Victorian Civil and Administrative Tribunal|1999-04-08|Before: Mr P

Vomanda Pty Ltd v Melbourne CC [1999] VCAT 554 (8 April 1999)

APPEAL NO. 1998/73765 APPLICATION NO. TP 95/1042

HEARD AT MELBOURNE ON THURSDAY 26 NOVEMBER 1998

Amend planning permit number TP 95/1042 issued on 27 February 1996 allowing the erection and display of two panel sky signs to extend time for expiry of the permit beyond the 4 years specified in condition 1(a).

The land in Certificate of Title Volume 10057 Folio 281.

An irregular but roughly rectangular area of land on the eastern corner of the intersection of Kavanagh Street with Kingsway (or the south eastern corner if Kingsway is taken to run north to south) with frontages of 54.78m to the eastern side of Kingsway, 26.1m to the southern side of Kavanagh Street and with an area 1592m2.

Central Melbourne - Southbank Zone and in Height Control Area 30 under the Melbourne Planning Scheme.

Mr Martin Williams, town planner of the City of Melbourne, appeared for the Responsible Authority. He presented written and oral submissions.

Mr P Bisset, solicitor of the firm of Deacons Graham James, solicitors, appeared for the Requester Vomanda Pty Ltd. He presented written and oral submissions and called Mr Vernon Casey, a director of the requester company, as a witness.

Various plans, photographs and other documents were tendered as attachments to written submissions or as separate exhibits. The evidence submitted in documentary form, together with the written submissions, have been retained on the file of the Tribunal. The written submissions include a second written submission by Mr Bisset and a written response thereto on behalf of the Responsible Authority lodged after the hearing pursuant to leave granted at the close of the hearing.

The following reasons were written when the new Melbourne Planning Scheme based on the Victorian Planning Provisions was anticipated but not in operation. On the 4 March 1999, while this document was being typed, the new planning scheme came into operation.

On that day Amendment SR5 to all planning schemes in Victoria was approved by the Minister for Planning and Local Government. I am not aware at this stage as to whether it has come into operation, but it effects changes to existing planning schemes in relation to outdoor advertising signs.

Of course decisions have to be made on the basis of applicable planning schemes as they stand at the time of the decision. In these circumstances it is convenient to publish the reasons set out below as originally written and to give the parties an opportunity to advance further submissions limited to the implications of the application of the new planning scheme provisions, before a final decision is made.

1. This case concerns two sky signs on the roof of premises at 62 Kingsway, South Melbourne. Each sign is 18.25m long and 4.46m high so that each has an area of 81.4m2. Each is located above the parapet of the host building at a height of over 12m.

2. The host building is on the corner of Kingsway with Kavanagh Streets, South Melbourne. It is on the upstream or eastern side of Kingsway where the King Street bridge descends, after passing over the Yarra River and through the Crown Casino building, to the general level of Kingsway and South Melbourne in that vicinity. It is also just north of where the West Gate Freeway crosses Kingsway. It is on the fringe of the redeveloping area where redevelopment has been spreading out, over recent years, from the Southbank development and later the Casino development along the south bank of the Yarra River.

3. The signs in question are in position having been erected pursuant to planning permit No. TP 95/1042 issued on the 27 February 1996. That permit was granted by the Administrative Appeals Tribunal (predecessor to this Tribunal) in its determination of Planning Appeal 1995/35595. That appeal was heard by a single member of the Tribunal on the 17 January 1996 and the determination with reasons are contained in a document dated 12 February 1996.

4. The permit was granted subject to five conditions. None of those conditions imposed a limitation on the life of the permit, although I am informed that the case on behalf of the Responsible Authority at that appeal hearing (which was an appeal against a decision of the Responsible Authority to refuse to grant a permit) included a suggestion that, if a permit was to be granted, then a time restriction on the life of the permit should be imposed. That was because the area is in something of a state of flux because of the fact that the area is redeveloping.

