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Further Amended Statement of Claim

Further Amended Statement of Claim

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Published by: ABC News Online on Jan 20, 2012
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01/20/2012

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1IN THE SUPREME COURT OF VICTORIA No of 2012COMMON LAW DIVISIONVALUATION COMPENSATION AND PLANNING LISTBetween
Carley Elizabeth Nicholls
Plaintiff 
Mathew Guy, Minister for Planning and Community Developmentfor the State of Victoria
First defendant
Department of Planning and Community Development
Second Defendant1.
 
The Plaintiff is the purchaser of land from John Francis Kennedy Cadogan and PaulineBeverley Morton (The Vendors) described in Certificate of Title Volume 11242 Folio 406 (Theland) pursuant to contract dated the 11
th
May 2011 (the contract).2.
 
The contract was subject to the following special condition (the special condition):
“This contract is subject to the purchaser’s approval of a due d
iligence study, which
the purchaser will undertake to complete within 16 weeks of the vendor’s signing
the contract. The purchaser must notify the vendors in writing if the purchaser does
not want to proceed by the expiration of the 16 week period”
 3.
 
The First Defendant is the lawfully appointed Minister of the Department for Planning andCommunity Development (the Department) of the State of Victoria (the Minister) and assuch possesses the powers and responsibilities conferred on the Minister by the Planningand Environment Act 1987 of the State of Victoria (the Act) and in particular the powers andresponsibilities conferred by Sections 20(4) and 36(1) of the Act.4.
 
The Second Defendant has the responsibility of administering the Act and undertaking allacts, actions or activities necessary for administering the Act and implementing the exerciseof the powers and responsibilities of the Minister.5.
 
Prior to entering into the contract the Vendors had applied to the Minister in the mannerand circumstances hereinafter described requesting him to exercise his authority pursuantto section 20(4) of the Planning and Environment Act 1987 (the Act) to rezone the land fromits existing designation of farm land to residential one.6.
 
On entering into the contract, the vendors assigned their interest in the aforesaidapplication to the Plaintiff and thereafter, with the knowledge of the Defendants theapplication to the Minister was conducted by and on behalf of the Plaintiff.7.
 
On or about the 8
th
September 2011 the Minister pursuant to the powers conferred uponhim by Section 20(4) of the Act approved an amendment C125 to the Bass Coast PlanningScheme whereby the land was rezoned from rural to residential 1 (the Approval) and on thesame date signed and forwarded a letter addressed to the consultants for the Plaintiff formally advising of the Approval (the letter).8.
 
Upon receipt of the formal advice from the Minister of the Approval the purchaser exercisedher right pursuant to the special condition resulting in the contract becoming unconditional.9.
 
Subsequently and prior to the 21
st
September 2011 the Minister directed that the Approvalbe gazetted in the government gazette of the State of Victoria on the 22
nd
Septemberpursuant to Section 36(1) of the Act.10.
 
In the event, the Approval has not been gazetted and has not yet come into effect.11.
 
On the 10
th
day of October 2011 the Minister advised the consultants to the Plaintiff inwriting that he had repealed the Approval.
 
212.
 
The Plaintiff is adversely affected by the purported repeal of the Approval and the failure togazette the Approval.13.
 
The Plaintiff seeks a declaration that the Approval was a proper exercise of the powerconferred upon the Minister by Section 20(4) of the Act and a further declaration that theMinister and/or the second Defendant are in breach of Section 36(1) of the Act and a furtherdeclaration that the Minister and or the Second Defendant publish the Approval in thegovernment gazette pursuant to Section 36(1) of the Act so that upon publication theApproval will come into effect.
Particulars
a.
 
In 2009 the then Minister for Planning appointed a panel (the Panel) to investigateand make recommendations in relation to the Structure plan C88 Amendment of Bass Coast Council.b.
 
The Panel heard evidence at Cowes in late September and early October 2009.c.
 
The Panel acknowledged that the Structure Plan should identify land suitable toaccommodate future growth for 15 years and accepted evidence that there was onlysufficient residential land within the Cowes Town Boundary for 8-11 years.d.
 
As at the date of the Approval there had been no increase in the supply of residential land within the Cowes Town Boundary since the Panel hearing.e.
 
The Vendors, through their consultants, made submissions to the panel to have theland included in the town boundary.
 f.
 
