Bottomley v Boroondara City Council - [2025] VSC 127

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2024 01613

Bottomley, Margaret	Applicant
v
Boroondara City Council	First Respondent
-and-
Jang, Eunseol	Second Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2025
DATE OF JUDGMENT:	20 March 2025
CASE MAY BE CITED AS:	Bottomley v Boroondara City Council
MEDIUM NEUTRAL CITATION:	[2025] VSC 127

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PLANNING LAW — Application for leave to appeal from the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by objector to permit application — Permit granted for ‘dental laboratory’ in Commercial 1 Zone of the Boroondara Planning Scheme — No question of law with reasonable prospects of success identified — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	No appearance	Maddocks Lawyers
For the Second Respondent	In person

HER HONOUR:

INTODUCTION AND BACKGROUND

This matter is an appeal against the orders of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) made on 6 March 2024 in proceeding number P392/2023.[1]
[1]The orders and reasons are recoded in the published decision of Bottomley v Boroondara CC [2024] VCAT 200 (‘Tribunal’s Decision’).

On 6 March 2023, the first respondent, Boroondara City Council (the ‘Council’), determined to issue a Notice of Decision to Grant a Permit for the use of land for the purposes of a ‘dental laboratory’, where dentures are made to online orders, at 1/89–‍93 Whitehorse Road, Deepdene (the ‘Site’).

The Site is in the Commercial 1 Zone (‘C1Z’) of the Boroondara Planning Scheme (the ‘Scheme’). The permit application was retrospective as the Site was already in use as a dental laboratory.

The applicant in this proceeding, Ms Margaret Bottomley, objected to the permit application, as she considers that the dental laboratory poses risks to health and safety arising from odours, dust and noise emissions impacting on her tutorial and education centre which is located next door to the Site. Ms Bottomley is particularly concerned with the use of crystalline silica and the health risks associated with silicosis.

The second respondent, Eunseol Jang, was the permit applicant.

TRIBUNAL’S DECISION

The application for review under s 82 of the Planning and Environment Act 1987 (Vic) (the ‘P&E Act’) was heard before the Tribunal on 10 November 2023. The Tribunal characterised the key issues arising from the proposed use as follows:

(a) What is the characterisation of the use?

(b) Whether the dental laboratory is a land use compatible with the surrounding context?

The Tribunal delivered its decision and reasons on 6 March 2024 and made the following orders:

Amend application
1.Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application preamble is amended to read:
Use of the land in the Commercial 1 Zone for industry (dental laboratory)

Permit granted
2.In application P392/2023 the decision of the responsible authority is varied.

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: [2025] VSC 127
Decision Date: 20 March 2025

CaseChat Overview and Summary

Bottomley v Boroondara City Council involves an application by Ms Margaret Bottomley to appeal the decision of the Victorian Civil and Administrative Tribunal (VCAT) which granted a permit to the Boroondara City Council for the use of a site at 1/89–93 Whitehorse Road, Deepdene, for a dental laboratory. Ms Bottomley objected to the permit, concerned about health and safety risks, particularly from crystalline silica, impacting her nearby education centre. The second respondent, Ms Eunseol Jang, who was the permit applicant, elected not to participate in the appeal proceedings. The legal issues in this case revolve around whether the Tribunal erred in law in granting the permit, specifically regarding the characterisation of the use, the application of integrated decision making and net community benefit, and the appropriateness of retrospective permit approval.

The Court found that the questions raised by Ms Bottomley did not constitute valid questions of law with a real prospect of success. Firstly, the Court dismissed Ms Bottomley’s argument that the permit could not be granted to Ms Jang as she was not the same entity that had submitted the original application. The Court noted that a permit is tied to the land and not the identity of the applicant. Secondly, the Court found that the Tribunal correctly applied established principles in considering the retrospective permit application, focusing on the planning merits of the application. Thirdly, regarding the application of integrated decision making and net community benefit, the Court determined that the Tribunal had appropriately considered the relevant factors and policies in its decision. The Court held that the Tribunal was entitled to weigh the factors as it saw fit and that Ms Bottomley’s disagreement with the weight ascribed to certain factors did not amount to a legal error. Lastly, the Court rejected Ms Bottomley’s suggestion that the Tribunal should have disregarded certain planning regulations and imposed a penalty instead of granting a retrospective permit. The Court found that the Tribunal had correctly characterised the use as "Industry" and applied the relevant provisions of the Boroondara Planning Scheme.

The Court ultimately concluded that the Tribunal’s decision was carefully reasoned and that Ms Bottomley’s appeal had no merit. The application for leave to appeal was therefore refused. The Court provided an opportunity for the parties to make submissions on any application for costs.

Orders