5. The failure to impose a condition limiting the life of the permit was an error. At the time the permit was granted the law, in the form of Clause 7-6.1A of the State Section of the Planning Scheme, contained a mandatory requirement that such a condition should be imposed. That provision was introduced into the Planning Scheme by Amendment S51 to the State Section of the Planning Scheme which Amendment was gazetted and came into force on the 25 September 1995. It read:-

"7-6.1A Mandatory Condition - Permit for a Sign.

In accordance with Section 61(1)(a) of the Act, a permit granted for a sign must include either:

"This permit expires 4 years after the date it is issued"

(b) the condition specified in paragraph (a) amended only insofar as specifying a period of less than 4 years."

6. It follows that there was a slip in purporting to grant the permit without the mandatory condition required by Clause 7-6.1A. This situation was pointed out to the Tribunal by the Responsible Authority in March 1996 and that resulted in the Tribunal making an order under section 49A of the Administrative Appeals Tribunal Act correcting the omission and inserting a new condition 1(a) reading:-

"1(a). This permit expires four years after the date it is issued."

7. Having been issued on the 27 February 1996, the permit is thus due to expire on the 27 February 2000.

8. The requester Vomanda Pty Ltd has sought, by these current proceedings under s.87 PE Act, an amendment to condition 1(a) to allow the permit to continue in operation for 25 years.

9. Such an amendment would, of course, be legally impossible under the planning scheme as it stood at the time of the grant of the permit because of Clause 7-6.1A. The planning scheme has, however, been further amended by Amendment S66 to the State Section of the Planning Scheme. This Amendment was gazetted and came into force on the 18 September 1997. It deleted Clause 7-6.1A and inserted Clause 7-6.2 in the following terms:-

A permit for a sign 18 square metres or greater must include a condition which states that the permit expires on a specified date. The specified date of expiry must be not less than 10 years or more than 25 years from the date of issue of the permit unless a local policy included in the scheme specifies a different expiry requirement.

A permit for any other sign must include a condition which states that either:

* "This permit expires 4 years after the date it is issued."

* The condition specified above amended only by specifying a period of less than 4 years."

10. Having regard to the area of the two signs in this case it is clear that the first paragraph of Clause 7-6.2 would apply to them, at least if a permit for them was to be applied for at this stage. Such a permit granted today would have to contain a condition specifying expiry not less than 10 years or more than 25 years after the date of issue.

11. This might be regarded as rather a surprising provision, not because of the upper limited 25 years, but because of the lower one which takes away the discretion of the Responsible Authority to grant a permit for a life of less than 10 years. One can readily imagine the situation where it might be appropriate to grant a permit for, say, five years, but where it would be inappropriate to do so for 10 years having regard to all the circumstances. Indeed this present case is a good example of such a situation. The area is undergoing significant change due to redevelopment and renewal which has been spreading to it from the direction of the river and the Southbank area. It may be quite appropriate to grant permission for such signs, or to renew such permission for several years, perhaps with a further review at that stage, but no reasonable assessment can be made of the situation that will be arrived at over the intermediate term and certainly no sensible view can be formed as to the appropriateness of these signs in 10 years time.

12. This is true, just having regard to the redevelopment and renewal that is now reaching the immediately locality. It is more so when other significant developments in the area are taken into account, particularly the City Link transportation project that is to shortly link the eastern end of the existing Westgate Freeway (which presently terminates in the vicinity of Kingsway) to the inner end of the South-Eastern (or Mulgrave) Freeway. The completion and operation of this project may well have significant effects on this site and locality.

13. Furthermore, the planning controls for this area are also in a transitional state inasmuch as a new planning scheme based on the Victorian Planning Provisions is expected to come into operation at any time during the early part of 1999.

