Stogdale v Stonnington City Council - [2004] VSC 348

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6704 of 2004

HELEN STOGDALE	Plaintiff
v
STONNINGTON CITY COUNCIL AND OTHERS	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 AUGUST 2004
DATE OF JUDGMENT:	15 SEPTEMBER 2004
CASE MAY BE CITED AS:	STOGDALE v STONNINGTON CITY COUNCIL & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 348

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Section 148 Victorian Civil and Administrative Tribunal Act 1998 – Planning appeal – Permit for refurbishment and illumination of tennis court subject to conditions - Planning Scheme Controls – Condition implementing policy as reflected in the relevant control – Condition valid.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Wren	Middletons
No appearance by or on behalf of any other party

HIS HONOUR:

The plaintiff in this matter proposes to refurbish a tennis court, and install and operate tennis court lighting at her home in Toorak.

By a decision of 31 May 2004 the Victorian Civil and Administrative Tribunal ("the Tribunal") directed that a permit be granted for such refurbishment including the proposed lighting system subject to a number of conditions.

One of these conditions was that the court must not be used between 9.30 p.m. and 7.30 a.m. The plaintiff contends that the Tribunal should have permitted use between 10.30 p.m. and 7.30 a.m. in accordance with the standard stipulated by way of performance requirement E6.3.2 of the Code of Practice – Private Tennis Court Development Revision 1 March 1999 ("the Code"). It is said the course followed by the Tribunal is vitiated by an error of law and that its decision is appellable pursuant to s148 of the Victorian Civil and Administrative Tribunal Act 1998.

In accordance with accepted practice the Tribunal has indicated that it will abide by this Court’s decision. Somewhat more unusually Stonnington City Council has elected not to appear before the Court, presumably because it does not support the proposed condition. This situation has deprived the Court of the assistance which it would usually expect to receive from a responsible authority in an appeal of this kind.

Although it will be necessary to say more about the terms of the relevant controls, it was accepted by Mr Wren of counsel for the plaintiff that the plaintiff required a permit for the proposed tennis court lighting pursuant to two separate planning scheme controls.

First, the plaintiff's land is governed by a Heritage Overlay pursuant to cl.43.01 of the Stonnington Planning Scheme and a permit was required to construct a building and to construct or carry out works.[1]
[1]Section 3 of the Planning and Environment Act 1987 defines "building" to include "(a) a structure and part of a building or structure; and (b) fences, walls, out-buildings, service installations and other appurtenances of a building … "

In the present case the Tribunal's decision records that there was no dispute between the parties that "as the site is situated at the rear of the land there are no heritage concerns regarding the…

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 Stogdale v Stonnington City Council

Details

AGLC: Stogdale v Stonnington City Council [2004] VSC 348
Case: [2004] VSC 348
Decision Date: 15 September 2004

CaseChat Overview and Summary

Stogdale sought a review of a decision by Stonnington City Council which refused to grant a permit for the refurbishment and illumination of a tennis court. The dispute was heard in the Victorian Civil and Administrative Tribunal. The permit was subject to conditions as per the planning scheme, and Stogdale challenged the validity of the conditions, arguing they were not consistent with the planning scheme.

The central legal issues before the Tribunal were whether the conditions imposed on the permit were valid and whether they aligned with the relevant planning scheme controls. Specifically, the Tribunal had to determine if the conditions reflected the policies outlined in the planning scheme and if they were appropriately implemented.

In its decision, the Tribunal held that the conditions were valid and properly implemented as per the planning scheme. The Tribunal found that the conditions reflected the policies of the planning scheme and were consistent with the relevant control measures. Consequently, the Tribunal dismissed Stogdale's appeal and upheld the Council's decision. The Tribunal did not make any further orders beyond its determination on the appeal.

Orders