O'Toole v Yarra Ranges Council - [2020] VSC 407

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00421

ALEXANDER O’TOOLE (formerly known as Stephen Boyd-Squires)	Plaintiff
v
YARRA RANGES COUNCIL	Defendant

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JUDGE:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2020
DATE OF RULING:	23 June 2020
CASE MAY BE CITED AS:	O’Toole v Yarra Ranges Council
MEDIUM NEUTRAL CITATION:	[2020] VSC 407

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PRACTICE AND PROCEDURE - Leave to appeal decision of VCAT - Application six months out of time - Application granted only where there is a real prospect of success – Applicants submissions regarding health issues, being a self-represented litigant and the lodging of a judicial complaint explain delay in lodging application, but do not justify it - Decision of tribunal not shown to involve error or a question of law granting leave to appeal - Applicant asserts his fee simple interest in his land is immune to attack by refusal of building permission - Applicant asserts tribunal contravened the Town and Country Planning Act 1958 and the Subdivision Act 1998 - Applicant assert he had retrospective permission to building on his property, based on correspondence from 2006 – Applicant asserts decision of Tribunal contravenes International Human Rights Charter - Applicant placed reliance on Terramatrix report - Applicant asserted Country Fire Authority findings as to distances from bushland incorrect – No question of law arises from any of these points - Applicant wrongly relies on academic article in Melbourne University Law Review - Appeal has no real prospect of success - Any extension of time futile – Leave to appeal should be refused - Proceedings dismissed.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Respondent	Mr R Appurdurai	Russell Kennedy

JUDICIAL REGISTRAR

The applicant Mr O’Toole made an application in 2018 to the respondent Council for the grant of a planning permit. The application was refused by the respondent as the responsible authority for the relevant statutory scheme. The subject land is 1854 Warburton-Woods Point Road, McMahons Creek 3799.

Mr O’Toole applied to VCAT for a review of that decision and on 31 May 2019 the decision of the Council was affirmed. The decision of the Tribunal is cited as [2019] VCAT 810.

In this proceeding, Mr O’Toole seeks leave to appeal from the decision of the Tribunal. The appeal is regulated by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). By order of this Court dated 17 March 2020, the hearing and determination of an extension of time application and the question of leave to appeal have been referred to me for hearing and determination.

Mr O’Toole requires an extension of time as the proceeding in this Court was not commenced until January 2020. Section 148(2) requires an application for leave to appeal be made within twenty-eight days of the order of the Tribunal. The application was made approximately six months after the expiration of that time limit.

The application seeks…

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: [2020] VSC 407
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the case of O'Toole v Yarra Ranges Council, the applicant sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) regarding a refusal of building permission. The applicant, self-represented, contended that the decision was flawed on various grounds including errors in law, human rights violations, and misinterpretation of planning laws and fire safety regulations. The applicant also argued that the tribunal had wrongly dismissed his assertion that he had retrospective permission to build. The Court of Appeal was tasked with determining whether the application for leave to appeal, made six months out of the prescribed time, should be granted, and whether the applicant's reasons for the delay were sufficient to warrant an extension.

The primary legal issues before the court were whether the applicant's reasons for the delay in lodging the application for leave to appeal were justifiable, and whether the applicant's claims of error in the tribunal's decision involved questions of law warranting an appeal. The applicant cited health issues, difficulties as a self-represented litigant, and the lodging of a judicial complaint as reasons for the delay. The applicant also argued that the tribunal's decision contravened several legislative provisions and human rights standards. The court needed to assess whether these factors constituted a real prospect of success on appeal and whether any extension of time for lodging the application would be futile.

The Court of Appeal found that while the applicant's health issues and self-representation as a litigant might explain the delay, they did not justify it. The court determined that the applicant's claims did not involve questions of law but were instead matters of interpretation and fact that had been properly considered by the tribunal. The court held that the applicant's assertions regarding retrospective permission, misinterpretation of statutes, and human rights violations did not present a real prospect of success on appeal. The reliance on an academic article was deemed misplaced as it did not form part of the legal framework applicable to the case. Consequently, the court refused the application for leave to appeal, finding that any extension of time would be futile.

The Court of Appeal dismissed the proceedings, concluding that the applicant had not demonstrated a real prospect of success on appeal, and the reasons provided for the delay in lodging the application did not warrant an extension of time. The decision highlighted the importance of timely legal actions and the need for applicants to substantiate their claims with valid legal arguments.

Orders