1IN THE SUPREME COURT OF VICTORIA No of 2012COMMON LAW DIVISIONVALUATION COMPENSATION AND PLANNING LISTBetween
Carley Elizabeth Nicholls
Mathew Guy, Minister for Planning and Community Developmentfor the State of Victoria
Department of Planning and Community Development
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
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”
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
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
September 2011 the Minister directed that the Approvalbe gazetted in the government gazette of the State of Victoria on the 22
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
day of October 2011 the Minister advised the consultants to the Plaintiff inwriting that he had repealed the Approval.