Australia: Planning, environment & sustainability - key cases

Last Updated: 21 November 2018
Article by Tess Kerridge
Most Read Contributor in Australia, December 2018

In this article, we summarise the key issues in three recent cases before the Victorian Civil and Administrative Tribunal (VCAT) and the Supreme Court relating to demolition of heritage buildings, Department of Environment, Land, Water and Planning (DELWP) approval of a kangaroo cull, and a loss on sale claim brought after the owner had passed away.

Icon Co (Jessamine Avenue) Land Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1134

In this case, the Tribunal considered an application to demolish two dwellings at 271-273 Dandenong Road Prahran, which were C grade contributory buildings in a Heritage Overlay and within an intact heritage precinct, and their replacement with a modern residential development comprising 12 dwellings.

The Tribunal was constituted by Deputy President Helen Gibson and Member Sarah McDonald. The hearing took place over five days in July 2018.

The Applicant, Icon Co (Jessamine Avenue) Land Pty Ltd, sought a review of the Stonnington City Council's decision to refuse to grant it a permit under section 77 of the Planning and Environment Act 1987 (PE Act) to demolish two existing dwellings and replace them with a three storey contemporary residential building comprising 12 townhouse type dwellings.

In considering the heritage precinct within which the subject land fell, the Tribunal found that the precinct as a whole remained highly intact and was a 'unique collection of inter-war housing stock in this part of the municipality' (at 18) and that the subject dwellings that were proposed to be demolished 'are both an important part of, and contribute to, the significance of the heritage precinct' (at 20).

In reaching its decision to refuse the application to grant the permit, the Tribunal considered the principles of integrated decision-making set out in clause 10.01 (now clause 71.02-3) of the Victorian Planning Provisions, and the case of Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27. In that case, the Court of Appeal held that in deciding whether a permit should be granted to demolish or modify a building under the Heritage Overlay, considerations of a non-heritage nature may be taken into account provided that they are relevant matters under the provisions of the PE Act or the purposes, objectives or decision guidelines relating to, or incorporated into, the Heritage Overlay.

The Tribunal was not satisfied that the application of the principles of integrated decision-making found at former clause 10.01 (now clause 71.02-3) and articulated in the Boroondara City Council v 1045 Burke Road Pty Ltd case justified the demolition of the two subject heritage dwellings for a net increase of 10 dwellings. The Tribunal did not 'consider that the demand for additional housing to meet the needs of future population outweighs all other policies and objectives in the planning scheme relating to heritage for a development of this scale.' (at 57).

'The ability to consider non-heritage factors when determining applications under the Heritage Overlay identified in the 1045 Burke Road case is not an excuse to downplay or override the purpose of the control in the Heritage Overlay in run-of-the-mill applications. There must be something about the circumstances of the site, the proposal or the strength of the broader policy framework that makes it relevant to give more weight to non-heritage objectives when exercising discretion under the Heritage Overlay.' (at 72).

The Tribunal concluded that, in applying integrated decision-making, conflicting objectives in support of increased residential development and the need to account for population growth within metropolitan Melbourne and Stonnington, in particular, did not outweigh objectives under the planning scheme to protect places of heritage significance.

The Tribunal refused to grant the permit for demolition.

Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning (No 2) [2018] VSC 407

This was a judicial review decision of Justice Garde in response to a declaration application to the Supreme Court of Victoria by the plaintiff, Australian Society For Kangaroos Inc, in connection with a decision of the Department of Land, Water and Planning (DELWP) (the first defendant, who issued the authorisation) and the Department of Economic Development, Jobs, Transport and Resources (DEJTR) (the second defendant, who sought the authorisation) to authorise the destruction of a mob of approximately 400 eastern grey kangaroos ('the Authorisation') located at the site of the Melbourne Wholesale Market at 312–325D Cooper Street, Epping.

In 2017, DEJTR applied for an authorisation to cull 450 eastern grey kangaroos on the subject site. The application set out the findings of a 2012 Panel, and relied upon a Kangaroo Management Plan (2015) ('the Plan'), which set out the result of monthly monitoring of the eastern kangaroo population and found that the population had increased to an unsustainable level.

The recommendations in the Plan addressed two scenarios. Scenario one envisaged the land being developed within 12 months and recommended all kangaroos on the eastern half of the site be removed by shooting at night. Scenario two envisaged the land being retained for more than 12 months and recommended an in-situ kangaroo management plan be implemented, which would include immediate reduction of the population density to one hectare by shooting at night, controlling weeds, yearly culling and ongoing monitoring.

