Hunnam v Evans - [2003] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 5560 of 2003

NORMA CONSTANCE HUNNAM	Plaintiff
v
PETER EVANS	First Defendant
ELOISE CASAMENTO	Second Defendant
GLEN EIRA CITY COUNCIL	Third Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2003
DATE OF JUDGMENT:	6 August 2003
CASE MAY BE CITED AS:	Hunnam v Evans
MEDIUM NEUTRAL CITATION:	[2003] VSC 284

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APPEAL FROM TRIBUNAL – Appeal against an order of the Victorian Civil and Administrative Tribunal (“VCAT”) under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – grant of permit for additions to existing building and its use for the purpose of an aged care facility – property subject to the Glen Eira Planning Scheme (“the planning scheme”) and Amendment C25 (“the amendment”) to the planning scheme – limited reference made to the planning scheme and amendment in its reasons for decision - whether the nature of the decision of VCAT suggested some error which might have been due to it not giving proper consideration to the provisions of the planning scheme and the amendment – no vitiating error of law - appeal dismissed.

Planning and Environment Act 1987 – Part 1A
Victorian Civil and Administrative Tribunal Act 1998 – ss.117, 148

Albury-Wodonga Development Corporation v Fitzpatrick [1982] VR 165
Ansett Transport Industries Pty Ltd v Wraith (1983) 48 ALR 500
Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23
Berbers v Transport Accident Commission [2002] VSC 211
Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903
Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) VSCA 167
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Life Assurance Society Limited [1976] VR 592
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65
National Trust of Australia (Victoria) v Australian Temperance and General Mutual
Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Re Poyser and Mills’ Arbitration [1964] 2 QB 467
Shalit and Faine v Jackson Clement Burrows [2002] VSC 528
Spurling v Development Underwriting (Vic) Pty Ltd (1973) VR 1
Yendall v Smith Mitchell and Co Ltd [1953] VLR 369

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr CW Porter	Andrew T Fraser & Associates
For the Third Defendant	Mr G Peake	Lewis Holdway

HER HONOUR:

Introduction

This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal, constituted by Mr Marsden, Senior Member, and Mr Hewet, Member, (“the Tribunal”) on 3 April 2003, in its Planning List. Leave to appeal was granted by this Court on 30 May 2003, pursuant to section 148 of the VCAT Act.

By the order under appeal 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: [2003] VSC 284
Decision Date: 6 August 2003

CaseChat Overview and Summary

In this matter, the appellant, Hunnam, sought to appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT) concerning the grant of a permit for additions to an existing building and its use for an aged care facility. The property in question was subject to the Glen Eira Planning Scheme and Amendment C25. The appellant contended that VCAT's decision may have been vitiated by an error of law due to the Tribunal not giving proper consideration to the provisions of the planning scheme and amendment. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether VCAT's decision was vitiated by an error of law, specifically whether the Tribunal failed to properly consider the provisions of the planning scheme and amendment. The appellant argued that VCAT did not reference the planning scheme and amendment in its reasons for decision, suggesting that the Tribunal overlooked the impact of the planning scheme on the proposed development. The respondent, Evans, contended that there was no vitiating error of law in VCAT's decision.

The court found that there was no vitiating error of law in VCAT's decision. It held that the limited reference made to the planning scheme and amendment in VCAT's reasons for decision did not suggest that the Tribunal failed to properly consider the provisions of the planning scheme and amendment. The court considered that VCAT was required to consider the planning scheme and amendment, but it was not necessary for the Tribunal to expressly reference the planning scheme and amendment in its reasons for decision. The court found that VCAT had given proper consideration to the planning scheme and amendment and that the decision was not vitiated by an error of law.

The appeal was dismissed, and the decision of VCAT was upheld. The court did not make any further orders.

Orders