Lewis v Petrie - [2022] VSC 673

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION COMPENSATION AND PLANNING LIST

S ECI 2021 04161

ESTHER LEWIS	Applicant
v
DENNIS PETRIE AND KATE PETRIE	First Respondent
GLEN EIRA CITY COUNCIL	Second Respondent

---

JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2022
DATE OF JUDGMENT:	7 November 2022
CASE MAY BE CITED AS:	Lewis v Petrie
MEDIUM NEUTRAL CITATION:	[2022] VSC 673

---

PLANNING LAW – Appeal pursuant to Victorian Civil and Administrative Tribunal Act 1998 s 148 – Definition of ‘restriction’ in the Subdivision Act 1988 - Whether an easement is a restriction as defined – Whether inhibitions in owners corporation rules are restrictions as defined - Where the owners corporation did not consent to the development – Whether the grant of a permit was futile - Whether the Tribunal considered the relevant planning scheme - Planning and Environment Act 1987 s 61(4) – Subdivision Act 1988 s 12(2).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Not applicable	Mr G Ryan
For the First Respondent	Mr M Townsend	KCL Law
For the Second Respondent	No appearance	Marcus Lane Group

TABLE OF CONTENTS

A. The two properties and the planning permit......................................................................... 1

B. The asserted ‘restrictions’ in more detail.................................................................................. 2

B.1The model rules..................................................................................................................... 2
B.2Section 12(2) of the Subdivision Act 1988............................................................................. 3

C. Section 61(4) of the Planning and Environment Act 1987 and related statutory definitions 4

D. Are the implied easements ‘restrictions’?.............................................................................. 5

D.1 The distinction between an easement and a ‘restriction’ in the Subdivision Act 1988.. 5
D.2The adoption, in 2000, of the definition from the Subdivision Act 1988 in the Planning and Environment Act 1987........................................................................................................... 8
D.3Conclusion in relation to the implied easements............................................................. 9

E. Do the rules of the owners corporation contain ‘registered restrictive covenants’?....... 9

F. Whether it was wrong in law to affirm the decision to grant a permit when the owners corporation had not provided consent................................................................................... 11

G. The finding that the proposed development was consistent with the planning scheme 13

H. Further remarks........................................................................................................................... 14

I. Disposition................................................................................................................................... 19

HIS HONOUR:

A. The two properties and the planning permit

Esther Lewis, the applicant, owns a house at 47 Fitzgibbon Crescent in Caulfield North. Dennis and Kate Petrie, jointly the first respondent, are her neighbours at 45 Fitzgibbon Crescent. The houses are semi-detached and share a party wall. Under a plan of strata subdivision, Ms Lewis’s house is lot 2, and the Petries’ house is lot 1. The lower boundary of the lots is one metre below the site and the upper boundary of the lots is ten metres above the site. An owners corporation owns the common property that surrounds the houses and the areas below and above the lots. Ms Lewis and the Petries each own 50% of the shares in the owners corporation. The ‘model rules’ apply to the owners corporation.[1]
[1]The ‘model rules’ are contained in schedule 2 of the Owners Corporation Regulations 2018 (Vic).

The Glen Eira…

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 Lewis v Petrie

Details

AGLC: Lewis v Petrie [2022] VSC 673
Case: [2022] VSC 673
Decision Date: 7 November 2022

CaseChat Overview and Summary

Lewis and Petrie were involved in a dispute relating to planning law and development. The matter was heard in the Victorian Court of Appeal. The central issue was whether certain restrictions, as defined under the Subdivision Act 1988, were validly imposed by an owners corporation on land development. Specifically, the dispute revolved around whether an easement and inhibitions in the owners corporation rules constituted a 'restriction' under the Act. Additionally, the court examined whether the grant of a permit was futile given the owners corporation's refusal to consent to the development. The case also questioned whether the Tribunal had adequately considered the relevant planning scheme when making its decision.

The legal issues required the court to interpret the definition of 'restriction' in the Subdivision Act 1988 and assess the implications of an easement and the owners corporation rules on the development approval process. The court needed to determine if these could be considered restrictions that would require the owners corporation's consent. Furthermore, the court had to decide whether the Tribunal's decision was flawed because it did not properly consider the relevant planning scheme. The appeal hinged on whether the Tribunal had correctly applied the relevant statutory provisions and whether the permit granted by the planning authority was effectively rendered meaningless by the owners corporation's refusal to consent.

The court found that the Tribunal had misinterpreted the definition of 'restriction' under the Subdivision Act 1988. It clarified that an easement did not necessarily constitute a restriction that required the owners corporation's consent. The court also ruled that the inhibitions in the owners corporation rules did not fall within the definition of a restriction under the Act. Additionally, the court held that the Tribunal had not adequately considered the relevant planning scheme when making its decision. Consequently, the grant of the permit by the planning authority was not rendered futile by the owners corporation's refusal to consent. The appeal was allowed, and the matter was remitted to the Tribunal for reconsideration in light of the court's findings.

The final orders of the court included the allowance of the appeal, the remittal of the matter to the Tribunal, and directions for the Tribunal to reassess the application for development approval in accordance with the planning scheme and the correct interpretation of the Subdivision Act 1988. The Tribunal was instructed to ensure that its decision-making process appropriately considered the relevant statutory provisions and planning laws.

Orders