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Smith v Gould

Smith v Gould

Case [2012] VSC 542 14 November 2012

Appeal

Jurisdiction

Statutory Interpretation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST

S CI 2011 02034
S CI 2011 4315

MILDURA RURAL CITY COUNCIL	Appellant
v
VABDS DEVELOPMENTS PTY LTD	Respondent

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2012
DATE OF JUDGMENT:	14 November 2012
CASE MAY BE CITED AS:	Mildura Rural City Council v VABDS Developments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 542
JUDGMENT APPEALED FROM:	VABDS Developments Pty Ltd v Mildura Rural City Council [2011] VCAT 556 (1 April 2011) (Member Code)

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ADMINISTRATIVE LAW – Appeal from decisions of the Victorian Civil and Administrative Tribunal – Whether the VCAT misconstrued the principles governing the exercise of discretion to extend a planning permit – Planning and Environment Act 1987, s 69(2) – Kantor v Murrindindi Shire Council (1997) 18 AATR 285 considered.

PRACTICE AND PROCEDURE – Application to amend a notice of appeal to add a further ground of appeal – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.11(3).

COURTS AND JUDGES – Power of Supreme Court to amend an order of the VCAT under the Victorian Civil and Administrative Tribunal Act 1998, s 148(7).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R. Appudurai	Russell Kennedy
For the Respondent	Mr E. Nekvapil	Norton Rose

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Relevant statutory provisions.......................................................................................................... 2

Facts...................................................................................................................................................... 4

Principles in Kantor v Murrindindi Shire Council....................................................................... 8

VCAT’s decisions............................................................................................................................... 9

Did the VCAT misconstrue the principles in Kantor v Murrindindi Shire Council?.......... 13

Ruling on the Council’s application to amend the notice of appeal..................................... 17

Factual background.................................................................................................................... 18
The VCAT’s decision.................................................................................................................. 19
Parties’ submissions.................................................................................................................... 20
Reasons for ruling....................................................................................................................... 22

Proposed orders................................................................................................................................ 24

HIS HONOUR:

Introduction and summary

These reasons concern two appeals from decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’) relating to two parcels of land in Karadoc Avenue, Irymple (‘Two Parcels’) that are owned by the respondent, VABDS Developments Pty Ltd (‘VABDS’). The VCAT set aside decisions of the appellant, the Mildura Rural City Council (‘Council’), to refuse to extend planning permits that it had previously granted for the subdivision of the Two Parcels. The VCAT also ordered that the plan of subdivision affecting one of the Two Parcels be certified.[1]
[1]The VCAT delivered one set of reasons for four separate applications for review that VABDS commenced against the Council. See VABDS Developments Pty Ltd v Mildura Rural City Council [2011] VCAT 556 (1 April 2011) (‘Reasons’).

The permits, when granted by the Council in 2005, were each subject to a condition that VABDS enter into a formal agreement with the First Mildura Irrigation Trust (‘Trust’) in relation to drainage infrastructure. This condition was not satisfied at the time the permits expired.

Prior to the hearing before the VCAT, the Council established its own drainage infrastructure for the area that included the Two Parcels and, following the commencement of Development Contributions Plan Overlay Schedule 2 (‘DCPO2’), Development Contributions…

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 Smith v Gould

Details

AGLC: Mildura Rural City Council v VABDS Developments Pty Ltd [2012] VSC 542
Case: [2012] VSC 542
Decision Date: 14 November 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, Smith sought to appeal the decisions of the Victorian Civil and Administrative Tribunal (VCAT) concerning a planning permit. Smith argued that VCAT had misapplied the principles governing the exercise of discretion to extend the permit. The appeal also involved an application to amend the notice of appeal to include an additional ground related to the tribunal's handling of the matter. Additionally, there was a consideration of the Supreme Court's power to amend an order of VCAT under the Victorian Civil and Administrative Tribunal Act 1998, section 148(7).

The legal issues central to the appeal were whether VCAT had erred in its interpretation of the discretion to extend a planning permit under the Planning and Environment Act 1987, section 69(2). This issue was examined in light of the principles established in Kantor v Murrindindi Shire Council. Furthermore, the court had to determine the appropriateness of allowing an amendment to the notice of appeal to introduce an additional ground and assess the scope of the Supreme Court's authority to alter VCAT's orders.

The Court found that VCAT had indeed misinterpreted the discretion to extend the planning permit, aligning with the principles set forth in Kantor v Murrindindi Shire Council. The Court held that the additional ground of appeal should be permitted, as the amendment did not substantially alter the nature of the appeal and was permissible under the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, rule 4.11(3). The Court also concluded that it had the power to amend VCAT's orders under section 148(7) of the Victorian Civil and Administrative Tribunal Act 1998, considering the circumstances of the case.

The final orders of the Court were to allow the amendment of the notice of appeal, set aside the decision of VCAT concerning the planning permit, and remit the matter back to VCAT for reconsideration in light of the correct legal principles.

Orders