Phillip Mannerheim Holdings v Nillumbik Shire Council - [2017] VSC 670

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02222

PHILLIP MANNERHEIM HOLDINGS PTY LTD	Appellant
v
NILLUMBIK SHIRE COUNCIL	Respondent

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF JUDGMENT:	2 November 2017
CASE MAY BE CITED AS:	Phillip Mannerheim Holdings v Nillumbik Shire Council
MEDIUM NEUTRAL CITATION:	[2017] VSC 670

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PLANNING AND ENVIRONMENT – appeal on question of law from Victorian Civil and Administrative Tribunal – objection to grant of planning permit – whether must contain positive statement of opposition to grant of permit – whether that opposition can be inferred without that statement – importance of encouraging equal public participation in planning decision-making processes and also ensuring compliance with minimum formality requirements for making objections – statutory interpretation – relevance of previous judicial decision when interpreting new provisions enacted with knowledge of that decision – statutory distinction between an ‘objection’ and ‘submission’ – whether document in question was one or the other – whether VCAT erred in law in determining that it was a valid objection - Planning and Environment Act 1987 (Vic) ss 57(1)–(2), Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr J Pizer QC with Mr M Townsend	Equipe Lawyers
For the first respondent	Mr R Appudurai	Russell Kennedy
For the second, seventh, eighth, ninth, tenth and thirteenth respondents.	Ms S Porritt with Ms F Hudgson	Environmental Justice Australia

HIS HONOUR:

The critical issue in this application for leave to appeal and, if leave is granted, this appeal, under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is whether, under the proper interpretation of ss 57(1)–(2) of the Planning and Environment Act 1987 (Vic), an objection to the grant of a planning permit is valid only if it contains a statement of opposition to the grant of the permit. Resolution of this issue necessarily engages consideration of both encouraging equal public participation in planning decision-making processes and ensuring compliance with the minimum formality requirements for making an objection.

When a person is permitted to use and develop land, this can have significant consequences for others, especially those living nearby. The Planning and Environment Act 1987 (Vic) therefore encourages public participation in planning decision-making processes in various ways. This is reflected in an objective of the framework established by the Act, which is ‘to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice’ (s 4(2)(i)). Giving such notice is foundational of the right of all persons who may be affected to object to the grant of planning permits (s 57(1)) and participate in the decision-making process, whatever be their background and capabilities. Under that process, objectors (and sometimes others) also have certain review rights (see below). This is the source of the first principle that is engaged in…

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 Phillip Mannerheim Holdings v Nillumbik Shire Council

Details

AGLC: Phillip Mannerheim Holdings v Nillumbik Shire Council [2017] VSC 670
Case: [2017] VSC 670
Decision Date: 2 November 2017

CaseChat Overview and Summary

Phillip Mannerheim Holdings initiated proceedings against Nillumbik Shire Council, appealing a decision of the Victorian Civil and Administrative Tribunal (VCAT) regarding a planning permit application. The crux of the dispute was whether the objection lodged by Phillip Mannerheim Holdings against the grant of a planning permit complied with the statutory requirements under the Planning and Environment Act 1987 (Vic). Specifically, the issue centred on whether an objection must explicitly state opposition to the grant of a permit, or if such opposition could be inferred from the contents of the document without an explicit statement. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining the precise meaning of "objection" under the statutory provisions and whether the document submitted by Phillip Mannerheim Holdings sufficiently met the legal criteria. It was also required to consider the importance of public participation in planning decisions and whether VCAT had correctly interpreted the legislation when it found the objection valid. The court further considered whether VCAT erred in law by not distinguishing between an "objection" and a "submission" as defined by the Act, and whether previous judicial decisions could inform the interpretation of the new statutory provisions.

The court found that the statutory requirement for an objection to contain a positive statement opposing the grant of a planning permit was not strictly necessary if the opposition could be inferred from the document. It emphasised the importance of equal public participation and the need to interpret the legislation in a manner that encourages such participation. The court held that VCAT did not err in finding that the document constituted a valid objection, as the contents clearly opposed the permit. It also noted that the distinction between an "objection" and a "submission" is crucial, but in this case, the document's overall tenor was sufficient to constitute a valid objection. The court dismissed the appeal, affirming VCAT's decision.

In conclusion, the Supreme Court upheld the VCAT decision, ruling that Phillip Mannerheim Holdings' objection was valid, and thus the appeal was dismissed. The court's decision underscored the importance of interpreting planning legislation to facilitate public participation while maintaining necessary formality requirements.

Orders