Gray v McRae and Ors - [2019] VSC 329

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

---

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

---

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

---

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…

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.

Continue reading Gray v McRae and Ors

Details

AGLC: Gray v McRae [2019] VSC 329
Case: [2019] VSC 329
Decision Date: 20 May 2019

CaseChat Overview and Summary

In the matter of Gray v McRae and Ors, the applicant, Gray, sought leave to appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The dispute revolves around town planning matters, specifically concerning the assessment of an application for planning permits. The respondents, McRae and others, were parties to the original VCAT decision which Gray sought to challenge. The Supreme Court of Victoria was the forum for Gray's application for leave to appeal.

The primary legal issue before the court was whether Gray had a real prospect of success if the appeal were to proceed. This question necessitated an examination of the merits of Gray's arguments and the likelihood of these arguments prevailing in an appellate court. The court had to consider whether the errors alleged by Gray were substantial enough to warrant an appeal. Additionally, the court needed to assess whether the decision of VCAT was so palpably wrong that it would be just and convenient to allow an appeal.

The Supreme Court determined that Gray did not have a real prospect of success on appeal. The court was of the view that the arguments advanced by Gray were not compelling enough to suggest that VCAT had erred in a manner that would be reversible on appeal. The court found that VCAT had adequately considered the relevant planning principles and evidence. Given this, the court concluded that there was no substantial miscarriage of justice that would justify granting leave to appeal. Consequently, the application for leave to appeal was dismissed, aligning with the statutory requirements of section 148 of the Victorian Civil and Administrative Tribunal Act 1998.

Orders