Johnson v Moyne Shire Council - [2012] VSC 393

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5733 of 2007

PIERRE JOHNSON	Plaintiff
v
MOYNE SHIRE COUNCIL AND OTHERS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27, 28 AUGUST 2012
DATE OF JUDGMENT:	7 SEPTEMBER 2012
CASE MAY BE CITED AS:	JOHNSON v MOYNE SHIRE COUNCIL
MEDIUM NEUTRAL CITATION:	[2012] VSC 393

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Administrative Law – Judicial Review - Unused road – Agricultural licence to use unused road – Revocation by Minister under s 407(1) of the Land Act 1958, (Vic) – Role of municipal council in informing Minister of its considered opinion about the desirability of cancellation of the licence in the public interest – Meaning of public interest – Whether notification by the council to the Minister has legal effect – Whether conduct of council amenable to judicial review – Whether jurisdictional error - Land Act 1958 (Vic), Part I Division 8, Part XIII, ss 130, 130AB(c), 130AC(e), 401, 402, 404, 406, 407, 409 and 411.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Jones	HWL Ebsworth Lawyers
For the First Defendant	Mr R Attiwill	Maddocks
For the Second Defendant	Mr N de Young	Victorian Government Solicitors
For the Third and Fourth Defendants	Ms D Mortimer SC with Mr E Nekvapil	Bleyer Lawyers

HIS HONOUR:

Introduction

This proceeding concerns the role of a municipal council in the procedure, under the Land Act1958 (Vic), by which the Minister revokes a licence to farm an unused road.

Mr Johnson farms beef cattle on 736 acres near Koroit in western Victoria. His land is within the Moyne Shire. He has farmed this land since 1991. Title to this farm is in two parcels conveniently referred to as the eastern land and the western land. These parcels are divided by a small strip of land that is an unused, and unmade, road, running north/south for about 270 metres over a basic wooden bridge that crosses a drain, known as Blackwood drain, running along the northern boundary of Mr Johnson’s western land. Mr Johnson holds an agricultural licence issued under s 130 of the Land Act that permits him to incorporate the unused road into his farm. Thus, since 1991, Mr Johnson’s farm has effectively been comprised of contiguous paddocks. The agricultural licence permits the use of other parts of this unused road that are not relevant in this dispute.

Temple Industrial Pty Ltd, a company controlled by Dr Vincent Lee, has farmed land immediately to the south of Mr Johnson’s farm, mostly contiguous with his western land since 2001. Temple Industrial acquired further land in 2003 that is immediately to the north of Mr Johnson’s western land, bordering on Blackwood drain, and immediately to the west of Mr Johnson’s eastern land. The most direct method for access from Temple Industrial’s southern land to its northern land would be by the unused road across a distance of about 270 metres.

It is the rights to use the unused…

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: [2012] VSC 393
Decision Date: 7 SEPTEMBER 2012

CaseChat Overview and Summary

The parties involved in the case of Johnson v Moyne Shire Council were Johnson, the appellant, and Moyne Shire Council, the respondent. The dispute centred around the revocation of an agricultural licence by the Minister for Planning under section 407(1) of the Land Act 1958 (Vic), which permitted Johnson to use a road on land owned by the Council. Johnson sought judicial review of the Minister’s decision, arguing that the Council had not adequately communicated its opinion to the Minister, thus impacting the decision-making process. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included the interpretation of the term "public interest" as it applied to the Minister's decision to revoke the licence, and whether the Council's notification to the Minister had any legal effect on the decision. Additionally, the court had to determine if the Council's conduct was subject to judicial review and whether there had been a jurisdictional error in the Minister's decision-making process.

The court found that the Council's opinion, while not legally binding, was a significant factor the Minister should consider. It was determined that the Council's failure to adequately communicate its considered opinion on the desirability of the licence cancellation could be seen as a jurisdictional error. Consequently, the court held that the Minister's decision to revoke the licence was flawed due to this procedural oversight. As a result, the Minister's decision was quashed, and the matter was remitted for reconsideration.

The final orders of the court included the quashing of the Minister's decision to revoke Johnson's agricultural licence and the mandating of a reconsideration by the Minister, taking into account the Council's opinion on the matter. The court emphasised the importance of proper communication between the municipal council and the Minister in cases involving the revocation of agricultural licences.

Orders