DSG Pty Ltd v Victorian WorkCover Authority - [2008] VSC 42

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION VALUATION, COMPENSATION AND PLANNING LIST

No. 8257 of 2007

MAROONDAH CITY COUNCIL	Appellant
v
JAN AND JEFF SCOTT	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 FEBRUARY 2008
DATE OF JUDGMENT:	21 FEBRUARY 2008
CASE MAY BE CITED AS:	MAROONDAH CITY COUNCIL v SCOTT
MEDIUM NEUTRAL CITATION:	[2008] VSC 42

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Appeal on a question of law from the Planning division of the Victorian Civil and Administrative Tribunal – Tribunal’s decision to set aside permit condition requiring a 5% contribution towards public open space – Exemption in planning scheme provision if Council of view land unlikely to be further subdivided – Condition imposed by Tribunal in order to prevent further subdivision – Condition supported by valid planning purpose - Condition fairly and reasonably relating to proposal – Condition not effective for stated purpose – Condition not reasonably open having regard to stated reasons - S. 148 Victorian Civil and Administrative Tribunal Act 1988 – S. 18 Subdivision Act 1988 – Cl. 52 Maroondah Planning Scheme.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A. Finanzio	Maddocks
For the Respondents	The matter was unopposed
HIS HONOUR:

This is an appeal from a decision of the Victorian Civil and Administrative Tribunal with respect to a planning permit to subdivide land.
It is brought pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 on questions of law.
The subdivision permitted created two lots each containing an existing dwelling house, from a single lot presently containing two dwelling houses. The plan approved indicates the location of the two houses.[1]
[1] See Appendix A.
Following the grant of the permit, the owner successfully appealed the conditions of the permit, including proposed condition 4 which provided:
The applicant or owner must pay to Council a sum equivalent to 5% of the site value of all land in the subdivision or a particular lot or lots. This payment shall be made prior to the issue of a statement of compliance and may be adjusted in accordance with s.19 of the Subdivision Act.[2]
[2] The reference to a statement of compliance is a reference to the statement required by s.21 of the Subdivision Act 1988 (“the Subdivision Act”).
Such condition was imposed in purported reliance upon clause 52.01 of the Maroondah Planning Scheme which provides:
PUBLIC OPEN SPACE CONTRIBUTION AND SUBDIVISION
A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.
A public open space contribution may be made only once for any…

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: [2008] VSC 42
Decision Date: 21 February 2008

CaseChat Overview and Summary

The Victorian WorkCover Authority, as the appellant, sought an appeal against the Planning Division of the Victorian Civil and Administrative Tribunal (VCAT) in the case of DSG Pty Ltd v Victorian WorkCover Authority. The central issue was the Tribunal's decision to set aside a permit condition that required a 5% contribution towards public open space. The respondent, DSG Pty Ltd, argued that the exemption in the planning scheme provision applied because the Council had determined that the land was unlikely to be further subdivided. VCAT imposed the condition to prevent further subdivision, but the WorkCover Authority argued that the condition was not effective for the stated purpose and was not reasonably open based on the provided reasons.

The court examined the validity of the planning purpose behind the condition, which was to prevent further subdivision. It determined that the condition was supported by a valid planning purpose and fairly and reasonably related to the proposal. However, the court also considered whether the condition was effective for the stated purpose and if it was reasonably open given the reasons provided. The court found that while the condition was based on a valid planning purpose, it was not effective in preventing further subdivision as the land was unlikely to be subdivided, and thus, the condition was not reasonably open.

In its reasoning, the court referred to Section 148 of the Victorian Civil and Administrative Tribunal Act 1988 and Section 18 of the Subdivision Act 1988. It also considered Clause 52 of the Maroondah Planning Scheme, which provided the exemption for land unlikely to be subdivided. The court concluded that although the condition was supported by a valid planning purpose, it was not reasonably open having regard to the stated reasons, particularly as the land was unlikely to be further subdivided.

The final orders of the court were to dismiss the appeal on a question of law and uphold the Tribunal's decision to set aside the permit condition requiring a 5% contribution towards public open space. The court found that the condition was not effective for the stated purpose and was not reasonably open based on the provided reasons. This decision highlights the importance of considering the effectiveness and reasonableness of conditions imposed under planning schemes.

Orders