14. Such a planning scheme has already passed through all but the last stages of coming into operation having been on exhibition pursuant to the relevant provisions of the PE Act, been considered by a panel under that Act which has conducted hearings and made a report and recommendations, been adopted by the Planning Authority and referred to the Minister. This proposed new planning scheme must be regarded as a "seriously entertained planning proposal" in terms of the decision in Lyndale & Black Pty Ltd v Melbourne and Metropolitan Board of Works [1983] 1 PABR 207. It has reached an advanced stage in its progress towards being brought into force. I would regard it as an important consideration in relation to an application, if one was made at this stage, for permission for such outdoor advertising signs as those under consideration. I note also s.60(1)(b)(ia) PE Act in this connection (although technically the proposal is for a new planning scheme rather than amendment to an existing one). That sub-paragraph of s.60 provides that the Responsible Authority, before deciding on an application may, if the circumstances appear to so require, consider any amendment to the planning scheme which has been adopted by a planning authority. This proposed new planning scheme has been so adopted. As with an application for a permit, if one was current, so is this proposed new planning scheme an important consideration in relation to any assessment of the planning merits of the current request for amendment of this existing permit.

15. This proposed new planning scheme is, in my view, a very strong consideration against granting such a permit if one was under consideration, and also against amending the existing permit to extend its life, if such an extension is in fact legally possible. This is because the proposed new planning scheme proposes to include the site and locality in a Mixed Use Zone under which these signs would be prohibited. It would be a strange discretionary planning decision that defeated the policies and purposes of the seriously entertained planning proposal just before it is due to come into operation by granting permission for, or extending permission for, signs that the new planning scheme proposes to prohibit. If the new planning scheme eventually comes into force in another from which allows such signs in these positions, then the question could be re-assessed at that stage; but it appears to me that, in the meantime the proposed planning scheme must be regarded as a powerful consideration against any such grant or extension.

16. Perhaps no great harm would flow from a grant or extension for a limited period of several years but, as I said during the hearing, I would not be prepared to contemplate anything like 10 years under present circumstances, let alone the 25 years being sought.

17. The rigidity of Clause 7-6.2, so far as signs of 18m2 or more are concerned, means that Responsible Authorities and the Tribunal have no discretion to allow a sign for a lesser period than 10 years where such a restriction might be considered necessary. Rather they are compelled to refuse permits that might be acceptable for a lesser period, unless they can be satisfied that such signs would be appropriate for at least 10 years. This is likely to mean that some proposals will be rejected altogether, although their proponents might welcome a permit for a shorter period than 10 years which the Authority (or Tribunal) might otherwise be quite willing to grant. The purpose of this rigid 10 year rule is not easy to discern. It was suggested during the hearing that it might arise from representations of the outdoor advertising industry seeking longer periods than the previous four year maximum to allow recoupment of investments involved in the erection of expensive forms of outdoor signage. The four year maximum rule in the old 7.6.1A did not necessarily limit the life of the sign to four years, it just meant that a new permission had to be sought after that period. Nevertheless, one can understand the desire for some security for a longer period where a significant investment is involved.

18. Such a consideration might call for a longer maximum than four years, but does not appear to be relevant to the imposition of a 10 year minimum limit on the life of a permit. The significant effect of that rule appears to be to rule out permits that might otherwise be granted for lesser periods.

19. A proponent obtaining a permit for a lesser period might need to consider whether the project is worth proceeding with on that basis. That is no different from the situation that a proponent faces in relation to any permit granted. The Responsible Authority or the Tribunal may decide that the permission sought should only be granted subject to certain conditions. It is for such authorities to impose such conditions as are necessary, reasonable and justified in planning terms. The result may not be attractive, or even feasible, in commercial terms. The commercial assessment is a matter for the proponent. It is for the proponent, having got the permit, to decide whether to act on it. The proponent may decide not to do so, indeed may decide that it would not be commercially viable, or a wise investment, to do so. As I have said, it is a question for the proponent, and not for the Responsible Authority, to concern itself with such commercial matters. The Responsible Authority should only impose such conditions that are necessary and justified in planning terms, but it should not refrain from doing so on the basis of non-planning commercial considerations.

20. If a proponent could get a permit for five years, but not for 10, it would have to decide whether to act on it. The present 10 year rule denies it that option, if the permit granting body forms the view that a permit should not be granted for as long as 10 years.

