Toscano v Baw Baw Shire Council
[2013] VSC 242
•23 April 2013 (Ex tempore). Revised reasons published 9 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2012 4877
| GUISEPPE TOSCANO | First Applicant |
| CATERINA TOSCANO | Second Applicant |
| v | |
| BAW BAW SHIRE COUNCIL | First Respondent |
| ANDREW PINCOTT | Second Respondent |
| LES TERRY | Third Respondent |
| ANDREA JAMIESON | Fourth Respondent |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2013 | |
DATE OF JUDGMENT: | 23 April 2013 (Ex tempore). Revised reasons published 9 May 2013 | |
CASE MAY BE CITED AS: | Toscano v Baw Baw Shire Council & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 242 | |
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Town and Country Planning – Farming Zone – Application for permit to subdivide by realigning title boundaries of farm – Proposal to create small parcel of land – Intention to construct dwelling on small parcel – Objections by neighbours – Council decides to grant permit - Victorian Civil and Administrative Tribunal sets aside Council’s decision – Application by landowners for leave to appeal on questions of law – No sufficiently arguable ground of appeal – Application for leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr R Cameron | Wantrup & Associates |
| For the Respondents | No appearance |
HIS HONOUR:
In this proceeding Guiseppe and Caterina Toscano seek leave to appeal under s 148 of the VictorianCivil and Administrative Tribunal Act 1998 from a decision and order made by the Victorian Civil and Administrative Tribunal (“VCAT”) on 2 August 2012. The application for leave was heard together with the proposed appeal, pursuant to directions previously given by a Judge of this Court. By its decision and order, VCAT set aside a decision made by the Baw Baw Shire Council to grant a planning permit that would have allowed the boundaries of certain rural land near Drouin owned by the Toscanos to be realigned.[1] Paragraph 2 of the Tribunal’s order provided:
In permit application PSB0049/11 no permit is granted for the land at 485 Buln Buln Road, Drouin.
[1]Pincott & Ors v Baw Baw Shire Council [2012] VCAT 1137.
The Court file contains a letter from a representative of the Baw Baw Shire Council advising that the Council did not intend to appear and would abide the decision of the Court. There is also a letter on file dated 2 October 2012 from solicitors acting for the second, third and fourth respondents, who were objectors before the Council and the successful applicants at VCAT (“the objectors”), advising that, for financial reasons, the objectors would not be taking part in this proceeding but that they continued to support VCAT’s decision.
To my mind it is very clear that this is not a suitable case for a grant of leave to appeal. I am not persuaded that any of the proposed grounds of appeal is sufficiently arguable to warrant a grant of leave. I have discussed each of the proposed grounds at some length with counsel for the Toscanos today. The discussion has proceeded principally by reference to the Toscanos’ lengthy written submissions.
In the proposed notice of appeal and in the Toscanos’ written submissions, the proposed grounds of appeal are dealt with under cover of a series of “questions of law”. There is considerable overlap between the questions and within each question. I will deal with the questions and the associated grounds in the order in which they are set out in the Toscanos’ written submissions.
Question A asks whether the Tribunal, in considering clause 22.07 and clause 35.07 of the Baw Baw Planning Scheme, took into account an irrelevant consideration. There is no substance in the grounds associated with Question A. The suggestion is that clauses 22.07 and 35.07 relate only to an application for a permit for a dwelling, whereas the Toscanos’ application to the Council was merely for realignment of their title boundaries. The suggestion is misconceived. Even if the Toscanos’ planning application could fairly be viewed as not involving any proposal for a dwelling to be built on the small parcel of land which was to be excised from the remainder, most of each of the clauses would still be relevant. The application to the Council amounted to an application for a permit to subdivide. A subdivision is a “development” within the meaning of the Planning and Environment Act 1987. Clauses 22.07 and 35.07 of the planning scheme contained extensive provisions which bore upon any such development, whether or not a dwelling was also proposed. In any event, the very purpose of the application made by the Toscanos to the Council was to facilitate the erection of a dwelling on the land proposed to be excised. This was expressly stated numerous times by and on behalf of the Toscanos in their dealings with the Council and was repeated numerous times by and on behalf of the Toscanos in the hearing at VCAT. It is true that the Toscanos did not descend to particulars as to the form of the proposed dwelling, but that is irrelevant. VCAT had regard only to those provisions of clause 22.07 and 35.07 which related to the proposal that there be a subdivision and the proposal that there be a dwelling. Those provisions were plainly relevant to the application before VCAT.
Nor is there anything of substance in Question B. Question B asks whether the Tribunal, in considering possible future on-sales of the proposed small allotment, took into account an irrelevant consideration. In my view it was perfectly appropriate for the Tribunal to take into account the possibility of future on-sales of the proposed allotment. Such a possibility is inherent in any application for subdivision. Subdivision by its very nature facilitates future on-sales of the block subdivided off. A future purchaser of the land which the Toscanos wished to excise might not have any connection with the process of farming the remaining land or any connection with farming at all. This matter was by no means irrelevant to the application before VCAT.
