and clause 15-4 of the Planning Scheme. The non-conforming use rights as provided by the permit is the use of the land as a brothel and the conditions and restrictions in the permit do not define that use - Shire of Perth v. O'Keefe [1964] HCA 37; (1963) 110 C.L.R. 529 at 535. To interpret the provisions of s.87(1) of the Act as to the discretionary power vested in the Tribunal to "amend any permit" as it appears on its face and to include the power to amend a permit by which an owner or occupier of land enjoys non-conforming use rights where such use is otherwise a prohibited use within the planning scheme in my opinion does not offend the principle of statutory interpretation referred to in Dorrestijn. The non-conforming use, in this case, that of a brothel, would still remain the same in the event of a condition of the permit being altered by amendment.

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