Roads Corporation v McCarthy - [2004] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
VALUATION, COMPENSATION & PLANNING LIST

No. 6472 of 2004

ROADS CORPORATION	Appellant
v
STEPHEN McCARTHY	First Respondent
and
GLEN EIRA CITY COUNCIL	Second Respondent
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Third Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 SEPTEMBER 2004
DATE OF JUDGMENT:	28 SEPTEMBER 2004
CASE MAY BE CITED AS:	ROADS CORPORATION v McCARTHY & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 369

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Appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 with respect to the grant of a planning permit to develop and use land - Public Acquisition Overlay – Jurisdiction of the Victorian Civil and Administrative Tribunal – When referral authority objects to permit - Objectives of the Planning and Environment Act 1987 – Powers of Tribunal.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Delany QC with Ms M. Foley	Garland Hawthorn Brahe
For the First Respondent	Mr C. Wren	Best Hooper
No appearance by or on behalf of any other party.

HIS HONOUR:

This is the determination of an appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") by Roads Corporation ("the referral authority") against a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") with respect to the grant of a planning permit to develop and use land in North Road, East Bentleigh.[1]
[1]In accordance with usual practice, the Tribnal has indicated via letter it will abide by the decision of the Court.

The subject land is located within a Business 1 Zone under the Glen Eira Planning Scheme. In addition, the front three metre strip of the land is subject to a Public Acquisition Overlay ("PAO") in respect of which the referral authority is nominated as the acquisition authority. The underlying purpose of this overlay is to facilitate a future widening of North Road.

Clause 45.01 of the Planning Scheme sets out the PAO control. The purpose stated for the control is:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning polices.
To identify land which is proposed to be acquired by a public authority.
To reserve land for a public purpose and to ensure that changes to the use or development of the land do not prejudice the purpose for which the land is to be acquired."

By sub-clause 01-1 a permit is required to:

"-Use land for any Section 1 or Section 2 use in the zone.
-Construct a building or construct or carry out works.
…
-Subdivide land."

By sub-clause 01-2 a permit application must be referred under Section 55 of the Planning and Environment Act 1987 ("the P & E Act") to the authority responsible for acquiring the land.

By sub-clause 01-3 decision guidelines with respect to permit applications under the PAO are stated as follows:

"Before deciding on an application, in addition to the decision guidelines…

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: [2004] VSC 369
Decision Date: 28 September 2004

CaseChat Overview and Summary

Roads Corporation appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT) which granted a planning permit to McCarthy to develop and use land subject to a Public Acquisition Overlay. The permit was objected to by the referral authority, Roads Corporation, which claimed that the development would not be consistent with the objectives of the Planning and Environment Act 1987. The appeal was brought to challenge the jurisdiction of VCAT and the exercise of its powers in granting the permit.

The central legal issue before the court was whether VCAT had the jurisdiction to grant a planning permit in the face of an objection from a referral authority, and if so, whether the Tribunal correctly exercised its powers in granting the permit. The appeal also questioned the interpretation of the objectives of the Planning and Environment Act 1987 and whether the development was consistent with those objectives.

The court found that VCAT did indeed have the jurisdiction to grant the planning permit, despite the objection from the referral authority. In exercising its powers, the Tribunal correctly considered the objectives of the Planning and Environment Act 1987 and found that the proposed development was consistent with those objectives. The court emphasised that VCAT has a broad discretion in planning matters and is not bound by the views of the referral authority. The appeal was dismissed, affirming the decision of VCAT to grant the planning permit.

Orders