The Law Library of Victoria Home Menu

Brighton Foreshore Association Inc v Bayside City Council; Carden, Patricia; Carden, Susan; Millett, Kathryn; McQuire, Elizabeth; Briggs, Carolyn; Bate, Janice; Chapman, Scott & Joseph, Alison [2021] VSCA 284

ADMINISTRATIVE LAW
Victorian Court of Appeal
Judge(s): 
Emerton, Sifris and Osborn JJA
Parties: 

Brighton Foreshore Association Inc v Bayside City Council; Carden, Patricia; Carden, Susan; Millett, Kathryn; McQuire, Elizabeth; Briggs, Carolyn; Bate, Janice; Chapman, Scott & Joseph, Alison

Judgment Date: 
15 October 2021
Catchwords: 

ADMINISTRATIVE LAW - Application for leave to appeal the decision of trial judge with respect to appeal on question of law - Application at first instance for leave to appeal decision of Victorian Civil and Administrative Tribunal granting planning permit for use of land as life saving club, multi-purpose function space, and café - Whether powers and restrictions imposed by An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877 (Vic) ('Vesting Act') on land owner were required to be taken into account in Tribunal's review of a decision under the Planning and Environment Act 1987 about land the subject of the Vesting Act - Whether trial judge erred in concluding the Tribunal was not required to consider the effect of the Vesting Act in reaching its decision as to whether a planning permit should be granted for the proposed uses - Whether mandatory consideration - Whether open to Tribunal to conclude that proposed uses will be ancillary to use of the land as a place of public resort or recreation - Whether trial judge erred in analysis of application of the Vesting Act to the proposed uses by presupposing that the respondent Council had the power to lease part of the subject land; by accepting that the proposed uses might be permissible as incidental or ancillary uses to the use of the land subject to the Vesting Act as a 'place of public resort or recreation'; in failing to have proper regard to whether any monetary profits to arise from the proposed uses would be devoted to the public purpose contemplated by the Vesting Act - Leave to appeal refused - City of Dandenong v Woolley (1983) 57 LGRA 315, Randwick Corporation v Rutledge (1959) 102 CLR 54, Municipal Council of Mosman v Spain (1929) 29 SR (NSW) 492, Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council (1965) 11 LGRA 407, Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 considered; Walker v Shire of Flinders [1984] VR 409, Storey v North Sydney Municipal Council (1970) 123 CLR 574, Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 distinguished - An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877, Local Government Act 1874 s 483, Planning and Environment Act 1987 ss 60(1), 60(1A), 84B(1), 84B(2), Victorian Civil and Administrative Tribunal Act 1998 s 148.

Citation: