Construction Tuesday, 24 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Executive Summary (One Minute Read)
Dustday Investments Pty Ltd v Minister for Planning (VSC) - environment and planning - amendment to planning scheme to include building in heritage overlay - no error by panel - proceeding dismissed 
City of Albany v Cuscuna Nominees Pty Ltd (WASC) - planning and development - prosecution for failure to obtain planning approval - no case to answer - appeal dismissed 
Wormleaton v Thomas & Coffey Ltd (No 4) (NSWSC) - work injury damages - employer’s duty of care - severe crush injury - employer not liable 
Summaries With Link (Five Minute Read)
Dustday Investments Pty Ltd v Minister for Planning [2015] VSC 101
Supreme Court of Victoria
Garde J
Environment and planning - plaintiff sought permit under Planning and Environment Act 1987 (Vic) to demolish building it owned - delegate authorised Council to prepare amendment to planning scheme which included building in heritage overlay of scheme - plaintiff opposed amendment - panel recommended amendment be adopted - council resolved to adopt amendment - plaintiff sought declaration that panel’s recommendation and Council’s resolution were invalid - held: panel did not identify wrong issue or ask wrong question - panel did not make legal error by failing to take into account social or economic matters or condition and potential for conversion and adaptive reuse of building - proceeding dismissed.
City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91
Supreme Court of Western Australia
Chaney J
Planning and development - respondent charged with offence under s218(1)(a) Planning and Development Act 2005 (WA) for carrying out development without obtaining planning consent from council - Magistrate upheld respondent’s submission there was no case to answer - appellant sought to appeal decision - proper construction of approval - held: Magistrate did not err in finding respondent  had applied for planning consent for shopping centre development being carried out during  prosecution period - no error in analysis of departures in construction from approved plans - appeal dismissed.
Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260
Supreme Court of New South Wales
Campbell J
Work injury damages - employer’s duty of care - quantum of damages -  plaintiff claimed damages for severe crush injury suffered at work - two defendants admitted breach of duty of care - workers compensation nominal insurer, which was party instead of employer, disputed liablity - quantum of damages - held: particular risk which materialised was beyond scope of employer/employee relationship - even if there was breach by employer, it did not cause  worker’s injury - employer not liable - no contributory negligence by worker - damages assessed - judgment for worker against first defendant in sum of $2,286,832.00 - judgment for worker against second defendant in sum of  $2,286,832.00