Curry v Melton Shire Council - [2000] VSC 352

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

Not Restricted

No. 4915 of 2000

RON CURRY	Appellant
V
MELTON SHIRE COUNCIL	Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 10 August, 2000
DATE OF JUDGMENT:	8 September 2000
CASE MAY BE CITED AS:	Curry v Melton Shire Council
MEDIA NEUTRAL CITATION:	[2000] VSC 352

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PLANNING – Appeal from the Victorian Civil and Administrative Tribunal – Applicant granted permit by Respondent for the subdivision of land – Application made to the Tribunal for review of certain conditions in the permit – Condition 17 required the Applicant to enter into an agreement with the Respondent to “provide for services and facilities or contributions towards services and facilities required to meet the needs of population growth from residential subdivision of the subject land” – Order made by the Tribunal replacing Condition 17 with a condition which required the Applicant to contribute moneys in accordance with the Respondent’s Development Contributions Plan (“DCP”) – DCP was not an approved DCP pursuant to section 46H of the Planning and Environment Act 1987 – Whether the imposition of the replacement Condition 17 was authorised by section 62 of the Planning and Environment Act 1987 –
Whether, if Condition 17 was invalid, it was severable from the rest of the permit.

Interpretation of Legislation Act 1984; s 35
Planning and Environment Act 1987; ss 46H, 62(1), (2) (5), (6), 173, 174, 181, 182
Planning and Environment (Development Contributions) Act 1995; s 62(2)(h)

Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72
Re Boucher [1995] 1 VR 110
Spurling v Development Underwriting [1963] VR 1

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Morris QC	Phillips Fox
For the Respondent	Mr H McM Wright QC with Mr M Townsend	Maddock Lonie & Chisholm

HER HONOUR:

Introduction

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against part of the order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 23 February 2000 in its Planning List. Leave to appeal was granted by this Court on 3 May 2000.

On 30 April 1999 the respondent (“the Council”), as responsible authority under the Melton Planning Scheme, issued to the appellant a permit to subdivide certain land in Bulmans Road, Melton into 208 lots. The appellant applied to the Tribunal under section 80 of the Planning and Environment Act 1987 (“the Act”) for review of certain conditions in the permit, one of which, condition 17, read:

17.The owner must enter into an agreement under Section 173 of [the Act] with the Responsible Authority to provide for services and facilities or contributions towards services and facilities required to meet the needs of population growth from residential subdivision of 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: [2000] VSC 352
Decision Date: 8 September 2000

CaseChat Overview and Summary

Curry, an applicant for a subdivision permit, appealed against a decision of the Victorian Civil and Administrative Tribunal which replaced a condition of the permit with a new condition requiring a financial contribution in accordance with the Melton Shire Council’s Development Contributions Plan. The applicant argued that the Development Contributions Plan was not an approved plan as required by section 46H of the Planning and Environment Act 1987, and that the Tribunal did not have the authority to replace the condition as per section 62 of the Planning and Environment Act 1987. Additionally, the applicant contended that if the replacement condition was invalid, it was not severable from the remainder of the permit.

The court was required to determine whether the Tribunal had the authority to replace the condition of the permit as per section 62 of the Planning and Environment Act 1987, and whether the replacement condition was authorised. The court also needed to ascertain whether the invalid condition was severable from the remainder of the permit.

The court found that the Tribunal did not have the authority to replace the condition as per section 62 of the Planning and Environment Act 1987, as the Development Contributions Plan was not an approved plan as required by section 46H of the Act. The court noted that the Tribunal’s power to replace a condition of a permit was limited to cases where the condition was invalid or could not be complied with, and where the replacement condition was authorised by the Act. The court also found that the invalid condition was not severable from the remainder of the permit, as it was an integral part of the permit and could not be enforced without the invalid condition.

The court quashed the decision of the Tribunal, set aside the replacement condition, and remitted the matter to the Tribunal for reconsideration in light of the court’s decision. The court did not make any orders regarding costs.

Orders