Iuele v Francis - [2013] VSC 637

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. S CI 2013 3200

PAOLO FRENCESCO IUELE & ORS	Applicants
v
GRAHAM STANLEY FRANCIS & ORS	Respondents

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2013
DATE OF JUDGMENT:	20 November 2013
CASE MAY BE CITED AS:	Iuele & Ors v Francis & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 637

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PLANNING AND ENVIRONMENT – Application for leave to appeal against the Order of the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Tribunal refused to grant a permit to use and develop land for the purposes of a farmers’ market – Whether there was a denial of procedural fairness as a result of observations made in the Tribunal’s reasons for decision about the enforceability of proposed conditions – Whether the Tribunal misconstrued the enforcement framework of the Planning and Environment Act 1987 (Vic) - Whether the Tribunal took into account an irrelevant consideration – Whether the Tribunal erred in law in misconstruing the policy objectives in the Melton Planning Scheme – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M Belmar	Hutchinson Legal
For the Respondents	No appearances

HER HONOUR:

Introduction

The applicants seek leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) from the order of the Victorian Civil and Administrative Tribunal made on 24 May 2013 by which the Tribunal set aside the decision of the Melton City Council to grant a permit for the use and development of part of the applicants’ land for a farmers’ market and refused a permit.[1]
[1]For reasons of convenience, the appeal was heard at the same time as the application for leave to appeal. However, none of the other parties to the Tribunal proceeding appeared to make submissions on the merits of the application for leave or in the proposed appeal and the Court did not have the benefit of hearing from a contradictor.

For the reasons that follow, leave to appeal is refused.

Background

The applicants proposed to develop a weekend farmers’ market on rural land owned by them near the township of Melton. The review site is in a Green Wedge Zone and is currently used for the purpose of Christmas tree sales. The proposal involves the establishment of 58 market stalls in large and small sheds, as well as 22 car boot sites. The proposal was described in the permit application as providing opportunities to sell locally harvested produce, as well as arts and crafts.

Although the Council granted a permit for the use and development of the land as a farmers’ market, the Tribunal refused a permit because it was not persuaded that the proposal represented an acceptable planning outcome. Even though some of the impacts of the proposal were acceptable or could be managed, the Tribunal was not…

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 Iuele v Francis

Details

AGLC: Iuele v Francis [2013] VSC 637
Case: [2013] VSC 637
Decision Date: 20 November 2013

CaseChat Overview and Summary

The applicant in this case sought leave to appeal against the Victorian Civil and Administrative Tribunal's (VCAT) decision to refuse a permit to use and develop land for a farmers’ market. The decision was made pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The Tribunal had determined that the proposed conditions of the permit were not enforceable and had taken into account an irrelevant consideration. The applicant argued that there was a denial of procedural fairness, a misconstruing of the enforcement framework under the Planning and Environment Act 1987, and an error in construing the policy objectives in the Melton Planning Scheme.

The primary legal issues before the court were whether the Tribunal's observations about the enforceability of the proposed conditions constituted a denial of procedural fairness, whether the Tribunal misconstrued the enforcement framework of the Planning and Environment Act, and whether the Tribunal had taken into account an irrelevant consideration and erred in law by misconstruing the policy objectives in the Melton Planning Scheme. The applicant argued that the Tribunal had failed to provide reasons for its decision regarding the enforceability of the proposed conditions, which amounted to a denial of procedural fairness. The applicant also contended that the Tribunal had misconstrued the enforcement framework under the Planning and Environment Act by considering the enforceability of the proposed conditions in the context of the permit application, rather than in the context of the enforcement of the permit itself. Furthermore, the applicant argued that the Tribunal had taken into account an irrelevant consideration by considering the potential for the proposed conditions to be enforced by the Melton Shire Council, and had erred in law by misconstruing the policy objectives in the Melton Planning Scheme.

The court found that the Tribunal's observations about the enforceability of the proposed conditions did not amount to a denial of procedural fairness, as the Tribunal had provided sufficient reasons for its decision. The court also found that the Tribunal had not misconstrued the enforcement framework of the Planning and Environment Act, as the Tribunal had correctly considered the enforceability of the proposed conditions in the context of the permit application. The court further found that the Tribunal had not taken into account an irrelevant consideration, as the potential for the proposed conditions to be enforced by the Melton Shire Council was relevant to the Tribunal's consideration of the permit application. Finally, the court found that the Tribunal had not erred in law by misconstruing the policy objectives in the Melton Planning Scheme, as the Tribunal had correctly interpreted the policy objectives in the context of the permit application. The court concluded that the applicant had not demonstrated that there were grounds for leave to appeal, and refused the application for leave to appeal.

The final orders of the court were that the application for leave to appeal be refused, and that the applicant pay the respondent’s costs of the application, assessed on the standard basis.

Orders