The Panel accepted that the land
“has a history that envisaged its ultimate
residential development; the land does not have any infrastructure or climate changeimpact constraints, would not add a level of land supply that would be inconsistent with the Clause 14.01 and would not be visible from the beach in front of theShearwater colony ......we believe conceptually the proposal to include the
Cadogan land does not constitute a linear expansion of the urban settlement”.
 
g.
 
In relation to the land Melbourne Water submitted to the Panel that
“This site is
relatively small with an upstream catchment area that is less than 0 hectares,drainage for this site is to the Councils satisfaction. This site is well above existingand potential high storm tide levels. The majority of the site is above 15.0 metres AHD. There is good grade through the lower area of the site (1 in 20) and the site
contains no Melbourne Water drains”.
 h.
 
Despite that finding the Panel recommended against the land being included in thetown boundary but did recommend that other land which was not adjacent toexisting infrastructure and involved a transaction with the local golf club which itself is threatened by projected flooding and salinity be included.i.
 
Aggrieved by the outcome of the Panel hearing on the 28
th
March 2011 the Vendorsby their planning consultants appealed to the Minister to intervene pursuant toSection 20(4) of the Planning and Environment Act 1987 in relation to the Bass CoastPlanning Scheme as it related to the district of Cowes on Phillip Island and to includethe Ventnor land within the town boundary of Cowes as residential land (theAppeal). j.
 
On the 11
th
May 2011 the Vendors assigned their interest in the Appeal to thePlaintiff and thereafter with the knowledge of the Defendants the Appeal wasconducted on behalf of the Plaintiff;k.
 
In the process of the Appeal The Plaintiff through her consultants provided thefollowing material to the officers of the Minister:1.
 
Explanatory report;2.
 
Ecology Partners advice in relation to environmental issues;3.
 
Carter Keck advice on land availability and economics;
 
34.
 
Draft development overlay;5.
 
Ventnor infrastructure servicing report from Sinclair Knight Mertz;6.
 
Phillip Island Flora and Fauna assessment report;7.
 
Concept plan;8.
 
1971 Subdivision plan;9.
 
Traffic and car parking report;l.
 
In particular the aforesaid documents indicated that there are now only five years of residential supply of land within the Town Boundary of Cowes;m.
 
The Appeal proceeded through multi levels of the Department of Planning whichwas already in possession of the Panel report and which included a summary of allobjections to the rezoning of the land;n.
 
In or about July of 2011 an officer of the Second Defendant sought and obtainedlegal advice as to the
Minister’s
responsibilities pursuant to Section 20(4) of the Act;o.
 
In this process the Minister or a person on his behalf contacted the CEO of the BassCoast Shire Council to determine whether the Council was opposed to theamendment and the CEO indicated that Council had no objection;p.
 
On the 8
th
day of September 2011 the Minister wrote to the Mayor of Bass CoastShire Council advising her that he had exercised his power pursuant to section 20(4)of the Act to rezone the land and approved amendment C125 to the Bass CoastPlanning Scheme as residential one and include it in the Town boundary of Ventnorand apply relevant Overlay planning controls to the site and that the amendmentwould come into effect when notice of its approval is published in the VictoriaGovernment Gazette.q.
 
By virtue of section 36(1) of the Act it was and is mandatory for the Minister and orthe second Defendant to publish notice of the Approval in the Victoria GovernmentGazette.r.
 
On or about the 20
th
September 2011 Anna Batters of the office of the Ministercontacted Fiona Shecten, the consultant to the Plaintiff and informed her that the
Minister’s approval would be published in the Victorian government gazette on the
22nd September 2011.s.
 
The Approval has not been published in the Victorian government gazette and onthe 28
th
October 2011 the Minister caused the General Counsel for the Departmentto write a letter to the legal representative of the Plaintiff stating as follows:
TheMinister validly repealed amendment C125. Amendment C125 will not, therefore, be
gazetted” 
.
 14.
 
In the alternative the Plaintiff claims that in the event that the Minister was authorised inlaw to repeal the Approval without proceeding to the publication of the Approval in theGazette (which is denied) a declaration is sought that the decision to repeal was an abuse of the Rule of Law, against the laws of natural justice, offensive to the legislative process,biased, politically motivated and not in the best interest of Victoria or that part of Victoriaknown as Ventnor and should be overturned.
Particulars
(a)
 
On the 10
th
October 2011 the Minister wrote to the agents for the Plaintiff advising that he had decided to repeal his decision to rezone the land (the
Repeal) and stated as his reason “My decision on this matter is in response to
further discussions that I have held with the Bass Coast Shire Council, inparticular on the strategic planning initiativ
es that Council has undertaken”;
 

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