VBI Properties Pty Ltd v VCAT & City of Port Phillip [2001] VSC 22

I would with respect adopt that passage as being as relevant, in the present case, to the decision of the Tribunal, as to the decision of an inferior court. In the light of my other findings, it cannot be said that the making out of ground (a) of Part A of the orders for review is fundamental to the decision of the Tribunal so as to lead to a decision to quash the ruling of the Tribunal.

200. The claim of the applicants is that as the result of representations made by Council officers and the conduct of the Council and its officers prior to and at the time of VBI's acquisition of the building, the Council is estopped from denying:

(a) that shortly before its acquisition by VBI the building was being used for the purpose of a residential building.

(b) that after the acquisition of the building by VBI it was being used for the purpose of a residential building initially by VBI and more recently by MTS.

207. As stated in paragraph 17 above, no transcript of the evidence was available, and again I rely principally on the Tribunal's account of what was said by the witnesses. On this issue I was also assisted by the notes of Ms McIndoe, solicitor for the mortgagee of the building, who had been present at parts of the hearing before the Tribunal.

210. The claim was based on the evidence of Mr Townshend, who said that prior to his purchase of the property, between 11 and 15 January 1987, in order to ascertain whether a planning permit was required, he had had a conversation with Mr Widdicombe, a junior town planning officer of the Council. The Tribunal said of that conversation:

Mr Townshend states that Mr Widdicombe said his proposal would be regarded by council as a residential building. Mr Townshend said that when he asked Andrew Widdicombe for confirmation in writing, he was advised that he would need to formally apply for confirmation and the letter would be referred to the head planner. He handwrote a request for confirmation on the spot, but did not retain a copy. Council also has no copy of such request for confirmation in its files. The only reference to anything written is a reference in a letter dated 29 January 1987 from George Bennett, Town Planner with the City of St Kilda . . .

I refer to your letter of the 16th January 1986. I can confirm that a Town Planning Application for a Youth & Student Hostel would be considered under the Melbourne & Metropolitan Planning Scheme definition of "residential building".

Mr Townshend did not wait for written confirmation from the Council but instead went ahead and entered into a contract for the purchase of 2 Enfield Street, St Kilda on 21 January 1987. This was over a week prior to receipt of the planning department's alleged characterisation letter dated 29 January 1987. Under cross-examination, Mr Townshend gave evidence that the contract of sale permitted him a `let-out' if the confirmatory letter did not arrive. However, when the contract of sale was produced on day six of the hearing, this matter was not raised again. My reading of the contract of sale is that there is no shred of special condition permitting an `out' if that written representation from the council was not forthcoming. In other words, it was an unconditional contract of sale.

There are other instances of gaps/deficiencies in the evidence given by Mr Townshend. For example, Mr Townshend gave oral evidence of his representation to council that he was targeting `travellers, youth groups and students'. His written request for characterisation is missing. However the reply dated 29 January 1987 is headed `Re: Proposed Youth and Student Hostel' with the word `travellers' missing. At best, all that can be said is that Council only partly answered his question.

[After receipt of the letter of 29 January 1987] Mr Townshend went away, checked the planning scheme himself and decided privately that his proposal did not require planning permission as it had existing use rights.

225. It is not in issue that Mr Townshend is a solicitor, who at the relevant time had experience in conveyancing and in the application of planning law in that context.

228. The notes taken by Ms McIndoe on the sixth day of the hearing, the accuracy of which was not challenged, under the heading "DT" for "evidence of David Townshend" contain the following passage:

Produced contract to purchase. Knew they couldn't deliver vacant possession b/c lease of garage undisclosed so knew I could walk from contract if I needed to.

There is no reference to this evidence in the decision of the Tribunal, and it is clearly relevant to the finding that there was no `let out' in the contract of sale.

234. Section 14 of the Act provides that the duties of the Council, as responsible authority for the administration and enforcement of the planning scheme are:

(a) to administer and enforce the planning scheme; and

(aa) to enforce any enforcement order or interim enforcement order relating to land covered by [the planning scheme]; and

(b) to implement the objectives of the planning scheme; and

(c) to comply with [the] Act and the planning scheme; and

(d) to prove information and reports as required by the regulations.