21. Mr Bisset, who appeared for the Requester in this case, referred to an Explanatory Report in relation to Amendment S66 which, as I recall it, referred to a report of an Advisory Committee set up by the Minister under s.151 PE Act to review advertising controls on major routes and to that Committee having recommended changes to the four year maximum rule of the old Clause 7-6.1A. That committee recommended the retention of a power to impose time limits on the life of sign permits subject to a six year minimum. At page 28 of its report it said:-

"The Committee has extensively considered the appropriateness of mandatory time limits and the extent of support for the continuation of the four year time limit. It is of the view that the assessment of whether a sign should be approved must be made on the merits of the proposal in the context of the site and its surrounds, regardless of whether a time limit would be imposed.

However, the Committee accepts that in some instances it is appropriate to review signage locations. Examples of such circumstances include -

* major redevelopment area or site where the character of the area is expected to change within a reasonably short time frame through active intervention (eg. 5 years);

* signs on derelict or poor structures/buildings;

* vacant sites where development may also be anticipated in the future;

* areas, such as shopping centres, where proactive marketing and management campaigns are actively seeking to change the character of an area or to create a distinct identity.

It could be the responsibility of local government to identify, through Municipal Strategic Statements, those special circumstances or locations where a time limit may be imposed. In these situations, it is appropriate that Councils have the power to apply a time limit on a approval for a sign. It is recommended that the minimum time limit which can be included as a condition on permit is that the sign must be removed in 6 years from the date of approval. From initial discussions with the outdoor advertising industry, 6 years provides sufficient time in most circumstances for costs to be amortised.

It is noted that other existing provisions within planning schemes apply for temporary signage."

22. So far as the present case is concerned, I do not think it appropriate to amend the permit by extending its life as specified in condition 1(a), namely a life of four years to the 26 April 2000, which was the maximum life that the permit could be given when it was granted. If further life is to be given to the existing signs, then I agree with the view expressed by the Responsible Authority, that the proper mode of achieving this would be by means of a new permit application in relation to which all the relevant procedures should be followed and all relevant matters could be taken into consideration. Such an application may have to face the adverse implications arising from the proposed new planning scheme, but they are relevant matters that should be taken into consideration. As I said during the hearing, there does not appear to be any reason why Mr Bisset's clients should not make such an application, or should not have made one, before the proposed new planning scheme comes into operation.

23. After I said, during the hearing, that I would not be prepared to extend the existing permit for 10 years, Mr Bisset suggested that it might be possible to extend it for a lesser period which nevertheless extended past the 26 April 2000. This seemed a surprising proposition, to suggest that I could grant an effective six years, say, on a permit that could only last, when it was granted, for four years, on the basis of an amendment to the planning scheme that now only allows a permit for 10 years or more. Six years would appear to be contrary to the wording and the policy of both the previous and the current planning scheme provisions.

24. The ground upon which the Requester seeks amendment of the permit is that specified in s.87(1)(d) PE Act namely material change in circumstances which has occurred since the grant of the permit. The material change relied upon is the introduction of Amendment S66 with its 10 to 25 year rule. That would seem to be an extraordinary basis for granting an amendment to a permit which subverts the very rule introduced by Amendment S66 to the Planning Scheme.

25. Mr Bisset admitted that he doubted that he could justify such a proposition, grounded on s.87(1)(d) and with Amendment S66 as the basis for granting a permit amendment that complied neither with the previous Clause 7-6.1A or the present Clause 7-6.2. However, he asked for leave to make a written submission on this point after the hearing on the basis that the Responsible Authority should have an opportunity to reply thereto. This leave was granted and acted upon.

26. It is not strictly necessary for me to deal with this point, as I have come to the conclusion that no amendment should be granted under s.87, even if there is power that this stage and by this means to grant a life of between 4 and 10 years. However I will offer some comments on the arguments raised by Mr Bisset in his post hearing written submissions. I do not propose to finally determine the question, although I remain very sceptical as to what he put.

27. In paragraph 2.2 of his second written submission Mr Bisset says it is common between the parties that his client has a ground for a permit amendment under s.87(1) namely a material change in circumstance since the granting of the permit. As I have said, the material change he claims is the coming into operation of State Section Amendment S66.

