Plaintiff v Defendants

Plaintiff v Defendants - [2006] VSC 57 - VSC 2006 case summary — Zoe

[75]

(1) The Authority must, without delay after the service of a notice of intention to acquire under section 6 or amendment of such a notice under section 14, lodge with the Registrar of Titles notice in the form approved under the Transfer of Land Act 1958 of the notice of intention to acquire or the amended notice (as the case may be) together with the prescribed fee.

(2) Upon receipt of a copy of a notice of intention to acquire, the Registrar of Titles must make a recording of the notice in the Register or (if this is not practicable) must by displaying a map or other appropriate means make the notice of intention to acquire available for inspection.

(3) Upon being notified by the Authority of any amendment agreed upon between the Authority and the person interested in the land under section 14 in respect of the interest proposed to be acquired or the extent of the land affected, the Registrar of Titles must amend any recording made under sub-section (2) or give notice of the amendment in any other manner referred to in that sub-section.

(4) If a notice lapses or is cancelled, the Authority must give the Registrar of Titles notice in writing of the lapse or cancellation.

(5) Upon being notified by the Authority of the lapsing or cancellation in whole or in part of any notice of intention to acquire, the Registrar of Titles must delete from the Register any recordings of the notice or make a recording in the Register of the lapsing or cancellation, or remove the map or other relevant document referred to in sub-section (2) accordingly.

(6) After deleting a recording under sub-section (5), the Registrar of Titles must in writing advise the registered proprietor of the land that the registered proprietor may apply under section 32(2) of the Transfer of Land Act 1958 for a new certificate of title to be produced.

(7) If the registered proprietor applies under section 32(2) for the production of a new certificate, the Authority must pay the fees prescribed for the purpose of that provision.

(8) Any notice of intention to acquire so made available for inspection has effect for the purposes of section 42 of the Transfer of Land Act 1958 as if it were recorded in the Register.

(9) A person is not entitled to receive from the Authority any damages or compensation resulting from compliance by the Authority with this section or anything arising from that compliance."

[79]

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.

(2) The objectives of the planning framework established by this Act are-

(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;

(l) to provide for compensation when land is set aside for public purposes and in other circumstances.

[196]

(i) that VicRoads, acting on expert geotechnical and property services advice, had moved the Craigieburn Bypass alignment to the Epping Development Bypass Alignment;

(ii) that moving the Craigieburn Bypass Alignment from the Epping Development Alignment on to the Love Pre-Acquisition Land would effectively sterilise any political extraction of the Stone Resource between Cooper Street and O'Herns Road;

(iii) that an alignment of the Craigieburn Bypass which effectively sterilised the Stone Resource would be inconsistent with sections 4(1)(b) and 12(2)(c) of the P&E Act;

(iv) that section 16(3) of the Transport Act provided that in the exercise of its functions, VicRoads must have regard to the achievement of certain objects, and in particular:

(A) that VicRoads operate within Government Policy (section 16(3)(b)), which would include policies relating to the protection of a natural rock resource, such as the Stone Resource, and relevant planning policies; and

(B) the matters set out in sections 16(3)(n), (o), (q), and (r) of the Transport Act.

(v) the need in this case to exercise available statutory power positively so as to protect the Stone Resource and the Clonard Homestead Complex by an alignment design and location having that effect;

(vi) the relevant parts of:

(A) the Quarry Permit Panel's 1998 Report;

(B) the VicRoads PAR 1998; and

(C) the First Advisory Committee's Report;

(vii) the availability of alternative land between Cooper Street and O'Herns Road:

(A) owned and offered by Love; and

(B) owned and offered by Epping Development,

and available at a far lesser cost, in particular the Epping Development Bypass Alignment;

(viii) the economic effect of price competition for the supply of basalt construction material;

(xi) the economic effect of an alignment which contained the Stone Resource and which would require millions of dollars in compensation to be paid;

(x) the need to prudently apply the Commonwealth funds to be advanced to VicRoads for the acquisition of land necessary for the Craigieburn Bypass;

[395]

[1] See: T 538.

[2] Ketterman v Hansel Properties Limited [1987] 1 AC 198 at 212 per Lord Brandon of Oakbrook; Commonwealth v V_erwayen_ (1990) 170 CLR 394 at 456 per Dawson, J.

[3] (1990) 170 CLR 394.

[4] Ibid. at 456.

[5] [2005] VSC 251.

[6] See T 601-6.

[7] T 601.

[8] In paragraph 23-4.

[9] In paragraphs 241-2.

[10] See: T 1097-8 and allegations in relation to Minister Batchelor's alleged breach of statutory duty in paragraphs 252-254 and, in relation to VicRoads alleged breach of statutory duty, in paragraphs 256, 259-62.

[11] In paragraphs 60, 124 and 139 of the particulars.