An authorised delegate of DELWP, Ms Suriya Vij, issued the Authorisation to DEJTR on 25 July 2017 without written reasons, as she was not asked to do so.

(The plaintiff submitted that DELWP fell into jurisdictional error when it decided to grant the authorisation because:

  • her finding was unreasonable, illogical, irrational and was not based on evidence
  • there was an inconsistency in the decision that a cull was necessary for all of the kangaroos under scenario one of the kangaroo management plan, but under scenario two some of the kangaroos could be retained
  • DEJTR's desire to sell the land was an irrelevant consideration.

The Plan considered two scenarios, both of which were possibilities, with sale considered as the more likely option at the time. The Court found nothing wrong or inappropriate with providing two such alternatives.

The Court found that Ms Vij's role was to decide whether she was satisfied that the grant of an authorisation was necessary to support the Plan. In oral evidence, Ms Vij explained that she reviewed the Plan, but did not factor into her decision the significant encumbrance to the sale of the land that the substantial mob of kangaroos presented. Management of the kangaroos was found to be a matter for DELWP, and the Court found no reason to doubt her evidence on this matter. There was nothing unreasonable, illogical or irrational about the decision that Ms Vij took.

The Court also considered whether Ms Vij was satisfied that the Authorisation was necessary to support a recognised wildlife management plan, per section 28A of the Wildlife Act 1975 ('the Act'). The Court found that section 28A(1) requires the Secretary to be satisfied that the Authorisation is necessary for the particular purpose set out in one of sections 28(1)(c)-(i). It does not require or authorise a Court to independently inquire or objectively determine whether the Authorisation satisfies the requirements of one of sections 28(1)(c)-(i). The requirement is a subjective jurisdictional fact.

The Court found that the word 'necessary' in section 28A(1) of the Act takes the meaning of 'reasonably required in the circumstances or legally ancillary to the accomplishment of the purpose' consistent with the findings in the case of Attorney-General v Walker (1849) 3 Ex 242, 255–256 (Pollock CB).

The Court then considered the meaning of the word 'recognised' in section 28A(1)(h) of the Act, which is not defined in the Act itself, nor is there any extrinsic material that sheds light on the meaning of the word. After considering the word 'recognised' in the context of section 28A(1) and its dictionary definition, the Court found that it was the Secretary to DELWP who must be satisfied that the Kangaroo Management Plan was a 'recognised wildlife management plan' for the purposes of section 28A(1), by having regard to relevant considerations.

The Court found that Ms Vij applied the correct legal test under section 28A(1)(h) of the Act and was satisfied on the evidence before her that the authorisation was necessary to support the recognised wildlife management plan. The grounds relied upon by the plaintiff in the proceeding failed and the proceeding was dismissed.

Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360

When a Public Acquisition Overlay is applied to land, the Planning and Environment Act 1987 (PE Act) gives the owner of the land rights to seek compensation from the acquiring authority where, upon sale of the land, the sale price is lower than expected as a consequence of the existence of the Overlay.

In a recent decision, Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360, a Public Acquisition Overlay was introduced, however, the owner, Mrs Liptak, died before she was able to sell her land (thus incurring the loss) and trigger a claim for compensation.

The executors of the estate of Mrs Liptak applied to the Supreme Court for a declaration to the effect that they were still eligible to make a 'loss on sale' claim under the PE Act upon the sale of the subject land.

A Public Acquisition Overlay was applied to the subject land in 2010. The landowner, Mrs Liptak, died on 22 January 2016, and the plaintiffs were appointed executors of her estate on 22 March 2016 upon probate being granted.

Justice Emerton found that the executors (despite having registered interests on the title to the land) were not 'owners' for the purposes of the loss on sale provisions of the Act as they did not own the land at the time that the land was reserved in 2010. Justice Emerton found (at paragraph 67 of the decision) that 'Mrs Liptak's entitlement to claim compensation from the planning authority for financial loss caused by the Reservation effectively dies with her'.

An alternative argument put forward by the plaintiffs was that executors were 'entitled to be registered' as proprietors of the land at the time the land was reserved for the purposes of the definition of 'owners' in section 3 of the PE Act. Justice Emerton rejected this argument and found that the executors had no entitlement to be registered as proprietors of the land until the testator was deceased.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Tess Kerridge
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