Gray v McRae and Ors
[2019] VSC 329
•20 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 01975
| James Gray | Applicant |
| v | |
| Jeanette McCrae | First Respondent |
| Yarra Ranges Shire Council | Second Respondent |
| Melbourne Water | Third Respondent |
| Country Fire Authority | Fourth Respondent |
| Minister for Energy, Environment & Climate Change | Fifth Respondent |
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JUDGE: | Osborn JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2019 |
DATE OF JUDGMENT: | 20 May 2019 |
CASE MAY BE CITED AS: | Gray v McRae & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 329 |
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Town planning – Application for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 – No real prospect of success – Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gray (in person) | Self-represented |
| For the Fourth Respondent For the Fifth Respondent | Mr I Munt Mr R Appudurai | In house counsel, CFA Victorian Government Solicitor’s Office |
HIS HONOUR:
The applicant Mr Gray seeks leave to appeal against a decision of the administrative division of the Victorian Civil and Administrative Tribunal in the Planning and Environment List (‘the Tribunal’). On 28 April 2017 the Tribunal allowed an application to review the decision to grant a planning permit to Mr Gray for the use of land at Myers Creek Road, Healesville for the purposes of a dwelling and for associated buildings, works and vegetation removal.
When Mr Gray first lodged his application for a permit Ms McCrae objected to the proposal on two grounds:
(a) Adverse impact on the vegetation, biodiversity and environmental sensitivity of the site and surrounding locality;
(b) Failure to protect and enhance remnant vegetation.
The responsible authority determined to grant a planning permit for the proposal but Ms McCrae then applied to review the responsible authority’s decision pursuant to s 82 of the Planning and Environment Act 1987 (‘P&E Act’).
In response to the application for review Mr Gray challenged Ms McCrae’s standing before the Tribunal by way of an application pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) for summary dismissal. Section 75(1) provides:
(1)At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.
The summary dismissal application was heard pursuant to s 75(3) on 4 November 2015 by Deputy President Dwyer who is a legal member of the Tribunal.
Mr Gray submitted that the postal address on Ms McCrae’s documentation was a post office box in Woori Yallock, a location too remote from the review site for Ms McCrae to be a person who ‘may be affected’ by the grant of the proposed permit in terms of s 57(1) of the P&E Act. Nor it was submitted was she a person affected by the decision of the responsible authority in terms of s 82B(1) of the P&E Act. More particularly Mr Gray submitted that Ms McCrae did not live in the Myers Creek Valley which runs South from Toolangi to Healesville.
In response Ms McCrae stated that she in fact lived at Healesville some eight kilometres from the review site. She explained she objected in particular to the loss of native vegetation and the risk of sedimentation in Myers Creek which would arise from the proposal. She also relied on an extended history of involvement in local environmental activities and the fact that the council had accepted her objection as a proper one.
In response Mr Gray submitted that the key fact was where Ms McCrae lived. He further submitted that her evidence that she lived at Healesville should be rejected having regard to the location of her post office box.
The Deputy President rejected the s 75 application holding that he was not satisfied that Ms McCrae was acting frivolously or vexatiously ‘nor is her application necessarily lacking in substance’. In his view Ms McCrae’s asserted interest in the local environment gave her sufficient standing. He further said: ‘I think her involvement in local environment issues and her concerns about incremental change can be tested at the hearing’.[1]
[1]Transcript 4 November 2015, p.19.
Subsequently another division of the Tribunal constituted by Mr Hewet, a town planner, allowed the application for review.
Proposed grounds of appeal 1 and 2 to this Court, assert that the Tribunal erred in concluding Ms McCrae was a person relevantly ‘affected’ by the proposal and the decision of the responsible authority.
In my view these grounds have no real prospect of success:[2]
[2]Metricon Homes Pty Ltd v Softley & Anor (2016) 49 VR 746.
(a) The decision impugned was made by Deputy President Dwyer and the application for leave to appeal was not made within the time fixed by s 148.
(b) The decision was interlocutory and did not purport to finally determine the issue raised by Mr Gray.
(c) The standing of Ms McCrae could have been further pursued at the full hearing, but it was not.
(d) There are no formal requirements for an application under s 75(1) or under the Tribunal’s rules. The Deputy President was entitled to proceed on the basis of the parties’ submissions. The Tribunal was not bound by the rules of evidence.[3]
(e) The planning controls affecting the review site specifically raise environmental considerations of the type agitated by Ms McCrae. Further she put forward a prima facie case that she did in fact live reasonably proximate to the site and the catchment within which the site was located. On this basis she had a prima facie case that she was affected in the relevant sense. [4]
(f) In order for a summary dismissal application to succeed, the proceeding must be obviously hopeless, or so obviously unsustainable in fact or in law, that it could on no reasonable view justify relief, or must be bound to fail. This was not demonstrated to be such a case.[5]
[3]Section 98 VCAT Act.
[4]See Boerkamp v The Hon Matthew Guy [2014] VSC 167, [57]-[58].
[5]State Electricity Commission v Rabel [1988] 1 VR 102 (Tadgell JA, Ormiston JA, Phillips JA); Forrester v AIMS Corporation (2004) VSC 506 (Kaye J).
