Gray v Minister for Energy, Environment & Climate Change

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.