Proportionate Liability – Wheelahan v City of Casey & Ors

In the long running matter of Wheelahan v City of Casey & Ors, the Supreme Court of Victoria has recently upheld an application by the Victorian Environment Protection Authority. In the ruling, the Supreme Court has accepted submissions by the EPA, which is a defendant in the proceeding, that another defendant Peet should amend its counterclaim if it wishes to seek contribution from the EPA under the concept of proportionate liability. In summary, the Court has upheld the EPA’s submission that the EPA is entitled to know the case it must meet from an alleged concurrent wrongdoer through an amended pleading. The Court outlined the following principles with regards to proportionate liability pursuant to the Wrongs Act 1958:

“22 I accept that, from a procedural point of view, the effect of the pivotal provisions of pt IVAA are as follows:

  • Section 24AH provides that, for the purposes of pt IVAA, a concurrent wrongdoer in relation to a claim is a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.
  • Section 24AI provides that the liability of a concurrent wrongdoer who is a defendant in a proceeding is limited to the proportion of the claim which the court determines to be just having regard to the extent of the concurrent wrongdoer’s responsibility for the loss and damage suffered.
  • Section 24AJ provides that, despite anything to the contrary in pt IV of the Act, a defendant against whom judgment is given under pt IVAA as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim, and cannot be required to indemnify any such wrongdoer.”

A copy of the ruling can be read here.

Intensification of Use – update on Amendments to Planning Permits

I have previously posted on the issue of amendments to permits. I have recently come across the case of Groenan v Casey CC [2011] VCAT 1822, which contains a discussion regarding the issue of retrospective planning permit applications and intensification of use. Although the case relates to animal husbandry, the concepts discussed in the case are of wider application.

A retrospective planning permit application is one that is made when a “use” has commenced or has been intensified without the appropriate permission.

In this proceeding the Applicants were seeking to amend their planning permit to intensify the animal husbandry occurring on the site. The Applicants had a planning permit to keep 30 dogs on the subject site and were seeking to increase this to 50. The increase in the number of dogs also required building works.

Council refused the application on grounds which included the failure to provide adequate information to accompany the application. The Tribunal made the following finding on this point:

I consider that under normal circumstances the lack of information submitted with the application would be sufficient reason to disallow the application for amending the permit, particularly if the level of policy support for the use of dog breeding/boarding was not strong for this location. However, I note that Council has erected roadside signs stating that this area is identified as an intensive use area for dog breeding. It can be seen therefore that the area is already devoted very largely to dog breeding /boarding and this is likely to continue and expand in the future. Accordingly, I am not persuaded to disallow the application on the basis of a lack of information in this instance. [16]

In its reasons the Tribunal also considers the issues that arise with intensification of animal husbandry including, waste management, water management, noise and shelter. The Tribunal also discusses the Code of Practice for the Operation of Breeding and Rearing Establishments. Ultimately, the Tribunal finds that the intensification will not result in unacceptable outcomes and that the amendment to the planning permit is appropriate.

However, readers should note the warning that appears at the end of the Tribunal’s reasons with respect to the issue of retrospective planning permit applications.

I also want to make it clear to the landowners that it is noted that this is the second time the matter of dog breeding activity on this site has come before the Tribunal seeking retrospective approval for use and development that has already occurred and commenced. This is not appropriate and the landowners should take note that undertaking changes to the approved use and development without first seeking appropriate approvals from Council is unlawful. I strongly advise the landowners to ensure that they make the necessary enquiries with Council before they make any further changes to how their dog breeding business operates in the future. [28]

Be aware. You should always check carefully that you are complying with the conditions contained in a planning permit. If in doubt seek advice. Retrospective applications are inherently risky as they could result in a refusal or alternatively conditions that are costly to comply with. Further, Councils could also commence enforcement applications.