Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council [2001] VSC 302

Supreme Court of Victoria|2001-08-24|Before: Balmford J

For the reasons given, I find no error of law in the decision of the Tribunal. The appeal will be dismissed. Counsel may wish to make submissions as to the orders to be made consequent upon that finding.

PLANNING - Appeal from the Victorian Civil and Administrative Tribunal - the applicant was refused a permit by the respondent Council for the construction of a six unit integrated development - an application was made to the Tribunal to review the Council's decision and the Tribunal upheld the decision - the applicant now appeals against the Tribunal's decision - "existing use" provisions in town planning schemes - what existing use rights are protected by planning schemes and legislation - what effect do the provisions of the relevant enactment/s give to the protection - the distinction between "use" and "development" and the effect of that distinction. - and . - , (3), and (4). - ; ;

At a similar level of generality Kitto J, with whom Menzies and Owen JJ agreed, said in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 535 that the application of the law in a particular case was to be approached

In the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: see Mason ACJ, Deane and Dawson JJ in Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295, at p 300; Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1, at p 25; Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138, at p 144.

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