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Alex Fraser Pty Ltd v Minister for Planning

Alex Fraser Pty Ltd v Minister for Planning

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Case Copied 17 July 2018 34 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S CI 2017 04515

ALEX FRASER PTY LTD (ACN 004 056 204)	Appellant
v
MINISTER FOR PLANNING	Respondent

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2018
DATE OF JUDGMENT:	17 July 2018
CASE MAY BE CITED AS:	Alex Fraser Pty Ltd v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2018] VSC 391

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APPEAL – Appeal from decision of Associate Judge refusing relief – Whether jurisdictional requirements of r 32.05(a) of the Supreme Court (General Civil Procedure) Rules 2015 correctly applied – Appeal allowed.

PRACTICE AND PROCEDURE – Preliminary discovery – Whether reasonable cause to believe applicant may have a right to relief – Principles to be applied – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S Morris QC with R Chaile	Norton Rose Fulbright
For the Respondent	A Woods with M Chorn	Victorian Government Solicitor

HIS HONOUR:

By Notice of Appeal filed 7 May 2018, the appellant appeals against orders of the Associate Justice made on 18 April 2018 dismissing the appellant’s application pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The appellant sought an order that the respondent make discovery of all documents relied on, or considered by, the respondent (‘the Minister’) in coming to his decision to approve (‘the Approval’) Amendment C143 of the Kingston Planning Scheme (‘the Planning Scheme Amendment’).

Background

By planning permit KP881/07 dated 5 December 2008, the City of Kingston allowed the use and development of land at 293–315 Kingston Road, Clarinda (‘the Site’) for materials recycling in conjunction with a refuse transfer station for a maximum of 15 years’ duration. Clause 8 of the permit provided that the Council of the City of Kingston (‘the Council’) may extend the permit if a request was made in writing not less than 3 years before the expiration of the permit.

On 27 August 2012, the Council adopted the recommendations of the Kingston Green Wedge Plan in relation to landfills, waste transfer and materials recycling; and to facilitate a transition to a proposed ‘chain of parks’ on the land subject to the plan, which included the Site.

Between 25 September and 27 October 2014, pursuant to s 19 of the Planning and Environment Act 1987, the Council exhibited the Planning Scheme Amendment in which it was proposed to rezone certain land, including the Site, from Special Use Zone Schedule 2 (Earth and Energy Resources Industry) to the Green Wedge A Zone. The appellant’s uses would not be permitted under the Planning Scheme Amendment.

On 24 October 2014, the appellant made a submission to the Council objecting to the Planning Scheme Amendment.

On the same day, 24 October 2014, Contour Town Planners made an application on behalf of the appellant for Council to extend the end date of the permit from 2023 to the year 2038 (‘the Extension Application’).

On 24 November 2014,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 391
Decision Date: 17 July 2018

CaseChat Overview and Summary

In the case of Alex Fraser Pty Ltd v Minister for Planning, the applicant, Alex Fraser Pty Ltd, sought an appeal from a decision of an Associate Judge of the Supreme Court of Queensland, who had refused the applicant relief under the provisions of the Supreme Court (General Civil Procedure) Rules 2015. The nature of the dispute centred on the jurisdictional requirements of Rule 32.05(a) and whether they had been correctly applied by the Associate Judge. The applicant argued that the decision to refuse relief was incorrect and sought to appeal the matter to the Supreme Court.

The legal issues before the court involved the interpretation and application of Rule 32.05(a) of the Supreme Court (General Civil Procedure) Rules 2015, which governs the jurisdictional requirements for preliminary discovery. The applicant contended that the Associate Judge had erred in finding that there was no reasonable cause to believe the applicant had a right to relief. The court was required to determine whether the Associate Judge had correctly applied the principles governing preliminary discovery and whether there was reasonable cause to believe the applicant may have a right to relief.

The court found that the Associate Judge had erred in not applying the correct principles in determining whether there was reasonable cause to believe the applicant had a right to relief. The court held that the applicant had demonstrated a sufficient basis to warrant the granting of preliminary discovery. The applicant had established a reasonable cause to believe it may have a right to relief, as there were facts and circumstances that suggested the existence of documents that were relevant to the proceedings. Consequently, the appeal was allowed, and the decision of the Associate Judge was quashed.

The final orders of the court were that the appeal be allowed, the decision of the Associate Judge be quashed, and the matter be remitted to the Associate Judge for reconsideration in light of the court's determination. The court granted the application for preliminary discovery, finding that there was reasonable cause to believe the applicant may have a right to relief.

Orders