[6] It was variously suggested by the parties at the hearing before us that either Deputy President Gibson had formulated this question on her own initiative, or that it was suggested by Mr Montebello on behalf of Bayside City Council (then in its capacity as both permit applicant and responsible authority). In any event, at that stage, the ability of the Tribunal to determine this question via a separate hearing within the same proceeding by a legal member of the Tribunal was not contested by any party.

Victorian Civil and Administrative Tribunal|2017-05-19|Before: Ms J, Mr J

For the reasons above, the Tribunal makes the declarations contained in this order in respect of the proposed use of the pavilion and café in response to the identified question of mixed law/fact.

[1] The written submissions presented on behalf of the Council as permit applicant were prepared by Ms S Brennan SC in conjunction with Mr H Hassan.

[3] Under clause 52.27 and clause 3.0 to the Vegetation Protection Overlay, clause 42.02-2.

[7] By reference to the wording of section 82.

[8] [2015] VSCA 27, a decision of Warren CJ, Santamaria JA and Garde AJA.

[9] For example, if there had been a material mis-statement or concealment of fact in respect of an application for a permit, a permit could potentially be cancelled under section 87 of the PE Act.

[10] (Red Dot) [2013] VCAT 723, a decision of DP Gibson.

[11] For example, sub-clause 3(a) expressly enables amendment of an application to a use or development different from the use or development mentioned in the application.

[12] Kracke v Mental Health Review Board (2009) 29 VAR 1, [804].

[13] Referencing section 97 of the VCAT Act.

[15] Section 98(1)(d) of the VCAT Act provides that the Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

[16] It was accepted by all parties that the Council is the public land manager under the Local Government Act 1987.

[17] It is unclear whether that facility is currently in use given the state of disrepair of the building. No evidence was presented in this regard.

[20] For example, Burwood Area Community Housing Ltd v Sutherland Shire [2006] NSWLEC 313 and A-G (ACT) v Commonwealth [1990] FCA 339; (1990) 26 FCR 82.

[21] Relevant planning scheme policies were referred to in this regard, including clause 21.08 with associated adopted policies of the council pertaining to open space and coastal management.

[22] In line with its functions in 3E(1)(b) of the LG Act.

[23] Best Value Principles under the LG Act were referred to in this regard in submissions.

[24] Similar exemptions are provided for specified public authorities in clause 62 of the scheme.

[26] We consider that it is beyond the ambit of the question framed by Deputy President Gibson for us to consider and make findings about whether such use may be an ancillary one.

[30] See order of Gibson DP dated 23 February 2017.

[31] With leave of the Tribunal by order dated 7 April 2017, a written submission on behalf of Council dated 20 April 2017 was filed with the Tribunal and circulated to the parties. We have considered this submission.

[32] See, for example, Port Phillip City Council v Hickey [2001] VSC 129 (3 May 2001)

[33] Randwick Corporation v Rutledge [1959] HCA 63; [1959] 102 CLR 54

Wertheimer v Bayside CC [2017] VCAT 726 (19 May 2017)

Wertheimer v Bayside CC [2017] VCAT 726

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

Wertheimer v Bayside CC [2017] VCAT 726 (19 May 2017)