Question C asks whether the Tribunal took into account an irrelevant consideration in considering the possibility that, if the Council’s decision were not set aside, there might be generated a heightened interest in boundary realignments and in the creation of other small allotments in the Farming Zone. In my view, it is clear that the Tribunal proceeded appropriately in this regard. Even if one calls VCAT’s approach a “floodgates argument”, as the Toscanos’ submissions do, it is an argument that is authorised by the provisions of the planning scheme themselves. The relevant provisions of the planning scheme expressly discourage the proliferation of small residential-type blocks in the Farming Zone. In any event, not every so called floodgates argument is an invalid argument. Here, in my view, it was perfectly appropriate for the Tribunal to take into account the possible precedent or “knock on” effect, and all the more so because the Toscanos did not even attempt to distinguish this particular land from other land in the Farming Zone in relation to which a similar application might be made in the future.
This case is quite unlike Mornington Peninsula Shire Council v Savage[2], where there were very special and unusual features of the relevant land that had justified VCAT’s departure from the usual (statewide) principle of discouraging the excision of small parcels of Farming Zone land.
[2][2002] VSC 399 (Balmford J).
Questions D and E are dealt with together in the Toscanos’ written submissions. The Toscanos submit that VCAT failed to take into account certain allegedly relevant considerations. In particular, they say that VCAT should have, but did not, take into account that the Toscanos, because of their advancing age, would increasingly need assistance from their son in managing the farm; that the Toscanos intended that their son should in due course take over the farm; and that the proposed realignment of boundaries would have a positive impact on the management and productivity of the farm.
I do not necessarily accept that any of the matters relied upon in this regard were, in the particular circumstances of this case, mandatory considerations for VCAT. In any event, I am satisfied that VCAT did take into account every aspect of the evidentiary material and the submissions put forward by or on behalf of the Toscanos in relation to these matters. The problem for the Toscanos is, simply, that the Tribunal was not sufficiently persuaded by that evidentiary material and those submissions to grant the permit sought. VCAT was not persuaded because, on balance, and having regard to all of the material before it, it was not satisfied that the policy of the relevant provisions of the planning scheme would be advanced by the proposal. There is no doubt that the Tribunal was well aware of what the situation was for the Toscanos on the farm and what their plans were, including the suggestion that their son was to take over the farm in due course and that it would be better, in their view, for him to have a place of his own with his own title in order to raise finance for the purchase of the block and for the construction of a house on the block. However, the Tribunal was entitled to take the view, as it did, that these were “point in time” matters that, at the end of the day, were not of sufficient weight to warrant the grant of a subdivision permit.
Question F(a) is really a restatement of the argument relating to on-sales that was the subject of Question B. In my view the argument is not advanced by the submissions made under Question F(a). There was no need for VCAT to have any more material before it than it had in order to take the view that the effect of the subdivision would be to facilitate onward sales. VCAT was not required to find that there would in fact be an on-sale at any particular time, or within any particular period, in the future. There was no need for specific evidence in that regard. Rather, this was simply a matter that was part and parcel of the considerations that bore on the application for the permit, having regard to its inherent nature. There is in my view no merit in Question F(a) and the attached grounds.
Question F(b) harks back to the so-called “floodgates” approach of the Tribunal which I have already dealt with under Question C. There was no need for VCAT to have specific evidence before it to the effect that permitting this proposed development would lead to pressure for similar decisions in other like cases. Generally speaking, as a matter of principle, like cases should indeed be decided alike, whether by courts or by administrative tribunals. In Re Drake v Minister for Immigration & Ethnic Affairs (No 2)[3] Brennan J (as President of the Commonwealth Administrative Appeals Tribunal) said, regarding the application of policy:
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.
Moreover, in the present case, VCAT’s approach was properly founded in the policy of the planning scheme itself to discourage the proliferation of small land holdings, particularly residential-sized land holdings, in the Farming Zone.
[3](1979) 2 ALD 634, 639. This observation has been cited with approval in numerous subsequent cases.
Question G asks whether the tribunal failed to accord natural justice to the appellant. The associated grounds list numerous examples of VCAT’s alleged failure to accord natural justice. However, before me, counsel for the Toscanos, Mr Cameron, restricted himself principally to the question whether counsel who had appeared for the Toscanos at VCAT, Dr Cremean, should have been allowed to cross-examine one of the objectors, Mr Terry, more extensively than he was allowed to do. In my view there is no merit in this complaint. Indeed, there was no proper basis for VCAT to have allowed cross-examination of Mr Terry at all. Mr Terry had not put in a witness statement nor had he sought to give any oral evidence at VCAT. To the extent that the Tribunal had before it written material emanating from Mr Terry, the material was of no real significance. Quite contrary to normal practice, Mr Terry was initially required to give evidence, against his will, by the Tribunal, at the insistence of Dr Cremean. Not surprisingly, the situation soon got out of hand, as the transcript shows. In my view, the Tribunal very properly closed down the cross-examination of Mr Terry after a short time. Contrary to the submissions of the Toscanos, there was no breach of s 102 of the Victorian Civil and Administrative Tribunal Act 1998 nor any procedural unfairness at all, as against the Toscanos, in what happened with respect to Mr Terry.