On the hearing of the merits review Mr Hewet was required to consider amongst other issues, whether a 400 metre access track through adjoining Crown land provided adequate access to the review site. The planning scheme required that a lot used for a dwelling must have access to the dwelling provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.
In this regard the Tribunal received submissions from the Department for Environment, Land, Water and Planning that the proposed use of the track was not licensed. The Department further submitted that there was lack of detail about the works and vegetation removal necessary to provide access adequate for CFA requirements. The Tribunal further received submissions from the Country Fire Authority (‘CFA’) that adequate access was critical in terms of bushfire safety.
On the other hand evidence submitted by Mr Gray supported the view that adequate access could be provided via the track. Mr Gray relied on the evidence of a civil engineer, Mr Russel Brown. No transcript of Mr Brown’s oral evidence is exhibited to the affidavits in support of the application.[6] But a report from Mr Brown was tendered which stated in part:
Having travelled up the approach road to your property and noting that it is more than capable of handling a gross load of 20 tonnes in a normal sized truck, I believe that your own roadway will in fact be able to handle like and similar…
[6]Cf City of St Kilda v Perplat Investments Pty Ltd (1990) 4 AATR 358 (Young CJ, Crockett and Southwell JJ).
Ultimately the Tribunal concluded:
73The submissions by the Council and the permit applicant that minor improvements and some ongoing maintenance is all that is required to make the track acceptable, is optimistic. The evidence on the matter is superficial and lacks the rigour necessary to enable a concluded view to be formed about the acceptability of the access track. Neither the CFA nor the Department are in a position to advise whether the permit applicant’s proposal for the track is acceptable and meets their requirements.
74The issue that I am required to resolve is focussed on the acceptability of the access arrangements and whether the resolution of those matters is appropriately dealt with by way of a secondary consent mechanism.
75With respect to the first issue, the existing condition of the track is not acceptable because in its existing condition, I am not be satisfied that emergency vehicles could reach the house in the event of an emergency. Consequently, the mandatory requirement of Clause 35.06-2 is not met. The level of works and the level and nature of vegetation removal necessary to achieve compliance under Clause 35.06-2 is not resolved to my satisfaction.
76Having regard to this site’s physical and strategic context, the environmental sensitivities and the extreme bush fire risk applying to the land, this is not an issue appropriately addressed by way of secondary consent. The access to the site from Myers Creek Road constitutes an integral component of the application. It would be highly irregular to contemplate granting a permit for a dwelling on this site in the absence of a high degree of certainty that appropriate access can be provided and that all necessary permissions or consents to undertake the works and maintain the access track have been obtained.[7]
[7]McRae v Yarra Ranges SC [2017] VCAT 583 (28 April 2017).
The further proposed grounds of appeal seek to challenge these conclusions. They are formulated by reference to a particular subsidiary factual issue.
3The Tribunal erred in concluding the access track to the subject property was not sufficiently wide to accommodate emergency vehicles and so did not comply with clause 35.06-2 of the Yarra Ranges planning scheme considering:
a.The CFA approved the use of the access track for emergency vehicles; and
b.The only direct evidence on the matter was from an engineer in support of the suitability of the access track for emergency vehicles and was unchallenged by any contrary evidence.
4There was a denial of natural justice when the Tribunal failed to give the Appellant an opportunity to specifically address its concerns about the width of the access track.
In my view the grounds mischaracterise both the CFA position and the Tribunal’s conclusions. As the Tribunal recorded the CFA in fact stated that it had concerns about the use of the track because in its current condition it did not meet emergency vehicle design and construction requirements. Further the Tribunal did not base its conclusion upon a specific finding as to the width of the road.
In order to effectively challenge the Tribunal’s conclusions as to access Mr Gray must show that the Tribunal was bound to accept that the track proposal was necessarily adequate. This is a heavy onus turning on questions of detailed fact.
In my view it was open to find on the basis of the material to which the Tribunal referred that the existing condition of the track had not been demonstrated to be adequate and that the level of works necessary to achieve compliance had not been adequately resolved. Moreover the whole of the evidence before the Tribunal is not before this Court.
Further it is apparent that Mr Gray did not demonstrate an ongoing right to use or carry out maintenance works upon the track.
As the Tribunal noted neither the CFA nor the Department were prepared to advise that the proposal for the track was acceptable and met their requirements.
Given the extreme bushfire risk attending the site the Tribunal was perfectly entitled to require that these issues be resolved at the permit stage rather than by way of secondary consent pursuant to conditions. As the Tribunal noted at one point in its reasons[8] the state planning policy framework in the planning scheme makes clear that the protection of human life must be prioritised over other policy considerations in planning and decision making in areas of risk from bushfires. Further where appropriate the precautionary principle must be applied to planning and decision making when assessing the risk to life, property and community infrastructure from bushfire.
[8]Reasons [56].
The Tribunal acted in accordance with these principles.
Insofar as proposed ground 4 seeks to allege a denial of natural justice it is not borne out by the Tribunal decision and the application is not supported by a transcript of the hearing. Moreover, contrary to Mr Gray’s submissions the matters placed before the Tribunal by the CFA and the Department squarely raised the issues upon which he failed.
In summary the proposed grounds of appeal have no real prospects of success and leave to appeal should be refused.
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