Kitanovski v Melton City Council - [2016] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 06304

MENDO KITANOVSKI	Plaintiff
v
MELTON CITY COUNCIL (IAN RYAN)	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2016
DATE OF JUDGMENT:	11 August 2016
CASE MAY BE CITED AS:	Kitanovski v Melton City Council & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 474

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ADMINISTRATIVE LAW – Judicial review – Application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 – Appeal from judgment of the County Court convicting plaintiff of six charges under the Planning and Environment Act 1987 – Plaintiff convicted of depositing soil on his property in contravention of the Planning and Environment Act 1987 and the Melton Planning Scheme – Procedural fairness – Validity of the charges laid – Plaintiff’s common law rights as owner of property in fee simple restricted by operation of the Planning and Environment Act 1987 – Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 cited – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
Plaintiff appeared in person
For the Defendants	Mr R Appudurai	Russell Kennedy

HIS HONOUR:

Introduction

On 6 June 2014 the plaintiff was charged by Mr Ian Ryan, planning enforcement officer of the first defendant, with a number of offences under the Planning and Environment Act 1987 (‘the Act’). On 30 April 2015 the plaintiff was found guilty in the Sunshine Magistrates’ Court on a total of 18 charges. The plaintiff appealed those convictions to the County Court. On 14 October 2015, after a contested hearing before that court, the plaintiff’s appeal against charges 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 was allowed and those charges were dismissed. Charges 31, 32, 33, 34, 35 and 36 (‘the charges’) were found proven, and the plaintiff’s appeal against conviction in respect of those charges was dismissed.

The plaintiff now brings an application for review of the County Court judgment pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). By an originating motion filed 14 December 2015 the plaintiff seeks an order quashing the convictions and dismissing each of the charges.

The three issues raised by the plaintiff’s grounds in the originating motion are whether:

(a) there was a lack of procedural fairness afforded the plaintiff by the trial judge during the hearing in the County Court;

(b) the plaintiff having taken responsibility for the acts upon which the charges were based, separate charges brought against the plaintiff’s brother should be dismissed; and

(c) the trial judge erred in the construction of the Act and the Melton Planning Scheme (‘the Planning Scheme’).

Background

The plaintiff and his brother Slobodan Kitanovski were, at the time of the offences alleged by the first defendant, registered proprietors as tenants in common of the property at 627–703 Plumpton Road, Plumpton in the State…

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: [2016] VSC 474
Decision Date: 11 August 2016

CaseChat Overview and Summary

In Kitanovski v Melton City Council, the plaintiff, Kitanovski, appealed against the County Court's conviction of six charges under the Planning and Environment Act 1987, relating to the deposition of soil on his property. The case before the court was an application for judicial review of the County Court's judgment, seeking to overturn the conviction based on procedural fairness and the validity of the charges laid. The primary legal issue before the court was whether the plaintiff's common law rights as the owner of the property were unjustly restricted by the operation of the Planning and Environment Act 1987 and the Melton Planning Scheme. The court considered whether procedural fairness was observed in the imposition of the charges and if the plaintiff's rights under the common law were properly balanced against statutory obligations.

The court found that the County Court's process did not breach any principles of procedural fairness. It held that the plaintiff's common law rights as the owner of property in fee simple were indeed restricted by the statutory scheme, which was a valid exercise of the legislative power. The court referenced the decision in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, which established that the common law rights of property owners are subject to reasonable statutory restrictions. The court concluded that the charges were validly laid under the statutory framework and that the plaintiff's procedural rights were adequately observed in the proceedings. Therefore, the application for judicial review was dismissed.

Orders