Shalit v Jackson Clement Burrows Architects Pty Ltd - [2002] VSC 528

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 6321 of 2002

GREGORY SHALIT and MIRIAM FAINE	Appellants
v
JACKSON CLEMENT BURROWS ARCHITECTS PTY LTD	First Respondent
and
BOROONDARA CITY COUNCIL	Second Respondent
and
MELBOURNE WATER	Third Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2002
DATE OF JUDGMENT:	2 December 2002
CASE MAY BE CITED AS:	Shalit and Faine v Jackson Clement Burrows
MEDIUM NEUTRAL CITATION:	[2002] VSC 528

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PLANNING LAW – appeal from the Victorian Civil and Administrative Tribunal – construction of a new dwelling – inappropriate to control the development with criteria unrelated to the planning scheme control – appeal dismissed

Planning and Environment Act 1987 – sections 4, 60, 84B.

Bropho v Western Australia (1990) 171 CLR 1
Glen Eira City Council v Gory (2001) 9 VPR 101
Klein v Domus (1963) 109 CLR 467

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592
RSL Glenroy Sub-branch v Moreland City Council [1998] 2 VR 406

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr M Dreyfus QC with Ms A Johns	Minter Ellison
For the First Respondent	Mr S R Morris QC	Best Hooper

HER HONOUR:

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision made on 12 June 2002 by the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by Member Baird, varying a decision of the second respondent (“the Council”) as responsible authority under the Boroondara Planning Scheme (“the planning scheme”) and directing the Council to issue a permit, subject to certain conditions not here significant, for the construction of a dwelling on the subject land. Leave to appeal was granted by this Court on 30 August 2002. There was no appearance by the Council or by the third respondent, Melbourne Water.

On or about 2 July 2001 the first respondent applied to the Council for a planning permit to develop the subject land, known as 28 Creswick Street Hawthorn, by the demolition of the existing dwelling and the construction of a new two storey dwelling. A notice of decision to grant a permit was issued by the Council. The appellants, who own and occupy 30 Creswick Street, the adjoining property to the south, applied to the Tribunal for review of that decision, and it is the decision of the Tribunal on that application which is here under appeal.

The subject land is located on the west side of Creswick Street falling to the west, towards the Yarra River, and abutting on the west a park forming part of the Yarra River corridor.

Under the planning scheme the subject land is zoned Residential 1, and is affected by an Environmental Significance Overlay and a Significant Landscape Overlay. No permit is required for the proposed development…

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: [2002] VSC 528
Decision Date: 2 December 2002

CaseChat Overview and Summary

In the case of Shalit v Jackson Clement Burrows Architects Pty Ltd, the appellant sought judicial review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) to reject an application to construct a new dwelling. The primary dispute centred on the interpretation and application of the Planning and Environment Act 1987. The appellant argued that the VCAT's decision to deny approval for the construction of the dwelling was not aligned with the planning scheme and introduced criteria unrelated to the statutory framework. The court was required to determine whether the VCAT correctly applied the provisions of the Act and whether the decision was made within the scope of the statutory authority.

The legal issues before the court involved the proper interpretation of sections 4, 60, and 84B of the Planning and Environment Act 1987. The appellant contended that the VCAT had incorrectly applied criteria that were not part of the planning scheme, thereby exceeding its statutory powers. The court needed to examine the principles established in previous cases, such as Bropho v Western Australia, Glen Eira City Council v Gory, Klein v Domus, Minister for Aboriginal Affairs v Peko-Wallsend, and National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd, to ascertain whether the VCAT's decision adhered to the statutory requirements and the scope of its authority.

The court found that the VCAT's decision was consistent with the statutory framework and the planning scheme. The tribunal had correctly applied the relevant criteria set out in the Act and did not introduce extraneous factors. The court held that the VCAT's decision was within its jurisdiction and not subject to judicial review on the grounds presented by the appellant. Consequently, the appeal was dismissed, and the decision of the VCAT was upheld.

Orders