IN THE MATTER of section 105 of the Planning and Environment Act 1987 and section 80 of the Land Acquisition and Compensation Act 1986 whereby Francesca and Francesco Rizzo refer a disputed claim for determination by the Supreme Court.

BETWEEN:

FRANCESCO RIZZO	First Applicant
FRANCESCA RIZZO	Second Applicant
v
VICROADS	Respondent

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2019
DATE OF JUDGMENT:	25 November 2019
CASE MAY BE CITED AS:	Rizzo v VicRoads
MEDIUM NEUTRAL CITATION:	[2019] VSC 770

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VALUATION AND COMPENSATION – Application to dismiss proceeding pursuant to s 63 of the Civil Procedure Act 2010 (Vic) – Hume Planning Scheme – Imposition of Public Acquisition Overlays – Compensation for loss on sale under Pt 5, Planning and Environment Act 1987 (Vic) – When applicants’ right to payment of compensation arose – When ‘sale of the land’ for the purposes of ss 98(1), 99(b) and 106, Planning and Environment Act 1987 (Vic) occurs under a contract for the sale of land in stages – Whether sufficient grounds to conclude that it is not fanciful that the decision in Plunkett v Roads Corporation [2019] VSC 39 may be wrong – Whether grounds to adjourn determination of proceeding to await completion of the final stage of the Contract of sale – Planning and Environment Act 1987 (Vic) ss 98(1), 99(b), 104, 106(1); Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360.

PRACTICE AND PROCEDURE – Summary judgment application – Civil Procedure Act 2010 (Vic), ss 63 and 64 – Whether proceeding should be dismissed where if amended it may have a real prospect of success – Circumstances in which the Court should exercise its discretion under s 64 to order a proceeding go to trial despite there being no real prospect of success.

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

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The Contract........................................................................................................................................ 2

The Claim and Referral..................................................................................................................... 2

Applicable law.................................................................................................................................... 2

Summary dismissal...................................................................................................................... 2

Compensation for ‘loss on a sale’.................................................................................................... 2

Plunkett.......................................................................................................................................... 2

Submissions of the parties............................................................................................................... 2

Respondent’s submissions.......................................................................................................... 2
Applicants’ submissions.............................................................................................................. 2

Consideration...................................................................................................................................... 2

No real prospects of success (s 63)?........................................................................................... 2
CPA s 64.......................................................................................................................................... 2

Should an adjournment be granted or the trial put off?............................................................ 2

Submissions................................................................................................................................... 2
Applicable principles................................................................................................................... 2
Consideration................................................................................................................................ 2

Conclusion........................................................................................................................................... 2

HIS HONOUR:

Introduction

At the commencement of this proceeding, the applicants were the owners 555 Donnybrook Road, Mickleham (Property).[1] In August 2010 a Public Acquisition Overlay was introduced into the Hume Planning Scheme, reserving land to be acquired by the Roads Corporation[2] for the Outer Metropolitan Ring/E6 Transport Corridor (PAO 3).[3] PAO 3 affects…

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 Rizzo v VicRoads

Details

AGLC: Rizzo v VicRoads [2019] VSC 770
Case: [2019] VSC 770
Decision Date: 25 November 2019

CaseChat Overview and Summary

Rizzo and another v VicRoads involved a dispute over compensation under the Planning and Environment Act 1987 (Vic) in the context of the imposition of Public Acquisition Overlays on the applicants' property. The applicants sought compensation for a loss on sale due to the overlays, as per the provisions of the Act. The case was before the Supreme Court of Victoria, which had to determine whether the applicants' right to compensation arose and when the 'sale of the land' occurred under the contract for the sale of land in stages.

The legal issues before the court included the timing of the applicants' right to compensation and the interpretation of the 'sale of the land' in the context of a staged sale under a contract. Additionally, the court had to consider whether there were sufficient grounds to conclude that the decision in Plunkett v Roads Corporation might be incorrect and whether the proceeding should be adjourned to await the completion of the final stage of the contract for sale.

The court found that the applicants' right to compensation arose when the overlays were imposed, and not upon the sale of the land. The court held that the 'sale of the land' for the purposes of the relevant sections of the Planning and Environment Act occurred at the point of the final stage of the contract for sale. The court concluded that there were sufficient grounds to consider that the Plunkett decision might be incorrect and that it was appropriate to adjourn the determination of the proceeding to allow for the completion of the final stage of the sale contract.

The final orders of the court were to dismiss the application to dismiss the proceeding, to adjourn the determination of the proceeding until the final stage of the contract for sale was completed, and to order the applicants to pay VicRoads' costs of the proceeding up to the date of the order.

Orders