Couttie v Bayside Council & ors - [2016] VSC 772

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2015 06495

ANTHONY COUTTIE and DORA COUTTIE	Plaintiffs
v
BAYSIDE COUNCIL & ORS	Defendants

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 & 6 September 2016
DATE OF JUDGMENT:	14 December 2016
CASE MAY BE CITED AS:	Couttie v Bayside Council & ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 772

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PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for planning permit to develop land in Neighbourhood Residential Zone for three dwellings – Bayside Planning Scheme – Whether development exempt from permit requirement under Design and Development Overlay cl 43.02 – Purpose of Neighbourhood Residential Zone cl 32.09 – Application of transitional provision cl 32.09-3 – Whether the Tribunal failed to take relevant considerations into account – Statutory construction principles – Leave to appeal granted – Appeal allowed – Proceeding remitted to the Tribunal for determination according to law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. O’Brien	DSA Law, Lawyers & Consultants
For the Defendants	No appearance

HER HONOUR:

The plaintiffs seek leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 30 November 2015 setting aside the decision of the responsible authority and granting a permit for the development of land at 14 Normanby Street, Brighton.

The proposed development involves the demolition of the existing dwelling and the construction of a building consisting of three apartments with an attic and basement parking. Two apartments share the ground floor and third apartment is located under the roof on the second level (in the attic).

Bayside City Council refused to grant a permit for the proposed development on the grounds that the proposal was contrary to the provisions of cls 32.09, 22.05 and 52.06 of the Bayside Planning Scheme, the building had an excessive footprint and failed to comply with the provisions of ResCode cl 55, including in relation to neighbourhood character, side and rear setbacks, solar access to open space and front fences.[1]
[1]Pintar v Bayside CC [2015] VCAT 1880 [1].

Prior to the hearing in the Tribunal, the applicants circulated amended plans that included minor changes to the basement, minor increases in the setbacks to the ground and first floor, and an updated roof plan.

The review conducted by the Tribunal was a ‘repeat appeal’. The Tribunal had previously refused to grant a permit for the proposed development.[2] It found that while the site was not in an area in which the policy framework encouraged the redevelopment of the site in a manner that contributed to increased housing diversity and urban consolidation objectives, the framework did not preclude consideration of the type of development proposed.[3] However, the proposed building was not acceptable having regard to heritage considerations.[4] Furthermore, it had an unacceptable impact on the…

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: [2016] VSC 772
Decision Date: 14 December 2016

CaseChat Overview and Summary

The applicants in this case, Couttie, sought leave to appeal and an appeal from the Victorian Civil and Administrative Tribunal’s (VCAT) decision to deny their application for a planning permit. The permit would have allowed them to develop land in a Neighbourhood Residential Zone in Bayside for three dwellings. The respondents were Bayside Council and others. The dispute involved the interpretation of the Bayside Planning Scheme, particularly the exemption from the permit requirement under Design and Development Overlay clause 43.02, and the purpose of the Neighbourhood Residential Zone clause 32.09, including the application of the transitional provision clause 32.09-3.

The primary legal issues before the court were whether the Tribunal failed to take into account relevant considerations when deciding the application and whether the Tribunal correctly interpreted the Bayside Planning Scheme. Specifically, the applicants argued that the Tribunal did not properly consider the exemption from the permit requirement under Design and Development Overlay clause 43.02 and did not correctly apply the transitional provision clause 32.09-3. The court needed to determine whether the Tribunal’s decision was legally sound and whether it complied with the statutory construction principles.

The court found that the Tribunal did not adequately consider the exemption from the permit requirement and the transitional provision. The court held that the Tribunal failed to properly apply the statutory construction principles, leading to an error in the decision-making process. Consequently, the court granted leave to appeal and allowed the appeal. The matter was remitted to the Tribunal for a new determination according to law, ensuring that all relevant considerations were properly taken into account.

The final orders of the court included granting leave to appeal, allowing the appeal, and remitting the proceeding to the Tribunal for a fresh determination in accordance with the law. The court's decision emphasised the importance of correct statutory interpretation and the need for tribunals to consider all relevant provisions when making planning decisions.

Orders