Burns v Yarra Ranges Shire Council - [2014] VSC 447

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 5597 of 2013

IN THE MATTER of r 56 of the Supreme Court (General Civil Procedure) Rules 2005

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IN THE MATTER of s 114 of the Planning and Environment Act 1987

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IN THE MATTER of the certain application held by the Administrative Division Planning and Environment List of the Victorian Civil and Administrative Tribunal at Melbourne on 28 August 2013 wherein YARRA RANGES SHIRE COUNCIL was the Applicant and ROBERT ALAN BURNS was the Respondent

ROBERT ALAN BURNS	Plaintiff
v
YARRA RANGES SHIRE COUNCIL	First Defendant
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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2014
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Burns v Yarra Ranges Shire Council
MEDIUM NEUTRAL CITATION:	[2014] VSC 447

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Administrative Law — Review of the decision of the Victorian Civil and Administrative Tribunal — Whether a further adjournment should have been granted — Whether onus of proof on Council to prove permit — Whether plaintiff admitted breach of the planning laws — Planning and Environment Act 1987, s 114

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Billings	Patten Robins
For the First Defendant	Mr T S Pikusa	Goddard Elliot
For the Second Defendant	No appearance

HER HONOUR:

Introduction

On 5 April 2011, the first defendant (‘the Council’) filed an application for an enforcement order in the Victorian Civil and Administrative Tribunal. That application, brought pursuant to s 114 of the Planning and Environment Act 1987, related to certain earthworks the first defendant required the plaintiff (‘Mr Burns’) to undertake in respect of land situate at 19A Wattle Avenue, Belgrave (‘the property’).

The property is subject to the Yarra Ranges Council Planning Scheme (‘the planning scheme’), is zoned Low Density Residential Zone, and is subject to an Erosion Management Overlay (‘the overlay’), a Bushfire Management Overlay, and a Significant Landscape Overlay. The allegation made in support of the enforcement order sought was that Mr Burns had carried out earthworks on the property without a permit.

Section 44.01 of the planning scheme sets out the requirements under the overlay. Section 44.01-1 provides that a permit is required to construct a building or carry out works, but that this does not apply if a schedule to this overlay specifically states that a permit is not required. Section 4.0 of the schedule to the overlay provides that:

No permit is required to construct or carry out any of the following building or works.

·Earthworks, either separately or as part of a buildings or works proposal, provided;
·No cut or fill greater than 0.6 metres in height or depth is required;

Specifically, it was alleged that Mr Burns constructed batters on his land with fill heights greater than 0.6 metres in height in order to provide a greater area of flat…

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.

Continue reading Burns v Yarra Ranges Shire Council

Details

AGLC: Burns v Yarra Ranges Shire Council [2014] VSC 447
Case: [2014] VSC 447
Decision Date: 16 September 2014

CaseChat Overview and Summary

The case of Burns v Yarra Ranges Shire Council arose from a dispute between the plaintiff, Burns, and the defendant, the Yarra Ranges Shire Council. The plaintiff sought judicial review of a decision by the Victorian Civil and Administrative Tribunal, which had dismissed the plaintiff's application to have a penalty notice quashed. The dispute centred on whether the Shire Council was correct in imposing the penalty and whether the plaintiff had breached the planning laws. The case was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the tribunal erred in law by not granting a further adjournment and whether the onus of proof was on the Council to prove that a permit was required. Additionally, the court had to determine if the plaintiff had admitted to breaching the planning laws. These issues were crucial to resolving the dispute and determining the appropriate outcome of the case.

The court found that the tribunal had not erred in declining to grant a further adjournment as the plaintiff had ample opportunity to present their case. The court also held that the onus of proof was on the plaintiff to demonstrate that a permit was not required, rather than on the Council to prove that it was. Furthermore, the court concluded that the plaintiff had not admitted to breaching the planning laws. These findings led the court to dismiss the plaintiff's application for judicial review, affirming the tribunal's decision.

The court's decision resulted in the dismissal of the plaintiff's application for judicial review. The penalty notice imposed by the Shire Council remained in effect, and the tribunal's decision was upheld. The plaintiff was not granted relief from the penalty, and the planning laws were deemed to have been complied with in this instance. The court's ruling emphasised the importance of the onus of proof and the procedural fairness in administrative law matters.

Orders