Box Hill OHP v Whitehorse CC - [2024] VSC 199

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2023 04283

BOX HILL OHP PTY LTD	Appellant
v
WHITEHORSE CITY COUNCIL	Respondent

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2024
DATE OF JUDGMENT:	29 April 2024
CASE MAY BE CITED AS:	Box Hill OHP v Whitehorse CC
MEDIUM NEUTRAL CITATION:	[2024] VSC 199

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PLANNING – Appeal from Victorian Civil and Administrative Tribunal – Land in Residential Growth Zone – Whether permit should have been granted for proposed service station – Whether Tribunal’s decision unreasonable – Whether Tribunal failed to undertake integrated assessment – Whether Tribunal erred by impermissibly assessing the proposal against a hypothetical ideal – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Porter SC Ms E Bergin	MinterEllison
For the Respondent	No appearance

HIS HONOUR:

Box Hill OHP Pty Ltd (‘OHP’) wants to build and operate a service station at 793-797 Whitehorse Road, Mont Albert (‘the land’). Under the Whitehorse Planning Scheme (‘the planning scheme’) it requires a permit to do so.

OHP applied to Whitehorse City Council (‘the Council’) for a permit for a proposed service station. The Council refused the application. OHP filed an application for review of the Council’s decision with the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’). On 16 August 2023 VCAT affirmed the Council’s decision to reject OHP’s application and determined that no permit should be issued for the proposed service station.

OHP now seeks leave to appeal from that decision. The prospects of the appeal are real and not fanciful, so I would grant leave to appeal.

Essentially OHP says that the Tribunal was wrong to reject a permit for a service station that was otherwise acceptable because of an overarching policy objective to encourage higher residential density land use in the area the land was situated. I have concluded that the Tribunal’s decision does not contain an error of law. For the reasons which follow, I would dismiss the appeal.

The central issue

Under the planning scheme the land is in a residential growth zone (‘RGZ’) and is also in a substantial change area.

In the RGZ there are three categories of use:

Section 1 uses, which do not require a permit;
Section 2 uses, which do require a permit; and
Section 3 uses, which are prohibited.

Use of land as a service station is a Section 2 use and so requires a permit in a RGZ.

Clause 32.07 of the planning scheme sets out the purposes of the RGZ:

To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide housing at increased densities in buildings up to and including four storey buildings.
To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres.
To encourage a scale of development that provides a transition between areas of more intensive use…

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: [2024] VSC 199
Decision Date: 29 April 2024

CaseChat Overview and Summary

In the case of Box Hill OHP v Whitehorse CC, the applicant sought leave to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT) concerning a proposed service station in a Residential Growth Zone. The applicant argued that VCAT should have granted a permit for the service station and that the Tribunal's decision was unreasonable, failed to undertake an integrated assessment, and incorrectly assessed the proposal against a hypothetical ideal. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether VCAT should have granted the permit for the proposed service station, whether VCAT's decision was unreasonable, whether VCAT failed to undertake an integrated assessment, and whether VCAT erred by impermissibly assessing the proposal against a hypothetical ideal. The applicant contended that VCAT did not correctly apply the statutory provisions and failed to properly weigh relevant considerations in making its decision.

The court found that the applicant had not demonstrated that VCAT's decision was unreasonable or that VCAT failed to undertake an integrated assessment. The court held that VCAT correctly applied the statutory provisions and took into account all relevant considerations in making its decision. The court further found that VCAT did not assess the proposal against a hypothetical ideal, but rather against the relevant criteria set out in the planning scheme. As such, the court dismissed the application for leave to appeal.

No orders were made regarding the costs of the application.

Orders