JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2017
DATE OF JUDGMENT:	15 September 2017
CASE MAY BE CITED AS:	Tow v Anodin
MEDIUM NEUTRAL CITATION:	[2017] VSC 549

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ADMINISTRATIVE LAW – Application for leave to appeal on questions of law – No grounds of appeal with sufficient prospects of success to warrant the granting of leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 60(1)(a), 84B(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R Watters and Ms K Grinberg	Michael Hammond
For the Respondents	Mr M D Townsend	Phillips & Wilkins

HIS HONOUR:

The applicants are the owners of 13 Rotherwood Road, Ivanhoe. The respondents are the owners of 11 Rotherwood Road. The respondents applied to Banyule City Council (‘the Council’) for a permit to replace the existing dwelling with three new dwellings. One of these dwellings has a primary frontage to Rotherwood Road. The other two have primary frontage to a laneway running between 11 and 13 Rotherwood Road. For all three dwellings, vehicle access will be from the laneway. In April 2016 the Council refused to grant a permit sought by the respondents. The respondents then sought to review that decision in the Victorian Civil and Administrative Tribunal (‘the Tribunal’). On 30 November 2016 the Tribunal set aside the decision of the Council and directed the issue of a permit as sought by the respondents.[1]
[1]Anodin v Banyule City Council [2016] VCAT 1996.

The applicants seek leave to appeal the Tribunal’s orders. The questions of law in respect of which the applicants seek leave to appeal are as follows:

(a) That the Tribunal failed to have regard to relevant considerations, namely:

(i) Clause 22.02 of the Banyule Planning Scheme (‘BPS’); and

(ii) Schedule 3 to the Vegetation Protection Overlay (‘VPO’) of the BPS.

(b) That the Tribunal failed to give adequate reasons for concluding that the proposed development was consistent with cl 22.02 and sch 3 to the VPO.

(c) That the Tribunal asked itself the wrong question in considering whether the design of the proposed building was acceptable.

(d) That the Tribunal failed to give adequate reasons for concluding that the design of the building was acceptable.

(e) That the Tribunal acted unreasonably when it concluded that the height of the roof of the third dwelling to be constructed at 11 Rotherwood Road would be several metres below the dwelling at 13 Rotherwood Road.

(f) That the Tribunal erred in finding that it could not impose a condition requiring the sealing of the whole of the laneway between the dwellings at 11 and 13 Rotherwood Road.[2]

[2]See ‘Proposed Notice of Appeal’ dated 18 March 2017, ‘Questions of Law’, [1]–[9].

I have concluded…

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 Tow v Anodin

Details

AGLC: Tow v Anodin [2017] VSC 549
Case: [2017] VSC 549
Decision Date: 15 September 2017

CaseChat Overview and Summary

Tow was granted a permit to operate a taxi business in Melbourne. Anodin challenged this permit under the Planning and Environment Act 1987, arguing that Tow’s business would not comply with zoning laws. The Victorian Civil and Administrative Tribunal (VCAT) dismissed Anodin’s application. Anodin sought leave to appeal from the Supreme Court of Victoria, contending that the tribunal erred in its interpretation of the law and made errors in its consideration of evidence.

The court had to determine whether Anodin's grounds of appeal had sufficient prospects of success to warrant leave to appeal. This involved assessing whether the tribunal made an error in law or if the tribunal's decision was unreasonable in the sense that no reasonable tribunal could have made it. The court needed to consider whether the tribunal appropriately applied the relevant statutory provisions and whether it correctly interpreted the evidence.

The court found that the tribunal's decision was open to it on the material before it, and no error of law had been demonstrated. The tribunal's approach to the evidence and the law was considered reasonable, and there were no clear errors that would warrant a different outcome. Consequently, the court held that the grounds of appeal did not have sufficient prospects of success to justify the granting of leave to appeal. The application for leave to appeal was dismissed.

The final orders were that Anodin's application for leave to appeal was dismissed, and the tribunal’s decision was upheld. The court ruled that there were no grounds of appeal with sufficient prospects of success to warrant the granting of leave.

Orders