Brandwill Holdings Pty Ltd v Jonson & Ors - [2014] VSC 356

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2014 2458

BRANDWILL HOLDINGS PTY LTD (ACN 106 063 432)	Applicant
v
PETER JONSON & ORS (according to the attached Schedule)	Respondents

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2014
DATE OF JUDGMENT:	30 June 2014
CASE MAY BE CITED AS:	Brandwill Holdings Pty Ltd v Jonson & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 356

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr S. Morris, QC with
Mr B. Chessell

Moray & Agnew Lawyers

For the Third to Twenty-Second Respondents

For the Second Respondent

Mr J. Pizer, QC with
Ms C. van Proctor

Mr N. Wood

Rigby Cooke

Country Fire Authority In-house counsel

HER HONOUR:

The applicant is the developer of land on the Mornington Peninsula. On 12 January 2012, it applied to the Mornington Peninsula Shire Council for a permit to realign the boundaries of two existing lots to create a new lot, to use and develop the new lot for the purpose of a single dwelling and to remove native vegetation. On 5 February 2013, the Council issued a notice of decision to grant a permit for the proposed development. On 26 February 2013, a number of objectors applied to the Victorian Civil and Administrative Tribunal for review of the Council’s decision. On 18 September 2013, the Tribunal made an order setting aside the decision of the Council to grant the permit and ordered that no permit issue (the ‘Tribunal’s Order’).

Following the Tribunal’s Order, the applicant took some steps to secure what it considered remained of the permit that the Council had decided to grant. These steps, which I discuss below, were unsuccessful. The applicant now seeks an extension of time pursuant to s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) to apply for leave to appeal the Tribunal’s Order. It also seeks leave to appeal the Tribunal’s Order pursuant to s 148(1) of the VCAT Act.

For the reasons that follow, the application for an extension of time is refused. It is therefore unnecessary to consider the application for leave to appeal.

Background

Development and use of the subject land is regulated by the Mornington Peninsula Planning Scheme, which includes an incorporated document titled ‘National Golf Course and Cape Schanck Resort Development October 2003’ (the ‘Incorporated Document’). The subject land is subject to the following zone and overlay controls pursuant to the Scheme: the Green Wedge Zone (Schedule 24); the Environmental Significance Overlay (Schedules 16, 23, 24 and 28); the Significant Landscape Overlay (Schedule 6); and the Bushfire Management Overlay. However, the application of these controls is varied by the Incorporated Document, which provides that the provisions of the Green Wedge Zone are excluded in part, and the provisions of the Environmental Significance Overlay and the Significant Landscape Overlay are excluded in full.

The permit application was exempt from the notice requirements in s 52(1)(a),…

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: [2014] VSC 356
Decision Date: 30 June 2014

CaseChat Overview and Summary

The applicant, Brandwill Holdings Pty Ltd, sought an extension of time and leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) that set aside a decision of the Mornington Peninsula Shire Council to grant a permit for the development of land on the Mornington Peninsula. The permit sought the realignment of lot boundaries, the creation of a new lot, and the use and development of the lot for a single dwelling, along with the removal of native vegetation. The permit application was subject to the Mornington Peninsula Planning Scheme, which incorporated a document that varied the application of several overlays and zones. The objectors to the permit application applied to VCAT for review of the Council’s decision, and VCAT set aside the Council’s decision in its entirety and ordered that no permit issue. The applicant then sought an extension of time and leave to appeal the Tribunal’s decision, arguing that the Tribunal had no power to set aside the Council’s decision in its entirety and that there was a mismatch between the Tribunal’s reasons and the Tribunal’s order.

The court held that the applicant had not discharged its onus of establishing that an extension of time should be granted. The court found that the applicant had not provided a good explanation for the delay in bringing the application for leave to appeal, and that the absence of obvious prejudice to the respondents did not provide a basis for the grant of an extension of time. The court held that the applicant had made deliberate choices that had resulted in the delay, and that there was a public interest in the finality of litigation. The court refused the application for an extension of time, and it was therefore unnecessary to consider the application for leave to appeal.

Orders