Gray v Minister for Energy, Environment & Climate Change - [2020] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0077

JAMES GRAY	Applicant
v
MINISTER FOR ENERGY, ENVIRONMENT & CLIMATE CHANGE & ORS (according to the attached schedule)	Respondents

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JUDGES:	TATE, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2020
DATE OF JUDGMENT:	13 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 121
JUDGMENT APPEALED FROM:	[2019] VSC 382 (Osborn JA)

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TOWN PLANNING – Appeal to Trial Division from decision of Victorian Civil and Administrative Tribunal – Decision of Tribunal to refuse permit for proposed dwelling and works – Tribunal refused permit on grounds including lack of access to site, failure of plan to comply with environmental requirements and unacceptable bushfire risk – Whether judge erred in upholding finding by Tribunal that applicant did not have requisite access to site – Whether access track across unreserved Crown land adjoining site a public highway – Whether common law principles applicable to determine whether part of Crown land a public highway – Whether judge erred in concluding that section of Planning Scheme relating to bushfire risk applied to site – Whether judge erred in concluding that Tribunal correct in determining bushfire risk – Whether appeal futile if leave granted – Leave to appeal refused – Bass Coast Shire Council v King [1997] 2 VR 5 considered – Anderson v City of Stonnington [2017] VSCA 229 distinguished – Yarra Ranges Planning Scheme cls 13.02-IS, 13.05, 35.06.2, 44.06, 53.02, 65.01, 71.02.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gray in person	--
For the First Respondent	Mr R Appudurai	Victorian Government Solicitor’s Office
For the Fourth Respondent	Mr I Munt	In house, Country Fire Authority

TATE JA

BEACH JA

KAYE JA:

In late 2007, the applicant’s wife purchased a 3.6 hectare bush block at

585 Myers Creek Road, Healesville (‘the site’). In due course, the applicant made three successive applications for planning permits to enable the land to be used and developed as a dwelling. On each occasion, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) determined that no permit should be granted. The applicant sought leave to appeal against the third decision made by the Tribunal,[1] pursuant to s 148 of the Victorian Civil and Administrative Appeal Tribunal Act 1998. The judge, who heard the application, refused the applicant leave to appeal against the decision of the Tribunal.[2] The applicant now seeks leave to appeal that decision to this Court.
[1]Department of Environment, Land, Water and Planning v Yarra Ranges SC [2019] VCAT 323 (‘Tribunal Reasons’).
[2]Gray v Minister for Energy, Environment and Climate Change [2020] VSC 382 (‘Reasons’).

The site is a vacant parcel of land that is generally rectangular in shape. It is located at the base of the Myers Creek valley with heavily vegetated, steep slopes rising in each direction. Myers Creek, which separates the site from Myers Creek Road, flows along the site’s eastern boundary. A tributary of the creek flows from west to east into and bisecting 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: [2020] VSCA 121
Decision Date: 13 May 2020

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) that refused a permit for a proposed dwelling and associated works. The applicant argued the Tribunal had erred in determining that the access to the site was inadequate, that the proposed works did not comply with environmental requirements, and that there was an unacceptable bushfire risk. The matter was heard in the County Court of Victoria, with the Court subsequently declining to grant leave to appeal to the Supreme Court of Victoria.

The central issues before the Court were whether the Tribunal had correctly determined that the applicant lacked requisite access to the site, whether a section of unreserved Crown land adjacent to the site constituted a public highway, and whether the Tribunal had properly assessed the bushfire risk in relation to the proposed works. The Court also considered whether the appeal would be futile if leave to appeal were granted.

The Court held that the Tribunal was correct in finding that the applicant did not have adequate access to the site, as the access track across the unreserved Crown land did not meet the criteria to be considered a public highway. The Court applied common law principles to determine that the land in question was not a public highway and thus did not provide the necessary access. The Court further found that the relevant section of the Planning Scheme applied to the site and that the Tribunal had correctly assessed the bushfire risk. Consequently, the Court dismissed the appeal and refused leave to appeal, finding that any appeal would be futile.

The Court's decision was final, with no further appeal possible. The refusal of the permit by VCAT was upheld, and the applicant's plans for the proposed dwelling and works could not proceed without further amendments to address the identified issues.

Orders