[12] In paragraphs 56, in relation to the breach of "Woolner's planning advice duty" and 57, in relation to his misfeasance; 62, in relation to the breach of "Woolner's and Blake's planning advice duty" and 63, in relation to their misfeasance; 97, in relation to the breaches of "the "2000 Interdepartmental Working Party's planning advice duty" and the "VicRoads' planning advice duty" and 98, in relation to misfeasance by VicRoads (and, apparently, the State of Victoria); 111, in relation to the breach of "VicRoads' Second Advisory Committee planning advice duty" and 118, in relation to VicRoads' misfeasance.

[13] At T611.

[14] Dated 15 August 2005.

[15] [1985] HCA 81; (1985) 159 CLR 550 at 584.

[16] 81 LGR 193.

[17] In paragraphs 60, 124 and 139 of the particulars.

[18] [2005] VSC 39 at [13].

[19] In paragraphs 120, 149, 198 and 224.

[20] In paragraphs 141, 167, 200, 201 and 248.

[21] In paragraphs 142, 168 and 249.

[22] In paragraph 159.

[23] In paragraph 257.

[24] In paragraph 258.

[25] In paragraphs 87 and 88.

[26] In paragraph 56(ii) of the particulars, for example.

[27] At T928.

[28] In paragraphs 7 and 10.

[29] Undated "Submissions of the First and Second Defendants" para. 21.

[30] In "Plaintiff's Supplementary Outline of Submissions Re Existence of a Duty of Care" dated 21 June 2005.

[31] [2003] VSC 410.

[32] See: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [211] per Kirby, J.

[33] See: Sydney City Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97 at 100 per Barwick, CJ.

[34] Tame v NSW [2002] HCA 35; (2002) 211 CLR 317 at 401 -2 [248]-[249] per Hayne, J.

[35] See: Crimmins v Stevedoring Industry Finance Corporation [1999] HCA 59; (1999) 200 CLR 1 at [72] per McHugh, J.

[36] See: San Sebastian v The Minister (1986)162 CLR 340 at 370-2 per Brennan, J.

[37] In the Plaintiff's Supplementary Outline of Submissions Re "Pure Economic Loss" dated 21 June 2005.

[38] Citing Northern Territory v Mengel (1995) 185 CLR 307 at 357 per Mason, CJ, Dawson, Toohey, Gaudron and McHugh, JJ.

[39] See: Tampion v Anderson [1972] VR 715 at 720 per Smith, J.

[40] In paragraph 97.

[41] See: Gunns Limited v Marr [2005] VSC 251 at para. [18] per Bongiorno, J.

[42] In paragraph 98.

[43] In paragraph 7(a)-(d).

[44] In paragraph 10.

[45] In paragraph 93.

[46] In paragraph 94.

[47] See; New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at 586 [213] and, generally, at 580-95 [196]-[244] per Gummow and Hayne, JJ.

[48] In paragraph 71 of the particulars.

[49] At T132 and 893-4.

[50] T 899 lines 20-31.

[51] In paragraph 86

[52] T 879 lines 20-2.

[53] In paragraph 48(e) of the submissions filed on 11 June 2005.

[54] T 941 lines 10-4.

[55] Crown Proceedings Act 1958, s 23(1)(b).

[56] In paragraphs 5, 7 and 9.

[57] In paragraphs 110-6.

[58] In paragraphs 122-8.

[59] In paragraphs 130-3 and 135.

[60] See T983-5.

[61] In paragraph 253.

[62] Set out above at [121].

[63] In paragraph 107.

[64] In paragraph 137.

[65] In paragraph 120 of the particulars.

[66] In paragraph 122 of the particulars.

[67] In paragraphs 96, 106 and142.

[68] In paragraphs 106, 142 and 191.

[69] In paragraph 142.

[70] In paragraph 303(a)(ii)(G).

[71] In paragraph 126 of the particulars.

[72] See: Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O'Reilly v Commissioner of the State Bank of Victoria [1983] HCA 47; (1982) 44 ALR 27; Minister for Aboriginal Affairs & Anor v Peko Wallsend Limited & Ors [1986] HCA 40; (1985-6) 162 CLR 24.

[73] See : Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 437 per Hayne, J.

[74] In paragraph 143A.

[75] See T 1100: where senior counsel for Mr Love identified the omission of the words "purported to" before what should have been the word "serve"(rather than "served") in paragraph 257.

[76] See: s 24(1) of the LAC Act.

[77] Set out above at [121].

[78] (1995) 182 CLR 131 ALR.

[79] [1996] VicRp 62; [1996] 2 VR 117 at 125-7 per Winneke, P and 147-8 per Brooking, JA.

[80] At T1123.

[81] At T481.

[82] See Plaintiff's written submissions in reply dated 13 June 2005 at p. 6-7 para. [22].

[83] In paragraph 174U(e).

[84] I have assumed that the particulars in paragraph 174U are intended as particulars of the allegations in paragraph 302Y, rather than 302X.

[85] (1978) 142 CLR 1.

[86] [2004] UKPC 36; [2005] 2 All ER 273.

[87] See : Buchanan v Jennings [2004] UKPC 36; [2005] 2 All ER 273 at 287 para. [18] per Lord Bingham.

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