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Boucher v Dandenong Ranges Steiner School Inc

Boucher v Dandenong Ranges Steiner School Inc

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Case Copied 7 October 2005 18 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 7064 of 2005

IN THE MATTER of Section 148 of the Victorian Civil and Administrative Tribunal Act 1998

NEVILLE BOUCHER AND DONNA BURNETT	Appellants (Plaintiffs)
v
DANDENONG RANGES STEINER SCHOOL INCORPORATED AND OTHERS	Respondents (Defendants)

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 OCTOBER 2005
DATE OF JUDGMENT:	7 OCTOBER 2005
CASE MAY BE CITED AS:	BOUCHER & ANOR v DANDENONG RANGES STEINER SCHOOL INC. & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 400

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Transitional Green Wedge land use controls – Use of land for educational purposes "in conjunction with" agriculture or natural systems – Relevance of concept of ancillary use – Tribunal's conclusion open to it – No error of law demonstrated.

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APPEARANCES:	Counsel	Solicitors
For the Appellants (Plaintiffs)	Mr C. Porter	Falcone & Adams
For the First Respondent (Defendant)	Mr G. Purcell	Williams Winter

HIS HONOUR:

The appellants are objectors to the proposed establishment of a primary school on a 1.675 hectare site comprising part of the former Melbourne Water Cardinia Reservoir works depot at Narre Warren East.

The site contains former depot offices, a workshop, truck ramp, storage, propagation sheds, and associated paved areas. A further one third of the site comprises bushland which links with the recreation reserve adjoining Cardinia Reservoir.

In February 2004 the first respondent ("the school") sought a permit for the proposal and in August 2004 the Cardinia Shire Council ("the responsible authority") determined to refuse to grant a permit. The first ground of such refusal was:

"The use of the land is not 'in conjunction with agriculture or natural systems' and therefore does not comply with the provision of Clause 57 Core Planning provision for Metropolitan Green Wedge."

This ground reflects a requirement of the planning controls governing the permissibility of the proposed educational use.

The school appealed the decision of the responsible authority and the matter came before the Victorian Civil and Administrative Tribunal ("the Tribunal") in March and April of this year. The permissibility of the proposed use was again the subject of contention but the Tribunal formed the view that the proposed education centre would be used in conjunction with agriculture and natural systems (as defined) and hence was permissible and that the proposal was acceptable on its merits. In June of this year it directed that a permit issue subject to conditions.

The appellants now seek to challenge the Tribunal's decision on two bases contending:

(a)that it was not open to the Tribunal to characterise the proposed use as an education centre used in conjunction with agriculture or natural systems; and
(b)that the Tribunal failed to consider whether on the proper construction of the planning scheme, two of the proposed uses namely agriculture and natural systems were in fact no more than uses which were ancillary to the proposed use for an education centre.[1]
[1]The grounds of appeal for which leave was granted are as…

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: [2005] VSC 400
Decision Date: 7 October 2005

CaseChat Overview and Summary

The case of Boucher v Dandenong Ranges Steiner School Inc involved a dispute concerning the use of land within the Green Wedge area of Melbourne, Victoria. The plaintiff argued that the defendant's use of land for educational purposes in conjunction with agricultural and natural systems contravened the transitional land use controls. The matter was heard and determined by the Supreme Court of Victoria.

The central legal issue before the court was whether the defendant's operation of an educational institution alongside agricultural and natural systems on Green Wedge land was permissible under the transitional land use controls. The court was tasked with interpreting the relevant statutory provisions and determining if the defendant's activities constituted an ancillary use that was compatible with the educational purpose. The court also needed to assess whether the Planning and Environment Tribunal had correctly applied the relevant legislation and made a decision that was open to it.

The court found that the Planning and Environment Tribunal's decision was open to it, and there was no demonstrated error of law. The concept of ancillary use was relevant in determining whether the educational purpose was being carried out in conjunction with agricultural or natural systems. The tribunal had appropriately considered the evidence and the applicable legal framework in reaching its conclusion. The court held that the defendant's use of the land for educational purposes in conjunction with agricultural and natural systems was permissible under the transitional land use controls.

No further orders were made by the court, affirming the tribunal's decision as legally sound and appropriate. The defendant's use of the land in question remained compliant with the transitional land use controls, and the plaintiff's challenge was dismissed.

Orders