28. In paragraph 2.4 he asserts that the Tribunal has interpreted s.87(1) as providing "broad powers". It hardly seems relevant to argue the width of the grounds under s.87(1) if it is claimed to be accepted that a ground exists. In any event, such a generalised assertion doesn't really mean anything. The power to amend permits granted by s.87 and the subsequent provisions is not a limitless power. The Tribunal cannot amend a permit or a condition in a permit so as to create a permit or condition that is ultra vires or invalid (for example, as being repugnant to the law). It is more to the point to consider whether a particular proposed amendment is within power, or would create a permit or condition that was valid and within power, rather than worrying about whether the power to amend properly answers the description of being "broad". The case of Victoria Square Pty Ltd v City of Keilor 12 AATR 28 is cited in support of the assertion that there is a "broad power"; although the reasons given in that case do not appear to talk about a "broad power" or a "broad bases". It appears to be no more, for present purposes, than a particular decision on its own particular facts and circumstances.

29. I do not think that the real issue that Mr Bisset was to tackle, and for which he obtained leave to make a post hearing written submission, was whether he had a ground to amend the permit, but rather whether there is power to make an amendment to this permit so that its life would be more than 4 years but less than 10 years, having regard to the provisions of the old Clause 7-6.1A and the present Clause 7-6.2.

30. The written submission then went on to refer to two Supreme Court decisions concerning brothels and proposes to amend brothel permits. The first is the decision of O'Bryan J. in I Beaufonte v City of Yarra & Ors 17 AATR 233. In that case there was an operating brothel that had been in operation since 1989 under a permit which contained a restriction on its hours of operation. On the 14 June 1995 the Prostitution Control Act 1994 (PC Act) came into operation. Section 69 contained provisions that contemplated the continuing operation of brothels lawfully established and operating before the coming into operation of the PC Act. Section 74(1)(b) required the Responsible Authority to refuse an application for a permit for a brothel to operate on land within 100m of a dwelling. The continuing brothel was within 100m of a dwelling, but no prohibition had arisen from that circumstance at the time of the grant of the permit, or, for that matter, after the commencement of the PC Act. A request was made under s.87 to amend the permit to extend the hours of operation. The Tribunal found that there had been a material change in circumstances since the grant of the permit constituted by the passing of the PC Act. It took into account the new 100m rule imposed by s.74(1)(b) to decide that it could not amend the permit condition to extend the hours of operation. The Supreme Court held that, although s.74(1)(b) would prevent the grant of a new permit for a new brothel within 100m of a dwelling, it did not affect this existing permit and did not prevent an amendment to the condition so as to allow more generous hours. The Supreme Court held that the Tribunal had erred in taking s.74(1)(b) into account in the way it did.

31. Of course no questions in relation to the PC Act arise in the present case. I do not see that the Beaufonte case really bears on the present problems. The Supreme Court merely held that there was an error in the Tribunal holding that s.74(1)(b) prevented an amendment to the existing permit. Section 74(1)(b) did not render the proposed condition amendment beyond power. That does not mean that a proposed amendment cannot be beyond power, or that a proposed amendment could not create a condition that was invalid. It is just that the amendment proposed in that case did not raise such problems.

32. A condition or an amendment to a condition to allow more than four years life to an outdoor advertising sign permit was clearly beyond power when the old Clause 7-6.1A was in force. The Tribunal could not do by amendment what it could not do in granting the permit in the first place. The moment Clause 7-6.2 took over from 7-6.1A it became illegal to grant a permit for a sign exceeding 18m2 in area for less than 10 years. It seems to me that again at that stage the Tribunal could not do by amendment what it could not do by granting a permit. Whether that is correct or not, it is not apparent that the argument is advanced by reference to the Beaufonte decision or the effect of s.74(1)(b) PC Act.

