| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
No. 4816 of 2010
| ANNE MAGEE | Applicant |
| v | |
| BOROONDARA CITY COUNCIL | First Respondent |
| and | |
| ATHLOS NO. 4 PTY LTD | Second Respondent |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2010 | |
DATE OF JUDGMENT: | 11 March 2011 | |
CASE MAY BE CITED AS: | Magee v Boroondara City Council | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 78 | |
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ADMINISTRATIVE LAW – Planning – Application for leave to appeal from VCAT – Grant of planning permit – Pre-application meetings between the developer and Council officers – meeting between the developer and councillors – Apprehended bias – Pre-judgment – Prior association – Procedural fairness – Opportunity to test evidence – Findings not open on the evidence – Adequate alternative remedy – Planning and Environment Act 1987 (Vic) Pt 4 – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98, 102.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T.P. Mitchell | Planning & Property Partners Pty Ltd |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr P. O’Farrell | Best Hooper |
HER HONOUR:
Issues and proceedings
Mrs Magee is the owner-occupier of a house located at 349 Union Road, Balwyn. She, amongst others, objected to an application made by the second respondent (‘the developer’) for a permit to construct nine dwellings on adjoining land at 347 Union Road, Balwyn. Notwithstanding the objections, on 12 May 2010, the respondent authority, Boroondara City Council, issued a Notice of Decision to Grant a Permit in respect of the development.
On 17 June 2010, Mrs Magee applied to the Victorian Civil and Administrative Tribunal under s 149B of the Planning & Environment Act 1987 (‘the Act’) for declarations that the Notice of Decision was issued in breach of the rules of natural justice and that the Council had failed to properly consider the objections it received. Mrs Magee’s case before the Tribunal was that communications between the Council and the developer to the exclusion of objectors gave rise to the apprehension of bias.
At the hearing before the Tribunal, Mrs Magee sought a more detailed set of declarations to the effect that Council officers collaborated with the developer in preparing plans for the permit application, participated in ex parte communications and had extensive prior dealings with the developer, which resulted in a recommendation by a Council planner to approve the permit application. Mrs Magee contended that this amounted to a denial of procedural fairness, and that Council officers acted incompatibly with her right to have the permit application decided by a competent, independent and impartial authority after a fair and public hearing. She also contended that Council’s decision to recommend approval of the application was invalid and unlawful by reason of infringements of the Charter of Human Rights and Responsibilities 2006, in that there was a failure to give proper consideration to her right to privacy and her right to a fair and public hearing.
The…
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- Case
- [2011] VSC 78
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented to VCAT, which included communications between the developer and council officers, as well as a meeting between the developer and councillors. The court found that the evidence did not support an inference of bias, prejudgment, or a failure to observe procedural fairness. The court held that the opportunity for Mrs. Magee to test the evidence through cross-examination and questioning was sufficient. Furthermore, the findings made by VCAT were open on the evidence presented. The court also determined that Mrs. Magee had an adequate alternative remedy through the internal review process provided by the Planning and Environment Act 1987.
Accordingly, the court found that leave to appeal should be refused. The application was dismissed, and the decision of VCAT was upheld. The court's determination was that the findings made by VCAT were not flawed, and the process followed by the council was fair and free from bias or prejudgment. The court concluded that Mrs. Magee had not demonstrated a sufficient ground for appeal. As such, leave to appeal was denied, and Mrs. Magee's application was dismissed in its entirety.
Orders
Orders of the court
Leave to appeal is refused and Mrs Magee’s application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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