Mond v Perkins Architects Pty Ltd - [2013] VSC 455

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. SCI 2013 3331

BETWEEN

DAVID MOND	Applicant
and
PERKINS ARCHITECTS PTY LTD (ACN 007 172 670)	First Respondent
and
GLEN EIRA CITY COUNCIL	Second Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2013
DATE OF JUDGMENT:	26 August 2013
CASE MAY BE CITED AS:	Mond v Perkins Architects & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 455

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PLANNING AND ENVIRONEMENT – Application for Leave to Appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Application for a permit for a child care centre in a Residential 1 Zone – Whether Tribunal decision attended by sufficient doubt to justify grant of leave – Whether grounds relied upon by applicant disclose legal deficiencies in Tribunal’s reasons – Consideration of the nature of Tribunal’s power under s 84B of the Planning & Environment Act 1987 (Vic) – Whether applicant was denied procedural fairness by the Tribunal – Whether Tribunal manipulated facts to arrive at a predetermined conclusion – Tribunal decision not affected by an error of law – Leave to Appeal refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Planning & Environment Act 1987 (Vic) Department of Premier and Cabinet v Hulls [1999] 3 VR 331.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	Mr S Morris QC	Best Hooper
For the Second Respondent	No appearance

HER HONOUR:

Introduction

On 31 May 2013, the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) set aside the decision of the second respondent (the ‘Council’) to refuse a permit for the development and use of land on the corner of Glen Eira Road and Morrice Street in North Caulfield as a child care centre and directed the Council to issue a permit in accordance with attached conditions.

The child care centre in question is a large one, in that it will accommodate up to 120 children with 22 full time and three part time staff at any time. It will be located in a ‘Residential 1’ zone and, in that zone, within an area designated as a ‘Minimal Change Area’ (as defined in clause 22.08 of the Glen Eira Planning Scheme).

The applicant, Mr Mond, objected to the grant of the permit and was a respondent to the Tribunal proceeding. He now seeks leave to appeal against the Tribunal’s decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).

Mr Mond has put forward a notice of appeal that does not identify the questions of law that he wishes to agitate. However, it raises no less than fourteen proposed grounds of appeal, many of them with what might be described as ‘sub-grounds’. Many of the proposed grounds are general in character and do not expressly identify the error said to have been made by the Tribunal.[1] Mr Mond’s written…

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: [2013] VSC 455
Decision Date: 26 August 2013

CaseChat Overview and Summary

In Mond v Perkins Architects Pty Ltd, the applicant sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) that had rejected an application for a permit to establish a child care centre in a Residential 1 Zone. The case was heard in the Supreme Court of Victoria, where the applicant contended that the Tribunal's decision was flawed and procedurally unfair. The central issue before the court was whether the Tribunal's decision was attended by sufficient doubt to warrant the grant of leave to appeal, and whether the grounds relied upon by the applicant revealed legal deficiencies in the Tribunal's reasons.

The court examined the nature of the Tribunal's power under section 84B of the Planning and Environment Act 1987 (Vic) and whether the applicant had been denied procedural fairness by the Tribunal. The applicant argued that the Tribunal had manipulated facts to reach a predetermined conclusion, but the court found that the Tribunal's decision was not affected by an error of law. The applicant's arguments did not disclose any legal deficiencies in the Tribunal's reasons, and the court was satisfied that the Tribunal had properly exercised its discretion. The court also considered the decision in Department of Premier and Cabinet v Hulls, which reinforced the view that the Tribunal's decision was lawful.

The Supreme Court found that the applicant had not demonstrated that the Tribunal's decision was attended by sufficient doubt to justify the grant of leave. The court held that the grounds relied upon by the applicant did not reveal legal deficiencies in the Tribunal's reasons, and the Tribunal had not denied the applicant procedural fairness. The court also rejected the applicant's contention that the Tribunal had manipulated facts to arrive at a predetermined conclusion. Consequently, the court refused the application for leave to appeal.

Orders