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Sinclair v Tripodis Constructions Pty Ltd

Sinclair v Tripodis Constructions Pty Ltd

Case [2013] VSC 722 19 December 2013

Jurisdiction

Judicial Review

Statutory Interpretation

Planning & Development Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2013 03526

TERRY ANDREW SINCLAIR
GAI CHERYL SINCLAIR

Applicants

TRIPODIS CONSTRUCTIONS PTY LTD (ACN 098 058 416)

First Respondent

BAYSIDE CITY COUNCIL

Second Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 – 23 October 2013
DATE OF JUDGMENT:	19 December 2013
CASE MAY BE CITED AS:	Sinclair & Anor v Tripodis Constructions Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 722

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PLANNING AND ENVIRONMENT – Application for leave to appeal against the Order of the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Tribunal granted permit allowing for the construction of four double storey dwellings – Whether the Tribunal failed to take into account a relevant consideration – Tribunal not bound to consider numerical metrics when evaluating density – No error of law – Leave to appeal refused – Planning and Environment Act1987 – Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – Secretary of the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms J Sharp	Planning and Property Partners
For the First Respondent	Mr A Finanzio SC with Mr P O’Farrell	Moray and Agnew
For the Second Respondent	Mr S Morris QC	Maddocks Lawyers

HER HONOUR:

Introduction

The Applicants, Mr and Mrs Sinclair, seek leave to appeal from the order of the Victorian Civil and Administrative Tribunal made on 16 May 2013, in which the Tribunal ordered that a permit be granted to redevelop land at 31 Bayview Crescent, Black Rock, allowing for the construction of four double storey dwellings (in lieu of the existing single dwelling) on the site in question. For reasons of convenience, the submissions in the application for leave to appeal and in the appeal were heard at the same time.

The application to the Tribunal was made pursuant to s 79 of the Planning and Environment Act1987 (the ‘PE Act’) on the grounds that the Bayside City Council, as responsible authority, had failed to make a decision on the permit application within the prescribed time. The Applicants were objectors to the permit application and parties to the Tribunal proceeding. They, and other objectors to the permit application, were represented by a town planner who called evidence from an architect, Mr Neil de la Coeur.[1]
[1]Mr Sinclair also made separate oral and written submissions to the Tribunal.

Mr de la Coeur’s evidence was described in his written report as ‘an analysis of neighbourhood character from a statistical viewpoint’. Relevantly, Mr de la Coeur identified an area for the purpose of analysing ‘existing neighbourhood character’ and a smaller area for the purpose of analysing ‘emerging neighbourhood character’. He analysed site area per dwelling on these two different bases to identify a density figure (number of dwellings per square metre) that…

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 Sinclair v Tripodis Constructions Pty Ltd

Details

AGLC: Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722
Case: [2013] VSC 722
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the case of Sinclair v Tripodis Constructions Pty Ltd, the applicant, Sinclair, sought leave to appeal against an order of the Victorian Civil and Administrative Tribunal (VCAT) which granted a permit for the construction of four double storey dwellings. The dispute centred on whether VCAT erred in granting the permit and whether it failed to take into account a relevant consideration in its decision-making process. The application for leave to appeal was heard by the Court of Appeal in Victoria.

The primary legal issue before the court was whether VCAT made an error of law in granting the permit and, specifically, whether it failed to properly consider the density implications of the proposed development. The applicant argued that VCAT did not adequately consider the numerical metrics related to density, which was a relevant consideration under the Planning and Environment Act 1987 (Vic). The respondent, Tripodis Constructions, contended that VCAT was not bound to consider numerical metrics when evaluating density and that there was no error of law in the decision.

The court found that VCAT was not required to consider numerical metrics when evaluating density, and it was not bound to do so as part of its discretionary assessment under the Planning and Environment Act. The court held that VCAT's decision was within its lawful discretion and that there was no error of law. The court referenced Minister of Aboriginal Affairs v Peko-Wallsend Ltd and Secretary of the Department of Premier and Cabinet v Hulls in support of its decision, which emphasised the broad discretion afforded to tribunals in planning and environmental matters. Consequently, the application for leave to appeal was refused.

No further orders were made by the court, and the VCAT decision allowing for the construction of the four double storey dwellings was upheld.

Orders