Legal Research
Cases
Anderson v Stonnington City Council

Anderson v Stonnington City Council

Link copied

Case Copied 18 July 2019 45 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2018 00604

JOHN RAYMOND ANDERSON	First Plaintiff
DEMITRA ANDERSON	Second Plaintiff
v
STONNINGTON CITY COUNCIL	Defendant

---

JUDGE:	Garde J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 February, 28 May and 7 June 2019
DATE OF JUDGMENT:	18 July 2019
CASE MAY BE CITED AS:	Anderson v Stonnington City Council
MEDIUM NEUTRAL CITATION:	[2019] VSC 453

---

PLANNING – Decision of the Victorian Civil and Administrative Tribunal – Heritage overlay control – Whether works under building permits issued before heritage overlay control introduced created an accrued right – Lawfulness of ongoing building works – Whether planning permit needed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Planning and Environment Act 1987 (Vic) s 6(3); Interpretation of Legislation Act 1984 (Vic) s 28(2)(e); Stonnington Planning Scheme cl 72.06 (formerly cl 61.05).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Robinson	Direct brief
For the Defendant	Ms S Porritt with Ms F Hudgson	Maddocks

HIS HONOUR:

Introduction

John and Demitra Anderson (‘the plaintiffs’) seek leave to appeal, and if leave is granted, appeal to this Court under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) from the decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The Tribunal found that works they undertook at 21 William Street, South Yarra (‘the subject land’) after 21 May 2015 required a planning permit under a site specific heritage overlay control (HO462). The overlay was introduced by Amendment C204 to the Stonnington Planning Scheme (‘the planning scheme’).[1]
[1]Anderson v Stonnington City Council [2018] VCAT 102 (‘Tribunal decision’).

In 2012, the plaintiffs purchased the subject land with the intention of renovating the existing two-storey villa as their residence. The subject land is and was at all relevant times zoned ‘General Residential 1’ under the planning scheme. The Stonnington City Council (‘the Council’) is the responsible authority for the planning scheme under the Planning and Environment Act 1987 (Vic) (‘PE Act’).

In late 2014, private building surveyors issued building permits under the Building Act 1993 (Vic) (‘Building Act’) for works on the subject land. At this time, there was no requirement for a planning permit for the works.

The building permits were:

(a) BS-U 1026/215142/10 dated 3 December 2014 authorising works on the front veranda (‘veranda permit’);

(b) BS-U 1026/215118/0 dated 10 November 2014 authorising works for a garage and pavilion at the front of the site (‘pavilion permit’); and

(c) BS-U 1165/20141384/1 dated 22 December 2014 authorising stage 1 works (‘stage 1 permit’) comprising partial demolition of the main residence, construction of ground floor works, and the first floor sub-frame.

On 21 May 2015, the heritage overlay control took effect. It introduced a requirement for a planning permit to be obtained for demolition, building and works on the subject land. By this time, the plaintiffs had completed all of the works under the veranda permit,…

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.

Keep reading for free

Create a free CaseChat account to read Anderson v Stonnington City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSC 453
Decision Date: 18 July 2019

CaseChat Overview and Summary

In the matter of Anderson v Stonnington City Council, the dispute centred around the interpretation of heritage overlay controls within the context of ongoing building works under building permits issued prior to the introduction of such controls. The case was heard by the Victorian Civil and Administrative Tribunal (VCAT). The primary issue before the tribunal was whether the ongoing building works under these pre-existing permits constituted an accrued right, exempt from the heritage overlay controls. Additionally, the tribunal needed to determine if a planning permit was required for these works.

The tribunal considered the relevant legislation, including the Victorian Civil and Administrative Tribunal Act 1998, the Planning and Environment Act 1987, and the Interpretation of Legislation Act 1984. It also examined the provisions of the Stonnington Planning Scheme. The tribunal applied these laws to assess whether the building works fell under an accrued right and if they were exempt from the heritage overlay controls. The tribunal concluded that the works did not constitute an accrued right and that a planning permit was necessary for the ongoing building works to comply with the heritage overlay controls.

Following its reasoning, the tribunal found that the building works under the pre-existing permits were not protected as an accrued right and that a planning permit was indeed required. This decision was grounded in the statutory interpretation and the specific provisions of the Stonnington Planning Scheme. The tribunal's ruling mandated that the ongoing building works comply with the heritage overlay controls and obtain the necessary planning permit.

Orders