[1985] VR 433
THORNE v DOUG WADE CONSULTANTS PTY LTD
SUPREME COURT OF VICTORIA
O'BRYAN J (1), FULL COURT: KAYE (2), McGARVIE (3) AND MARKS (2) JJ
O'BRYAN J: 3-4, 7-11, 14-18, 21-25, 28-30 November, 1-2, 5-7, 19 December 1983, 6 April 1984; FULL COURT: 7, 12-14, 18-21, 25-26 March, 21 May 1985
[1985] VR 433
Town and country planning — Interim Development Order — Responsible authority — Planning permit — Notice of proposed works to other persons — Relevant considerations — Effect of regard to irrelevant considerations — Unreasonable exercise of discretionary power — Town and Country Planning Act 1961 (No. 6849), s18B. .
A company controlled by Mr. and Mrs. Wade ("the Wades") purchased a house in a cluster of Victorian terrace houses in Parkville. They engaged an architect to prepare plans for alterations to the house. The alterations did not involve an increase of the floor area of the premises but they did have an adverse impact on certain surrounding properties.
Mr. Wade approached the owner of each house on either side of his house, showed them the plans and explained the proposals to them. Both neighbours signed an acknowledgement on the plans that they had no objection to the proposed works. An application was made to the City of Melbourne for a permit. The application was not advertised. The acting city planner thereupon decided to grant a permit pursuant to the City's Interim Development Order ("IDO"). The conditions to which the permit were to be subject were submitted to the Wades and, when no objection was received from them, the permit was duly issued.
Subsequently, a building permit was issued and work commenced. During the course of the renovations, the plaintiffs commenced proceedings against the Wades alleging fraud and misrepresentation and seeking declarations that the IDO. permit was void and of no effect and that the alterations could not lawfully be carried out without a permit under the Metropolitan Planning Scheme Ordinance ("PSO"), interlocutory and permanent injunctions restraining the Wades from continuing with the works, a mandatory injunction requiring the Wades to restore the property to its conditions before the works commenced and damages. Subsequently, the City of Melbourne was joined as a defendant. The only remedy claimed against the City of Melbourne was declaratory: damages were not sought. At the time of the hearing of the action the works at the rear of the house were completed. They had been pursued by the Wades in good faith in reliance of the validity of the IDO permit. The plaintiffs were the owners of the houses on either side of the Wades' house and the owners of other properties close by. Some of the plaintiffs had suffered a significant loss of amenity as a result of the alterations to the Wades' house. Others had sustained only minimal losses of amenity.
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[1985] VR 433
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