Glen Eira City Council v Gory - [2001] VSC 306

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 4947 of 2001

GLEN EIRA CITY COUNCIL	Appellant
v
MICHAEL GORY	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2001
DATE OF JUDGMENT:	28 August 2001
CASE MAY BE CITED AS:	Glen Eira v Gory
MEDIUM NEUTRAL CITATION:	[2001] VSC 306

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PLANNING – Appeal from the Victorian Civil and Administrative Tribunal – the appellant Council refused to grant the respondent’s application for a permit to construct an additional unit within an existing block of three units – the respondent made an application to the Tribunal to review the decision, and the Tribunal set aside the Council’s decision and directed that a permit be granted – the Council now appeals against the Tribunal’s decision – “incremental change” policy and its application to the review of residential development – the meaning of incremental change – matters which the responsible authority or Tribunal are required to “consider, as appropriate” under the relevant planning scheme.

Planning and Environment Act 1987 – sections 6(1)(aa), 7(3)(a), 12A, 52, 60, 84B.
Victorian Civil and Administrative Tribunal Act 1998 – section 148.

Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr CJ Wren	Maddock Lonie & Chisholm
For the Respondent	Mr I McP Pitt	Best Hooper

HER HONOUR:

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’), constituted by Mr Quirk, Member, on 20 February 2001 in its Planning List. Leave to appeal was granted by this Court on 25 May 2001.

On 4 May 2001 the respondent lodged with the appellant (“the Council”) as responsible authority an application for a permit to construct an additional unit within an existing block of three units on land at 19 Norwood Road, North Caulfield (“the subject land”). The application was advertised in accordance with section 52 of the Planning and Environment Act 1987 (“the Act”) by a notice on site and by mail to adjoining owners and occupiers, and no objections were received. On or about 1 September 2000 the Council issued a Notice of Refusal to grant the permit. The respondent applied to the Tribunal for review of that decision, and the Tribunal set aside the decision of the Council and directed that a permit be granted.

In the course of its reasons for decision (“the reasons”) the Tribunal said:

Planning Provisions
5.The land is zoned Residential 1. . . . Construction of two or more dwellings on a site is subject to clause 34.01-4 of the scheme requiring a planning permit. The Good Design Guide is to be used in the consideration of an application for medium density housing. The relevant State and Local Planning Policy Frameworks apply to this application.
6.The City of Glen Eira has a particular…

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: [2001] VSC 306
Decision Date: 28 August 2001

CaseChat Overview and Summary

The case involves an appeal by Glen Eira City Council against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that set aside the Council's refusal to grant a permit to the respondent, Gory, to construct an additional unit within an existing block of three units. The Council's decision was based on its application of the "incremental change" policy outlined in the Planning and Environment Act 1987. The respondent appealed to VCAT, which found in their favour, leading the Council to appeal to the court.

The central legal issues the court had to decide were the correct interpretation and application of the "incremental change" policy under the Planning and Environment Act. The court also needed to determine whether the Tribunal had properly exercised its discretion in setting aside the Council's decision. The Council argued that the Tribunal had misapplied the "incremental change" policy by failing to consider relevant factors and by not properly applying the policy to the specific circumstances of the case.

In its reasoning, the court examined the relevant provisions of the Planning and Environment Act, particularly sections 6(1)(aa), 7(3)(a), 12A, 52, 60, and 84B, and the Victorian Civil and Administrative Tribunal Act 1998, particularly section 148. The court found that VCAT had correctly interpreted the "incremental change" policy and applied it appropriately in the context of the respondent's application. The court also concluded that the Tribunal had properly exercised its discretion in setting aside the Council's decision, noting that the Tribunal had considered the relevant factors and made a decision that was not irrational.

The court dismissed the Council's appeal and upheld the Tribunal's decision. The orders of the court were that the decision of VCAT be upheld, and the Council was required to grant the permit to the respondent for the construction of an additional unit within the existing block of three units.

Orders