33. The second case is the decision of McDonald J. in Seventh Colombo Pty Ltd v Melbourne City Council [1998] VSC 7; [1998] 22 AATR 325. It also concerned a condition in a brothel permit limiting hours of operation. The permit was granted in 1977 and condition 4 limited the hours. A request was made for an amendment under s. 87 to delete the condition 4 so as to allow unrestricted hours. In 1984 the land was rezoned to a Residential Zone under which brothel became a "prohibited" use. It became prohibited in the sense that no new brothel permit could be granted but, subject to certain provisions in Clause 15(3) of the Regional Section of the Planning Scheme, the existing brothel use could continue as a "non-conforming use". One of the provisions was that any existing condition or restriction on the use continues to be met. The Tribunal held that it could not, or perhaps at least that it would be futile, to delete condition 4 in that, because of Clause 15 its restrictions would still have to be observed if the non-conforming use rights were to continue to be relied upon. If the non-conforming use rights were not available and relied upon, the use would be prohibited. I have framed the above in my own words rather than those used by the Tribunal in its reasons for its decision. Perhaps unfortunately the Tribunal, in giving its reasons, spoke in terms of "interpreting" s.87 PE Act.

34. There was an appeal to the Supreme Court. The Supreme Court took the case to be one concerning the interpretation of s.87 and the width of the expression "any permit" in that section. This led to a discussion as to whether the interpretation of s.87 PE Act could be influenced by Clause 15 of the Regional Section of the Planning Scheme. The planning scheme is, of course, a piece of subordinate legislation made under the PE Act. The discussion included whether the meaning of the expression "any permit" in the section should be "read down" by reference to such subordinate provisions. Not surprisingly the Court decided that the interpretation of a section in the principal Act was not to be so affected by a provision in the subordinate legislation. Indeed, the Respondent's barrister, in seeking to support the decision of the Tribunal, specifically agreed with the Court on this point. He may have considered himself to be advancing a somewhat different argument, but the Court overruled this disclaimer insisting that the disclaimed proposition was effectively what was being argued.

35. Clause 15 of the Regional Section, in dealing with non-conforming use rights, allows certain uses, lawfully commenced, to continue even though they have become prohibited under the planning scheme; but such non-conforming use rights only survive if certain provisos in Clause 15 continue to be observed. One of these provisos is, of course the one requiring the "continued" observance of any condition or restriction.

36. This has generally been taken to mean that any condition or restriction applicable at the time that reliance on the non-conforming use right commenced, in this case when the use became prohibited by the rezoning. The word "continues" in Clause 15-3.1 rather implies that. In the Seventh Colombo case the brothel had commenced lawfully pursuant to the 1977 permit containing condition 4 limiting the hours of operation. Reliance on the non-conforming use rights commenced upon the rezoning in 1984 when the land was rezoned to residential and brothel became a prohibited use. The use continued lawfully thereafter, not by virtue of the permit, but by virtue of the non-conforming use provisions in Clause 15 and on the proviso that the then applicable conditions and restrictions, including the one on operating hours, continued to be observed.

37. The Court determined the case on its interpretation of "any permit" in s.87. It held that "any permit" could not be read down by reference to Clause 15 and that "any permit" included the 1977 permit. It does not appear to have been put to the Court that the 1977 "permit" had ceased to be an operative permit, although it had ceased to be a permit within the ordinarily understood meaning of that term under the PE Act. A permit is a document recording planning permission granted by the Responsible Authority, (or on appeal or review by the Tribunal), authorising a use or development which is permissible under the Planning Scheme but not legal without such permission. Such a permit is vital to the legality of the use and is relied upon by the operator. Certain implications of the reasoning of the Court in the Seventh Colombo case may complicate this but otherwise, I would have thought that the permit document ceased to be an operative permit authorising the use on the coming into effect of the 1984 rezoning amendment to the planning scheme. From that point on it was impossible to grant such a permit, and the existing permit ceased to be operative as the authorisation for a permissible use. The lawful continuation of the use from that point of time onwards depended not on the 1977 permit, but on the non-conforming use provisions of Clause 15 of the Regional Section of the planning scheme. I would have thought that the only continued relevance or importance of the permit document was that it recorded and was official evidence of certain conditions that applied to the use at the time when the change over from reliance on the permit to reliance on Clause 15 took effect. On that basis I would have doubted that the permit was still a "permit", although it had certainly been one up until 1984. I would have taken it that the permits capable of amendment under s.87 were actual operative "live" permits relied upon, or capable of being relied upon, to authorise a permissible use that would be illegal but for the existence of the permit. I would take it that a permit could not be amended under s.87 if it was no longer "live" in that sense, for example because it had expired or lapsed or been cancelled or because the planning scheme had been amended to render it no longer legally required or, indeed, to prohibit the use it had allowed.

