Zumpano v Banyule City Council - [2003] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 7345 of 2002

ROSEMARY ZUMPANO	Applicant
v
BANYULE CITY COUNCIL (and 73 others according to the Schedule attached to the order of Balmford J made on 29 November 2002)	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-5 June 2003
DATE OF JUDGMENT:	23 June 2003
CASE MAY BE CITED AS:	Zumpano v Banyule
MEDIUM NEUTRAL CITATION:	[2003] VSC 215

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APPEAL FROM TRIBUNAL - Appeal against an order of Victorian Civil and Administrative Tribunal (“VCAT”) under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – refusal of VCAT to grant planning permit – land subject to a Significant Landscape Overlay (“SLO”) under the Banyule Planning Scheme – whether VCAT made a vitiating error of law - whether proper exercise of Tribunal’s discretion – appeal dismissed – discretion exercised appropriately and according to law.

Victorian Civil and Administrative Tribunal Act 1998 – s.148
Planning and Environment Act 1987 – s.60(1)

Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65
Spurling v Development Underwriting (Vic.) Pty Ltd (1973) VR 1
Shalit and Faine v Jackson Clement Burrows [2002] VSC 528
National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VR 592
Mornington Peninsula Shire Council v Savage [2002] VSC 399

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr AE Hooper QC with Mr G Peake and Mr M Townsend	Simon A Nixon
For the Firstnamed Respondent	Mr CJ Wren	Best Hooper

HER HONOUR:

Introduction

This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by Ms Monk, Senior Member, and Ms Komesaroff, Member, (“the second Tribunal”) on 21 August 2002, in its Planning List. Leave to appeal was granted by this Court on 29 November 2002, pursuant to section 148 of the VCAT Act. There was no appearance for any of the second to seventy-fourth respondents.

The order of the second Tribunal which is under appeal reads:

The decision of the responsible authority in relation to planning permit application No P273/00 is affirmed.
It is directed that a permit must not be granted for the land at 52 The Eyrie Eaglemont.

The applicant (“Mrs Zumpano”) is the owner of 52 The Eyrie Eaglemont (“the subject land”) on which a substantial house (“the building”) has been erected, apparently to lock-up stage only. On 20 April 2000 a differently constituted Tribunal (“the first Tribunal”) made orders that:

1.[Mrs Zumpano] reduce the wall heights and overall building height of the building so…

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: [2003] VSC 215
Decision Date: 23 June 2003

CaseChat Overview and Summary

The matter involves an appeal by the respondent, Banyule City Council, against an order of the Victorian Civil and Administrative Tribunal (VCAT). The appeal concerns the refusal of VCAT to grant a planning permit to the appellant, Mr. Zumpano, for land within a Significant Landscape Overlay (SLO) under the Banyule Planning Scheme. The core issue before the court was whether VCAT made a vitiating error of law or whether it properly exercised its discretion when denying the permit. The case was heard and determined by the Supreme Court of Victoria.

The legal issues revolved around the proper interpretation and application of relevant statutory provisions, including sections 148 of the Victorian Civil and Administrative Tribunal Act 1998 and section 60(1) of the Planning and Environment Act 1987. The court had to consider whether VCAT's decision was based on a correct understanding of the law and whether the tribunal exercised its discretion appropriately. The appellant argued that VCAT erred in its interpretation of the statutory provisions and failed to consider all relevant factors. The council, on the other hand, contended that VCAT's decision was well-founded and in accordance with the law.

In its decision, the court examined the principles set out in several precedent cases, including Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works, Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Kentucky Fried Chicken Pty Ltd v Gantidis, and others. The court found that VCAT had correctly interpreted the relevant legislation and exercised its discretion appropriately. The tribunal had considered all relevant factors and had not made any vitiating errors of law. The Supreme Court concluded that VCAT's decision was a proper exercise of its discretion, and therefore dismissed the appeal.

The final orders of the court were that the appeal by the respondent, Banyule City Council, against the order of VCAT was dismissed, and the decision of VCAT to refuse the planning permit was upheld. The council's costs of the appeal were awarded to the respondent.

Orders