| 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 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),…
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- Case
- [2014] VSC 356
- Decision Date
CaseChat Overview and Summary
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.
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