Carbone v Melton City Council - [2018] VSC 812

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST

S CI 2014 0421

PAOLO CARBONE

and

GAETANA CARBONE

Plaintiffs

MELTON CITY COUNCIL

and

REGISTRAR OF TITLES

First Defendant

Second Defendant

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JUDGE:	EMERTON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30, 31 May, 22 June 2018
DATE OF JUDGMENT:	21 December 2018
CASE MAY BE CITED AS:	Carbone v Melton City Council
MEDIUM NEUTRAL CITATION:	[2018] VSC 812

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VALUATION AND COMPENSATION – Growth Area planning – Amendment to Melton Planning Scheme to allow urban development of land subject to compliance with precinct structure plan and development contributions plan – Plaintiffs’ land vested in the Council by registration of plan of subdivision – Plaintiffs made no enquiries about compensation payable – Council only prepared to pay compensation calculated on the basis of land values in the development contributions plan – Plaintiffs demanded compensation for market value of land assessed under Land Acquisition and Compensation Act 1986 (‘LAC Act’) – Whether vesting of the land in the Council an ‘acquisition’ for the purposes of ss 3 and 4 of the LAC Act – Whether the Council breached statutory duties by not giving notices under Part 2 of the LAC Act – Whether compensation to be assessed under Parts 3 and 4 of the LAC Act – LAC Act inapplicable – No breach of statutory duty – Whether Council required to make restitution for unjust enrichment – No unjust enrichment – Proceeding dismissed – Charter of Human Rights and Responsibilities Act 2006 ss 20, 32 – LAC Act ss 3, 4, 5, 6, 7, 8, 18, 22, 30, 37, 41, 43, 53 – Local Government Act 1989 s 187 – Planning and Environment Act ss 46I, 46J, 46P, 80, 82, 172, 173 – Subdivision Act 1988 ss 5, 22, 24 – Supreme Court Act 1986 ss 58, 60.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Barber	Purcell & Purcell
For the First Defendant	Mr P Chiappi	Harwood Andrews

HER HONOUR:

Introduction

The plaintiffs, Mr and Mrs Carbone, were until 6 March 2012 the registered proprietors of approximately ten hectares of land at 828–850 Taylors Road, Plumpton, Victoria (‘Land’). The Land was situated within the urban growth boundary.

On 18 June 2010, the plaintiffs entered into a contract of sale for part of the Land with a residential developer, York Place Pty Ltd (‘Purchaser’). It was anticipated that the Land would initially be subdivided into two lots: ‘Lot A’ and ‘Lot B’. The plaintiffs would retain Lot A and Lot B would be sold to the Purchaser. The sale of Lot B to the Purchaser was contingent upon the subdivision of the Land as set out in a proposed plan of subdivision. Under the contract of sale, the purchase price was payable by a deposit on the signing of the contract, the sum of $1,701,300 was payable six months from the date of the contract or 30 days from registration of…

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: [2018] VSC 812
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the case of Carbone v Melton City Council, the plaintiffs sought compensation for their land, which was vested in the Melton City Council following the registration of a plan of subdivision. The dispute centred around the valuation and compensation for the land, with the plaintiffs arguing for compensation based on the market value assessed under the Land Acquisition and Compensation Act 1986 (Vic). The Council, on the other hand, was only willing to pay compensation based on the land values outlined in the development contributions plan. The matter was brought before the Supreme Court of Victoria to determine the appropriate legal framework for the valuation and compensation of the land.

The court had to decide whether the vesting of the plaintiffs' land in the Council constituted an 'acquisition' under sections 3 and 4 of the LAC Act. Additionally, the court needed to ascertain if the Council had breached any statutory duties by not providing notices as required under Part 2 of the LAC Act. Another key issue was whether compensation for the land should be assessed under Parts 3 and 4 of the LAC Act. Furthermore, the court had to determine if the Council was required to make restitution for any unjust enrichment.

The court found that the vesting of the land in the Council did not constitute an 'acquisition' for the purposes of the LAC Act. The court held that the LAC Act was inapplicable to the case. The Council was not found to have breached any statutory duties, and there was no unjust enrichment on the part of the Council. Consequently, the plaintiffs' proceeding was dismissed. The court's decision was based on the specific provisions of the LAC Act, the Local Government Act 1989, the Planning and Environment Act, the Subdivision Act 1988, and the Charter of Human Rights and Responsibilities Act 2006. The court's ruling effectively determined that the compensation for the land should be based on the values outlined in the development contributions plan, rather than the market value assessed under the LAC Act.

Orders