VCAT appeals not yet exhausted

By Bridget Brady
THE City of Casey was wrong in its belief it could not appeal VCAT’s decision, the Ombudsman found.
George Brouwer said the City of Casey could have appealed the 2004 decision, which allowed residential development to occur up to the landfill boundary, to the Supreme Court.
The council had already refused the planning application to develop past the 200-metre buffer.
The report found that in a media release in October last year, the City of Casey said: “it is important to note that the City of Casey was unable to challenge the VCAT ruling at a higher court as these matters can only be challenged in a point of law, which, in this particular case, did not exist because VCAT’s decision was determined on the basis of its interpretation on the evidence put before it and not on matters of law”. But Mr Brouwer found that to be incorrect.
“On legal advice, I identified that it is an error of law for VCAT to fail to apply the correct legal test to the facts found by it,” Mr Brouwer said.
Casey chief executive Mike Tyler said he had no knowledge of whether the council sought legal advice about the possibility of an appeal, Mr Brouwer said.
Mr Tyler was not involved with the issuing of the release as he was on leave at the time, Mr Brouwer said.
The Ombudsman said the council failed to challenge any further applications from Peet to develop the later stages of Brookland Greens.
But the council said the same set of facts would have applied to any further VCAT hearings and that the council would have been criticised for wasting time on repeat appeals.
“Almost certainly costs orders would have been made against the City of Casey, and VCAT would have criticised the City of Casey for wasting its time and ratepayers’ money,” the council said.