Rizzo v Head, Transport for Victoria - [2020] VSC 89

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S CI 2018 00840

FRANCESCO RIZZO and FRANCESCA RIZZO	Applicants
v
HEAD, TRANSPORT FOR VICTORIA	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	4 March 2020
CASE MAY BE CITED AS:	Rizzo v Head, Transport for Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 89

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VALUATION AND COMPENSATION – Amendment to Hume Planning Scheme – Imposition of Public Acquisition Overlay for Outer Metropolitan Ring/E6 Transport Corridor – Referral of disputed claim for compensation for loss on sale under Pt 5, Planning and Environment Act 1987 (Vic) – Claim made before completion of contract for sale of land – Proceeding held to have no real prospect of success as presently framed – Whether applicants can amend notice of claim – Whether applicants can amend referral notice – Court’s jurisdiction limited to determining ‘disputed claim’ under Land Acquisition and Compensation Act 1986 (Vic) – Application for leave to amend notice of claim and referral notice refused – Planning and Environment Act 1987 (Vic) ss 98(1), 99(b), 105, 106(1) – Land Acquisition and Compensation Act 1986 (Vic), ss 37, 80, 89 – Plunkett v Roads Corporation [2019] VSC 39.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr CJ Delany QC with Ms J Watson	Minter Ellison
For the Respondent	Mr S Goubran with Ms C Dermody	Russell Kennedy Lawyers

HER HONOUR:

The applicants, Francesco and Francesca Rizzo, seek compensation for loss on the sale of land at 555 Donnybrook Road, Mickleham, under ss 98(1) and 106 of the Planning and Environment Act 1987 (Vic) (Planning Act). Part of the land is affected by a Public Acquisition Overlay, introduced into the Hume Planning Scheme in August 2010, which reserved land to be acquired by the Roads Corporation (the Authority)[1] for the Outer Metropolitan Ring/E6 Transport Corridor (PAO 3). Mr and Mrs Rizzo claim to have sold the land on 8 August 2016, when they entered into a contract for the sale of the land.
[1]Now titled ‘Head, Transport for Victoria’.

On 21 December 2016, the applicants served a notice of claim on the Authority, claiming compensation of $24,140,000 for loss on sale of the land. The Authority did not respond within the prescribed time, and was taken to have rejected the claim.[2] In a letter dated 24 October 2017, the Authority provided its substantive response that the claim was premature because the sale of the land would not occur until final settlement of the contract of sale, due to occur on 8 August 2020.
[2]Planning and Environment Act 1987 (Vic) (Planning Act), s 105; Land Acquisition and Compensation Act 1986 (Vic) (Compensation Act), ss 37(4), 37(8).

On 8 March 2018, Mr and Mrs Rizzo referred their disputed claim to this Court for determination, under s 80(b) of the Land Acquisition and Compensation Act 1986 (Vic) (Compensation…

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 89
Decision Date: 4 March 2020

CaseChat Overview and Summary

In the matter of Rizzo v Head, Transport for Victoria, the applicants, the Rizzo family, sought compensation for a loss they claimed to have incurred due to a change in the planning scheme that imposed a Public Acquisition Overlay on their property. The dispute came before the Supreme Court of Victoria, where the primary issue was whether the applicants could amend their notice of claim and their referral notice, both of which were integral to their compensation claim under the Planning and Environment Act 1987 (Vic). The applicants argued that the change in the Hume Planning Scheme, which designated their land for the Outer Metropolitan Ring/E6 Transport Corridor, led to a significant reduction in its market value. They filed a claim for compensation before the completion of their contract for sale of the land.

The legal issues before the court involved the interpretation of statutory provisions, particularly sections 98(1), 99(b), 105, and 106(1) of the Planning and Environment Act 1987 (Vic) and sections 37, 80, and 89 of the Land Acquisition and Compensation Act 1986 (Vic). The applicants sought to amend their notices to include additional grounds for their compensation claim, arguing that the court’s jurisdiction under the Land Acquisition and Compensation Act 1986 (Vic) allowed for such amendments. The respondents, Transport for Victoria, opposed the amendments, asserting that the applications were an attempt to re-litigate the matter and that the court’s jurisdiction was limited to the specific disputed claim outlined in the original notices.

The court held that the applicants' applications for leave to amend were an attempt to circumvent the statutory framework and to introduce new grounds for their compensation claim, which was not permissible. The court noted that the applicants' claim was made before the completion of the contract for sale of their land, and the statutory provisions did not support the notion that the applicants could amend their claims post-sale. Additionally, the court referred to the decision in Plunkett v Roads Corporation, which established that the court's jurisdiction was confined to the disputed claim as set out in the notice of claim. Consequently, the court dismissed the applications for leave to amend, finding that the proceedings had no real prospect of success as presently framed.

The court's decision was definitive, and no further amendments to the notices of claim and referral were allowed. The applicants were left to pursue their compensation claim based on the grounds originally stated in their notices. This ruling underscores the importance of adhering to statutory requirements and the limitations on amending claims post-completion of a land sale contract in the context of planning scheme changes and compensation claims.

Orders