Natch v Keser - [2023] VSC 548

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 00404

MOHAN NATCH	First Appellant
MOHAN NATCH and KARAN NATCH (named as executors and trustees of the will of ANDAL NATCH, deceased, dated 26 March 2023 and who have been appointed as representatives of her estate for the purpose of this proceeding)	Second Appellants
v
ERIC CARL THOMAS KESER	First Respondent
(and others according to the Schedule attached)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2023
DATE OF JUDGMENT:	13 September 2023
CASE MAY BE CITED AS:	Natch v Keser
MEDIUM NEUTRAL CITATION:	[2023] VSC 548

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ADMINISTRATIVE LAW – Planning – Application for leave to appeal orders of Victorian Civil and Administrative Tribunal – Review of Council decision to amend planning permit to allow use of common property as a balcony and erection of a balustrade – Whether Tribunal denied natural justice in refusing the appellants leave to rely on submissions prepared after hearing completed – Refusal to refer legal issues for decision to Member who was an Australian Lawyer – Whether principles of estoppel and res judicata applicable -Application for leave to appeal refused – Planning and Environment Act 1987 ss 60, 87A; Victorian Civil and Administrative Tribunal Act 1998 ss 77, 97, 98, 107.

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APPEARANCES:	Counsel	Solicitors
For the First Appellant	Self-represented
For the Second Appellant, Mrs A Natch (since deceased)	Mr D L Epstein	Matthew Delahunty Lawyer
For the Respondents	No appearance

HIS HONOUR:

Background

The appellants seek leave to appeal on questions of law, orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’), which directed the issue of an amendment to a planning permit. The amendment permitted the development of a balcony and the erection of a balustrade associated with apartment 302, part of a four-storey apartment building located at the north-east corner of Kooyong Road and Sebastapol Street, Caulfield North.[1]
[1]The building included offices and a basement carpark.

The respondents, the Kesers, own and occupy apartment 302, which is located on the third floor. They wanted the planning permit amended to increase the balcony area associated with the apartment by 64m² to the eastern side of the balcony. Works would include the removal of part of the existing balustrade facing east to the north of the building, and construction of new balustrades to the north, east and south to enclose the new area.[2]
[2]City of Glen Eira, Delegated Planning Forum Report – Amended Permits, 16 August 2020, CB Tab 7, page 85.

The first appellant, Mr Mohan Natch is the registered proprietor of 1 Sebastopol Street, Caulfield North and his mother, Mrs Andal Natch, the second appellant, was the registered proprietor of the neighbouring property to the east, 3 Sebastopol Street.[3] They objected to the Kesers’ application. After listing the proceeding for judgment, the Court was informed of the death of Mrs Natch. Mohan Natch and Karan Natch have been appointed to represent…

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 Natch v Keser

Details

AGLC: Natch v Keser [2023] VSC 548
Case: [2023] VSC 548
Decision Date: 13 September 2023

CaseChat Overview and Summary

The case of Natch v Keser involved the appellants, who were contesting a decision made by the Victorian Civil and Administrative Tribunal (VCAT) regarding the amendment of a planning permit. The permit allowed the use of common property as a balcony and the erection of a balustrade. The appellants sought leave to appeal the Tribunal's decision, arguing that they were unfairly denied the opportunity to rely on submissions prepared after the hearing had concluded. Additionally, the appellants argued that the Tribunal's refusal to refer certain legal issues to a Member who was an Australian lawyer was a denial of natural justice. The appellants also contended that principles of estoppel and res judicata should have been applied to their advantage.

The court had to determine whether the appellants were denied natural justice in the Tribunal's refusal to accept their late submissions and if the Tribunal's decision not to refer certain legal issues to a Member who was an Australian lawyer was a breach of natural justice. Furthermore, the court had to consider whether the principles of estoppel and res judicata applied in this situation.

The court found that the Tribunal's decision to refuse the appellants leave to rely on submissions prepared after the hearing had concluded did not constitute a denial of natural justice. The court held that the appellants had ample opportunity to present their case and that the late submissions did not significantly impact the outcome. Regarding the refusal to refer certain legal issues to a Member who was an Australian lawyer, the court held that this did not amount to a breach of natural justice as the appellants did not demonstrate how the Member's professional background would have affected the outcome. Finally, the court concluded that the principles of estoppel and res judicata were not applicable in this case, as the appellants did not provide sufficient evidence to support their claims.

The application for leave to appeal was refused. The court determined that the appellants did not demonstrate that the Tribunal's decisions were flawed to a degree that would justify an appeal. As a result, the appellants' challenge to the VCAT's decision was dismissed, and the original decision regarding the planning permit amendment stood.

Orders