38. This understanding of the situation does not appear to have been argued before the Supreme Court. At any event, the Court found that the 1977 permit document was a "permit" which could be amended under s.87. According to this approach the "permit" can continue to be amended from time to time, even after it has ceased to be operative in granting a planning permission required under the planning scheme. It held that the proviso of continuing compliance with conditions can be satisfied under Clause 15 if any conditions of prior permits are complied with, not as they stood at the time reliance on the non-conforming use rights commenced, but as amended from time to time, even after the "permit" has ceased to be an operative planning permission. This is not the place to consider the extent to which such an approach affects the philosophy and policy behind the preservation of non-conforming use rights or whether it renders the proviso redundant to any extent. Such questions may arise in the future.

39. Essentially the Supreme Court decided the case before it on the basis that s.87 extended to "any permit", taking it that the 1977 permit document was a permit for the purpose. It did not go on to consider whether the particular amendment proposed would create a permit or a condition that was invalid as being beyond power or repugnant to the law or otherwise contrary to the recognised tests of the validity of permits or conditions. I think it was assumed that the 1977 permit was valid, with or without condition 4. No question arose as to whether condition 4 itself was valid inasmuch as the proposal was for its deletion.

40. I think there is quite a different situation in the case before me. There is no reason to doubt the validity of the current permit, at any rate until its expiry in the year 2000. Upon its expiry I think it will cease to be an operative permit and cease to be capable of amendment under s.87. However, in the meantime it is a valid permit and no question as to its validity arises. In the Seventh Colombo case an issue could be raised as to whether there was a current operative permit and as to whether the proposed amendment deleting condition 4 was in order in that it was at least arguable that the proviso to Clause 15 required compliance with it in any event. That argument would depend, not so much on whether Clause 15 could overrule or modify the interpretation of s.87 as whether an amendment to a permit, which can be regarded as subordinate to a subordinate piece of legislation, can overrule a requirement in the subordinate legislation that a proviso continued to be complied with.

41. As I have said, the question before me is not whether the current permit is valid, but whether the proposed amendment would create a condition that is valid or whether, on the contrary, it would create an invalid condition. The power and discretion to impose conditions granted by s.62(2) PE Act is in very wide terms. It says the responsible authority "may include any other condition it thinks fit". Nevertheless it is clear that this is not an unrestricted power and discretion. There are a number of restrictions on that power not spelt out in s.62. There are many cases dealing with this and I do not propose to expound them here. Perhaps the most usual starting point on this question is the case of Pyx Granite Co Ltd v Ministry of Housing & Local Government [1958] 1 Q.B. 554 and I considered many of the important authorities on this question in my decision in Rosemeier v City of Greater Geelong (No. 1) [1997] 20 AATR 86. There cannot now be any doubt that some purported or proposed conditions can be invalid as being beyond power or repugnant to the law or for other reasons. I think Mr Bisset was called upon to justify the validity of the amendment that he proposed, not to justify whether there was an existing permit coming within the concept of "any permit" under s.87 and thus able to be amended. That, as it seems to me, is what Seventh Colombo related to. I have no doubt that the current permit before me could be validly amended under s.87 in various ways. The question is can it be amended in the way Mr Bisset seeks to create a limit on its life that is longer than the four year minimum of Clause 7-6.1A and less than the 10 years maximum of Clause 7-6.2, or would the proposed condition in fact be invalid as it appears to be contrary to both. I think the Seventh Colombo case was dealing with a different question to the one Mr Bisset undertook to argue.

