Australia: What Evidence Can Be Used To Interpret An Ambiguous Permit Condition?

Last Updated: 11 September 2008
Article by Greg Tobin

In the recent decision of Vestey & Ors v Warrnambool CC (Red Dot) [2008] VCAT 963, Justice Kevin Bell, VCAT President, has re-examined the relevance of external materials to the interpretation of ambiguous planning permits. Justice Bell's confirmation that certain 'objective' evidence of facts and circumstances can be relevant to interpretation of vague or unclear permits provides important guidance for councils and developers alike.

FACTS

In earlier proceedings, objectors had applied to the Tribunal for review of a decision of the Warrnambool City Council to grant a permit allowing the use of premises for an adult bookshop. The matter was settled by consent with the Tribunal ordering that a permit should be issued with a revised Condition 7. The amended Condition 7 read:

'The permitted use must not include any of the activities prohibited under Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, specifically:

  • No person may sell* or publish* any film* or objectionable film* from the premises.
  • No person may sell* or publish* any objectionable publication*
  • No person may download or transfer by any means any film*, objectionable film*, or objectionable publication.
  • No internet or other similar information transfer facility capable of accessing objectionable publications* or objectionable films* may be provided to customers or other persons entering or remaining on the premises.

[* these terms are as defined under the section 3 of the Act]'

The Vestey decision concerns a second application by Lynton Vestey, one of the original objectors, who sought a number of declarations from the Tribunal including one as to the proper interpretation of the revised Condition 7.

Vestey argued that Condition 7 prohibited the sale of all films from the bookshop even though the sale of films from such establishments is generally accepted as normal. In support of this interpretation of Condition 7, Vestey sought to rely on materials demonstrating that during the course of the negotiations to settle the original proceedings, the objectors had thought that the effect of Condition 7 would be to prohibit the sale of all films.

CONSIDERATION

Justice Bell reviewed a wide range of decisions considering the interpretation of planning permits and the relevance of external materials. The decision restates several important principles:

  • Where a permit expressly or impliedly incorporates a plan or another document, in whole or in part, it is necessary to examine those sources to arrive at a proper interpretation of the permit. Interpretation of the permit is to be carried out with the permit in one hand and the plan or other incorporated document in the other, because once incorporated, the document must be considered to be part of the permit itself.
  • As a starting principle, a permit should be interpreted by reference to the document itself and any incorporated documents. Extrinsic materials may be used to interpret a permit only when it is ambiguous or unclear and the materials might logically assist in resolving the issue of how the permit should be properly interpreted. The Vestey decision cites examples of information that might be relevant in the case of an ambiguity. These include the permit application materials and previous planning controls. " When it comes to interpreting an ambiguous provision in a planning permit, it is permissible to examine the objective matrix of facts and circumstances that supply the context in which the permit was issued, but not the subjective intentions or expectations of the parties.
  • There is no difference in approach when interpreting a permit issued by a responsible authority with or without objections or a permit issued at the direction of the Tribunal.

CONCLUSION

In Vestey the applicant sought to rely on evidence arising from settlement negotiations to interpret the effect of Condition 7. The evidence was said to demonstrate the intention of the parties and therefore guide the interpretation of the permit condition.

Applying the tests above, the Tribunal ruled that evidence of the parties' intentions at settlement was not allowable and chose to admit the evidence only on the basis that it demonstrated that negotiations had taken place on the subject matter of the Condition 7.

The case highlights the need for parties to draft permit conditions and any settlement terms carefully to avoid ambiguity and reflect their intentions. Evidence of the parties' intentions at settlement is unlikely to be admissible.

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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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