Under Question G the Toscanos also raise a natural justice point with respect to the “on-sales” ground and the “floodgates” ground. In particular, under Question G(d), they assert that the on-sales ground and the floodgates ground were not flagged or exposed for the Toscanos to deal with at the Tribunal. However, in my view, it was obvious from the very terms of the planning scheme that these two matters would need to be dealt with. Moreover, Mr Cameron of counsel has now very fairly pointed to material in the appeal book that shows that both of the issues were in fact expressly flagged and exposed for comment at VCAT. This was done by way of letters that had been sent to the Council by the objectors and also by way of the evidence that was given by the Council’s Town Planner. Further, as Mr Cameron also fairly acknowledged, the Tribunal itself asked a question at an early stage which showed that the Tribunal was alive to the point that the proposed excision of the land might lead to future on-sales. I therefore see no merit in any suggestion that there was procedural unfairness on the part of VCAT in connection with its reliance on these two matters.
Question G(e) contains a suggestion that there was pre-judgment or apprehended bias on the part of the Tribunal member because he held in his reasons that the creation of isolated small lots in rural or agricultural zones with a view to the development of single dwellings for rural living or other incompatible uses is generally not appropriate. This is a hopeless suggestion. Nothing that was said or done by the Tribunal prior to the delivery of its written reasons is relied upon. The holding complained of is merely a reflection of the policy of the planning scheme itself. The allegation of pre-judgment or apprehended bias has no basis whatsoever.
Question H asks whether the Tribunal, in setting aside the decision under review in circumstances where no evidence was called by the second, third and fourth respondents, breached its obligation to act fairly and according to the substantial merits of the case in all proceedings as required by s 97 of the Victorian Civil and Administrative Tribunal Act 1998. Three matters were relied upon in this respect.
First, it was submitted that the Toscanos should have succeeded simply because no evidence was led on behalf of the objectors. But that is a misconceived submission. There was no onus on the objectors to lead evidence. The full facts of the matter were before the Tribunal. The Tribunal’s essential task was simply to compare the proposal with the provisions and policy of the planning scheme. That is what it did.
Secondly, the Toscanos complained of the way in which the Tribunal dealt with the evidence of Ms Mouy, a planning expert called by the Toscanos. In my view this complaint is also misconceived. Contrary to the Toscanos’ submission, the Tribunal did not reject the whole of Ms Mouy’s evidence. It accepted her evidence on matters that were uncontroversial, at least. It was only where and to the extent that Ms Mouy sought to base her conclusions on matters of agriculture that the Tribunal found a deficiency in her capacity to express a persuasive opinion. Ms Mouy herself acknowledged that she was not an agricultural expert. Indeed she acknowledged that another expert, Mr Galliene, had been engaged by the Toscanos to deal with the technical farming matters and that she was not an expert in that regard. The Tribunal noted Ms Mouy’s admission in this regard. In those circumstances I cannot see how the Tribunal can be justly criticised for holding that Ms Mouy was not in a position to advance the case of the Toscanos in relation to technical farming matters. That is all that the Tribunal relevantly said in paragraph 56 of its decision, which is the only paragraph complained of by the Toscanos under this heading.
Thirdly, the Toscanos complain of the way in which the Tribunal dealt with the evidence of Mr Galliene himself. I view this complaint as misconceived also. Contrary to the Toscanos’ submission, the Tribunal did not reject the whole or even most of the evidence of Mr Galliene. Rather, Mr Galliene’s expert report simply did not extend to matters that it would have needed to cover in order to persuade the Tribunal that the building of the proposed (second) dwelling on the land was so necessary for the proper management of the farm as to outweigh all of the other considerations applicable under the planning scheme that tended against the excision of small blocks for dwelling purposes.
In the end, Mr Cameron fairly conceded that the matters in Mr Galliene’s report (including his five conclusions) extend only to the way in which the farm property is currently run. Those matters either were uncontroversial or were accepted by the Tribunal. However, in the end, the Tribunal regarded them as of little weight in the overall picture. That view was well open to it.
I do not see any merit in the suggestion that the Tribunal acted unfairly or did not deal with the substantial merits of the case by reference to the way it treated the evidence of Mr Galliene.
For these reasons leave to appeal will be refused.
There will be no order as to costs.
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