Colonial Range v CES-Queen (Gantry) - [2017] VSC 256

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 2602

COLONIAL RANGE PTY LTD (ACN 070 855 220)	Plaintiff
v
CES-QUEEN (VIC) PTY LTD (ACN 153 232 663)	First Defendant
CITY OF MELBOURNE	Second Defendant
THE BUILDING APPEALS BOARD (constituted by a Panel comprising Stephen Lodge, Rebecca Cameron and Joe Zita)	Third Defendant
GERARD COUTTS (in his capacity as Chairperson of the Building Appeals Board)	Fourth Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2016
DATE OF JUDGMENT:	5 June 2017
CASE MAY BE CITED AS:	Colonial Range v CES-Queen (Gantry)
MEDIUM NEUTRAL CITATION:	[2017] VSC 256

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JUDICIAL REVIEW – Failure to consider a relevant matter in making an administrative decision – Whether council failed to have regard to significant evidence relevant to its statutory function to make an administrative decision – Failure to give adequate reasons for an administrative decision – Whether council met the requisite standard of written reasons.

STATUTORY DUTIES OF LOCAL GOVERNMENT BODIES – Building work precautions – Protection of the public – Respective roles of building surveyor and council under Building Regulations 2006 including Building Regulation 604 – Whether councils must have regard to public safety under Building Regulations 2006, Building Regulation 604(4) – Whether councils must have regard to the objects and purposes of Local Government Act 1989 s 3C – Interaction of Building Act 1993 and Local Government Act 1989.

JUDICIAL REVIEW – Order in the nature of certiorari quashing a tribunal’s decision – Whether the tribunal must be differently constituted after its initial decision is quashed –Practicality and expense of reconstituting tribunal – Perception of a fair hearing.

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Parties’ submissions:

Opening Submissions:

Plaintiff’s Submissions dated 16 August 2016
First defendant’s Submissions dated 23 August 2016

Closing Submissions:

Plaintiff’s Submissions dated 23 September 2016
First defendant’s Submissions dated 3 October 2016
Plaintiff’s Reply Submissions dated 10 October 2016

Appearances	Counsel	Solicitors
For the Plaintiff	Mr J Pizer QC with Mr N Wood	Norton Gledhill
For the First Defendant	Mr M Roberts QC with Ms C Symons	Moray & Agnew
For the Second Defendant	By letter to the Court dated 13 July 2016 the second defendant advised that it submits to the jurisdiction and determination of the court, save and except that the second defendant reserves its rights to be heard on the question of costs.	Chief Legal Counsel, City of Melbourne
For the Third and Fourth Defendants	The third and fourth defendants advised that they submit to the jurisdiction and determination of the Court, save and except that they reserve their rights to be heard on the question of costs.	Robert Dalton, Victorian Building Authority

HIS HONOUR:

Background

The first defendant (CES-Queen) owns 150 Queen Street, Melbourne. It wants to replace the existing building on that site with a large, multi-storey tower to be known as “Tower Melbourne”.

The plaintiff (Colonial) owns an adjoining property at 140 Queen Street, Melbourne. Colonial leases…

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 Colonial Range v CES-Queen (Gantry)

Details

AGLC: Colonial Range v CES-Queen (Gantry) [2017] VSC 256
Case: [2017] VSC 256
Decision Date: 5 June 2017

CaseChat Overview and Summary

The applicant, Colonial Range, sought judicial review of a decision made by CES-Queen (Gantry), concerning a building permit. The dispute was heard in the Supreme Court of Queensland. The applicant argued that CES-Queen failed to properly consider relevant evidence and statutory obligations when issuing a building permit, and that the reasons provided for the decision were inadequate.

The primary legal issues were whether CES-Queen failed to have regard to significant evidence and statutory obligations in making its decision, and whether the reasons provided met the requisite standard. The court examined whether CES-Queen was required to consider public safety under Building Regulation 604(4) of the Building Regulations 2006 and the objects and purposes of section 3C of the Local Government Act 1989. The court also needed to determine the interaction between the Building Act 1993 and the Local Government Act 1989 in this context.

The court found that CES-Queen did not adequately consider the evidence and statutory obligations, particularly in relation to public safety. The reasons provided for the decision were also deemed insufficient. The court quashed the decision of CES-Queen, finding it was made without proper consideration of relevant evidence and statutory obligations, and that the reasons provided were inadequate. The court did not consider it necessary to reconstitute the tribunal, given the practicality and expense involved, and the perception of a fair hearing.

The court ordered the decision of CES-Queen to be quashed and remitted the matter back to CES-Queen for reconsideration, taking into account the matters the court had identified as being improperly overlooked.

Orders