Zumpano v Banyule City Council - [2016] VSC 420

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2015 5699

ROSEMARY ZUMPANO	Plaintiff
v
BANYULE CITY COUNCIL and others (according to the Schedule attached)	Defendants

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2016
DATE OF JUDGMENT:	25 July 2016
CASE MAY BE CITED AS:	Zumpano v Banyule City Council
MEDIUM NEUTRAL CITATION:	[2016] VSC 420

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PLANNING – Application to convert existing two-storey dwelling into two two-storey dwellings - Repeat application for review to Victorian Civil and Administrative Tribunal – Error of law – Measurement by Tribunal of maximum height – Natural justice – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Hicks	Rigby Cooke Lawyers
For the First Defendant	Mr P Chiappi	Best Hooper Lawyers

HIS HONOUR:

Introduction

Ms Rosemary Zumpano (‘the applicant’) seeks leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) from the decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) dated 7 October 2015. The Tribunal’s decision affirmed the decision of the Banyule City Council (‘the Council’) refusing to grant the applicant a permit. The applicant seeks a permit for buildings and works to convert an existing two-storey dwelling at 16 Odenwald Road, Eaglemont, Victoria (‘the subject land’) into two two-storey dwellings. The dwelling was constructed between December 2002 and January 2005.[1]
[1]Plaintiff’s outline of submissions dated 26 February 2016 (‘Applicant’s submissions’) [6].

This is the fourth occasion that an application for a permit under the Banyule Planning Scheme (‘the Planning Scheme’) for the subject land has been before the Tribunal. Each application for review to the Tribunal has been made under s 77 of the Planning and Environment Act 1987 (Vic) (‘P & E Act’). [2]
[2]Zumpano v Banyule City Council [2015] VCAT 1572 (‘Tribunal decision’); Petridis Cornetta Architects v Banyule CC [2000] VCAT 2090 (‘Petridis’); Bainbridge Ridge Pty Ltd v Banyule CC [2012] VCAT 1641 (‘Bainbridge’); Zinc Melbourne Pty Ltd v Banyule CC [2013] VCAT 2111 (‘Zinc’).

The most recent application to the Tribunal included works intended to:

·convert a garage into a rumpus room and replace the driveway with landscaping;
·provide a new garage at the rear, accessed from a right-of-way;
·narrow an existing double driveway to enable more landscaping to be provided in the front set back; and
·close an internal door and enable the building to be used as a single dwelling.[3]

[3]Tribunal decision [1].

The Tribunal hearing extended over two days. A landscape architect and planner were called to give expert evidence for the applicant. The Council and four objectors appeared before the Tribunal and opposed the application.[4]
[4]The objectors subsequently informed the Court that they do not wish to participate in this proceeding - see the order of the Honourable Justice Emerton dated 28 January 2016.

Tribunal decision

The Tribunal identified the matters for determination as whether…

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.

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Details

Case: [2016] VSC 420
Decision Date: 25 July 2016

CaseChat Overview and Summary

Zumpano, the applicant, sought to convert their two-storey dwelling into two separate two-storey dwellings. This application was opposed by the Banyule City Council, the respondent, which led to the matter being reviewed by the Victorian Civil and Administrative Tribunal (VCAT). The applicant subsequently sought leave to appeal the VCAT's decision to the Supreme Court, contending that VCAT had erred in law in measuring the maximum height of the proposed dwellings.

The primary legal issue before the court was whether the Tribunal had correctly applied the relevant planning laws in assessing the maximum height of the proposed dwellings. The applicant argued that VCAT had made an error in law by using an incorrect benchmark for measuring the maximum height, which led to an incorrect assessment of compliance with the planning scheme. The applicant further argued that the Tribunal had failed to observe the rules of natural justice by not providing an adequate opportunity to be heard on the issue of the correct benchmark for measurement.

The court held that VCAT had not erred in law in its assessment of the maximum height of the proposed dwellings. The court found that VCAT had correctly applied the relevant planning laws and had observed the rules of natural justice by providing the applicant with an adequate opportunity to be heard. The court further held that the applicant's arguments were without merit and that there was no basis for the grant of leave to appeal. Consequently, the application for leave to appeal was dismissed.

The court made no orders as to costs.

Orders