240. In Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 92 ALR 93 at 109, Gummow J quoted with approval what he described as the "generally accepted principle" from Halsbury's Laws of England, 4th ed, vol 44 "Statutes" para 949 in the following terms:

Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.

His Honour went on to consider at some length a number of possible exceptions to that principle, none of which is applicable in the present case. The effect of that principle is that prima facie the claim of the applicants must fail.

245. However, Mr Wright submitted that that principle did not apply where the representation made was one of fact as opposed to law. The representations in issue here related to how the Council would treat the application in terms of land use characterisation, which was a question of fact. He relied on the judgment of Windeyer J in Brickworks Ltd v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 where His Honour said at 577:

The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. . . . But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. . . . It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 was relied on. . . There the Corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the Corporation had in effect said to the respondent company there, "you do not need our permission; we have no discretion to prevent your action". In the present case, on the other hand, the Council said in effect, "you do need our permission; we have a discretion which we have exercised in your favour". It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn.

249. In my view, that passage is not applicable to the matter with which I am concerned. It is in effect argued for the applicants that the representation on which the applicants claim to have relied was akin to that made in Southend-on-Sea Corporation, as summarised by Windeyer J. The argument is that it was a representation which led Mr Townshend to conclude, after his examination of the planning scheme, that his proposed use was protected by existing use rights, and thus, it was a representation that, as a matter of fact and law, the Council had no discretion to prevent him from proceeding with that use. Assuming, without deciding, that the Council officers represented unequivocally to Mr Townshend that the building was at the relevant time a "residential building" for the purposes of the planning scheme, and that his proposed use would also be use as a "residential building", that was not a representation of the kind which was made in Brickworks, to the effect that the Council had a discretion which it had exercised irrevocably in favour of the applicant for a permit.

252. Gummow J in Minister for Immigration v Kurtovic quotes a number of judicial and other observations setting out justifications for the principle set out in paragraph 47 above. It is not necessary to reproduce those observations here. Suffice it to say, that the distinction between a representation of fact and a representation of law does not appear to me to have any relevance to the justification for, or the operation of, the principle.

255. Southwell J considered the principle in Shire of Kilmore v Dally [1989] VicRp 26; [1989] VR 314 where it was submitted that a municipal council was estopped from denying that it had the power to grant a particular planning permit. After considering a number of authorities his Honour concluded at 321-2:

But perhaps the dictum most apt for the present case is that of Lord Greene MR in Minister of Agriculture and Fisheries v Hulkin (unreported) quoted by Cassels J in [Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148] at p. 154:

The power given to an authority under the statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel.

See also R v Rushbrooke [1958] NZLR 877. And in Rhyl UDC v Rhyl Amusements Ltd [1959] 1 All ER 257, at p. 265, Harman J in dealing with the question of estoppel from denying the validity of a lease said:

If the plaintiffs were private people this would be a strong plea, but in my judgment a plea of estoppel cannot prevail as an answer to a claim that something done by a statutory body is ultra vires.

See also Nicholas v State of Western Australia [1972] WAR 168, per Jackson CJ, at p. 174.

In my opinion, the Shire cannot here be estopped from denying the existence of the power to grant the respondents' application. The logic of the issue might be tested by asking: What if a neighbour of the respondents, aggrieved by notice that the Shire intended to grant the application, and, having standing to sue, claimed an injunction restraining the Shire from the ultra vires act?

The conduct of the Shire qua the respondents could not constitute an answer to the claim.

I would, with respect, adopt those observations, which are apposite in the present context.

266. For these reasons, ground (a) of Part B of the orders for review must fail, and grounds (b) and (c) become irrelevant. I have already dealt with ground (d) (see paragraph 17 above).

270. There will be orders that the orders for review be discharged and the matters remitted to the Tribunal for determination according to law. Counsel may wish to make submissions as to costs, and as to the continuance of the stay.