42. Before leaving that case I will refer to a passage quoted by Mr Bisset from paragraph 41 of the Seventh Colombo judgement:-

"The task undertaken by the Tribunal to interpret the power invested in it to amend the permit as contained in Section 87(1) of the Act, in my view, ought to have been undertaken without reference to the provisions of the Planning Scheme."

43. I do not wish to quarrel with this quotation within what it is intended to convey. However the issue here is not the interpretation of the power so much as a question as to the validity of a particular proposed condition sought to be created by an amendment under s.87. I do not think that the quotation means that the Tribunal should not have regard to the normal tests of the validity of permits and conditions.

44. The Tribunal must have regard to the planning scheme when deciding whether it should grant a suggested permit or condition in a permit or an amendment to a permit or a condition in a permit. The Tribunal has no power to overrule the planning scheme, either in granting a permit or an amendment to one. The Tribunal cannot grant a permit for a brothel in a Residential Zone where the planning scheme decrees that such a use is prohibited, anymore than it could grant a permit for an outdoor advertising sign without a condition limiting its life to not more than four years when Clause 7-6.1A was operative. Another example might be given where the planning scheme allows subdivision of land in a rural area, but provided that each allotment so created must exceed 40 hectares in area. The Responsible Authority, or Tribunal on review, could grant a permit for the subdivision of a 100 hectare piece of land into two lots where each lot is of 40 hectares or more, but not three because then at least one of them would have to be of less than the lawful minimum area. If a permit was granted for a two lot subdivision, the Tribunal could not, by s.87, amend it to provide for a three lot subdivision because the result would be repugnant to the planning scheme and thus the law.

45. It would not be to the point in this connection to argue that the Seventh Colombo says that the Tribunal can amend "any permit", or to argue that because of that case "any permit" in s.87 is not to be read down, or that the Court said in that case that the Tribunal, in interpreting its power to amend under s.87 should not have referred to the provisions of the planning scheme. On the contrary, the point would be that in exercising the power the Tribunal cannot create a condition or a permit that, after the amendment would be illegal as contravening the planning scheme.

46. Mr Bisset appears to be arguing that once I have a request to amend a permit that comes within the concept of "any permit" under s.87, I then have an unrestricted power to grant any amendment I like (or rather an amendment that he likes) without regard to the planning scheme or anything else. Having started out arguing that the powers under s.87(1) are "broad powers" he must appreciate that the powers are not unlimited and such a proposition puts the position far too widely. Neither of the brothel cases cited justify such an approach.

47. He also made reference to cases indicating that non-conforming use provisions should be given as liberal a construction as the statutory provisions allow recognising that they are intended to protect and preserve rights to continue existing uses. He referred to Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295 at 300. There are other authorities for such an approach, but the statutory provisions must still be construed in accordance with their terms. A liberal construction does not mean a perverse one that reads out restrictions intended to be imposed by such provisions to the destruction of the policy considerations that led to their imposition. A proper construction, liberal to allow the survival of pre-existing use rights, does not mean disregarding the terms and intent of provisions which include certain restrictions. Such restrictions cannot be just disregarded. In any event this current case in relation to sky signs is not really an existing use case.

48. I think Mr Bisset was right during the hearing to admit that he was doubtful that he could find justification for an amendment at this stage that would have the effect of contravening the old Clause 7-6.1A and the current Clause 7-6.2. I think his doubts have been confirmed.

49. As I have said, I have decided that no such amendment should be granted in any event and that the request should be refused.

1. This request is adjourned to a date to be fixed.

2. The parties are directed to advise the Registrar and each other in writing within 14 days of the date of this document as to whether they seek a further hearing in relation to this case limited to the implications of the coming into operation of a new planning scheme for the City of Melbourne on 4 March 1999 with a short statement of the points to be argued and stating whether a prior directions hearing is thought to be desirable.

Vomanda Pty Ltd v Melbourne CC [1999] VCAT 554

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Vomanda Pty Ltd v Melbourne CC [1999] VCAT 554 (8 April 1999)

Parties

Cases Cited (1)