Anderson v Stonnington City Council
[2019] VSC 453
•18 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2018 00604
| JOHN RAYMOND ANDERSON | First Plaintiff |
| DEMITRA ANDERSON | Second Plaintiff |
| v | |
| STONNINGTON CITY COUNCIL | Defendant |
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JUDGE: | Garde J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12 February, 28 May and 7 June 2019 |
DATE OF JUDGMENT: | 18 July 2019 |
CASE MAY BE CITED AS: | Anderson v Stonnington City Council |
MEDIUM NEUTRAL CITATION: | [2019] VSC 453 |
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PLANNING – Decision of the Victorian Civil and Administrative Tribunal – Heritage overlay control – Whether works under building permits issued before heritage overlay control introduced created an accrued right – Lawfulness of ongoing building works – Whether planning permit needed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Planning and Environment Act 1987 (Vic) s 6(3); Interpretation of Legislation Act 1984 (Vic) s 28(2)(e); Stonnington Planning Scheme cl 72.06 (formerly cl 61.05).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D Robinson | Direct brief |
| For the Defendant | Ms S Porritt with Ms F Hudgson | Maddocks |
HIS HONOUR:
Introduction
John and Demitra Anderson (‘the plaintiffs’) seek leave to appeal, and if leave is granted, appeal to this Court under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) from the decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The Tribunal found that works they undertook at 21 William Street, South Yarra (‘the subject land’) after 21 May 2015 required a planning permit under a site specific heritage overlay control (HO462). The overlay was introduced by Amendment C204 to the Stonnington Planning Scheme (‘the planning scheme’).[1]
[1]Anderson v Stonnington City Council [2018] VCAT 102 (‘Tribunal decision’).
In 2012, the plaintiffs purchased the subject land with the intention of renovating the existing two-storey villa as their residence. The subject land is and was at all relevant times zoned ‘General Residential 1’ under the planning scheme. The Stonnington City Council (‘the Council’) is the responsible authority for the planning scheme under the Planning and Environment Act 1987 (Vic) (‘PE Act’).
In late 2014, private building surveyors issued building permits under the Building Act 1993 (Vic) (‘Building Act’) for works on the subject land. At this time, there was no requirement for a planning permit for the works.
The building permits were:
(a) BS-U 1026/215142/10 dated 3 December 2014 authorising works on the front veranda (‘veranda permit’);
(b) BS-U 1026/215118/0 dated 10 November 2014 authorising works for a garage and pavilion at the front of the site (‘pavilion permit’); and
(c) BS-U 1165/20141384/1 dated 22 December 2014 authorising stage 1 works (‘stage 1 permit’) comprising partial demolition of the main residence, construction of ground floor works, and the first floor sub-frame.
On 21 May 2015, the heritage overlay control took effect. It introduced a requirement for a planning permit to be obtained for demolition, building and works on the subject land. By this time, the plaintiffs had completed all of the works under the veranda permit, a large portion of the works under the pavilion permit, and some works under the stage 1 permit.
On 18 July 2017, the plaintiffs were issued with a stage 2 building permit, authorising alterations and additions to the dwelling, including to the first floor rooms, roof and terrace. The plaintiffs undertook substantial works under this building permit.
The plaintiffs have not sought a planning permit for works under the heritage overlay control.
The Tribunal decision
The plaintiffs sought declarations by the Tribunal that the works authorised under the building permits prior to the introduction of the heritage overlay control could continue and be completed lawfully without a planning permit.[2] After a three day hearing, the Tribunal refused the application.
[2]PE Act ss 149A, 149B.
The Tribunal held that the plaintiffs had not established any accrued right under s 28(2)(e) of the Interpretation of Legislation Act 1984 (Vic) (‘Interpretation Act’) as:
(a)the substantive rights obtained through the grant of a planning permit are of a very different character from an opportunity afforded by the planning scheme, at a particular point of time, to undertake a development without a planning permit;[3]
(b)the absence of an express requirement for a planning permit did not mean that the planning scheme properly construed, conferred a general ‘right to develop’;[4]
(c)the position that planning scheme requirements are intended to operate prospectively from the date of any amendment to the scheme is consistent with the common use of traditional provisions to prevent outcomes that would be considered unfair or unreasonable;[5]
(d)while the PE Act and the planning scheme recognised existing use rights,[6] there was no similar concept of existing development rights in the regulatory framework;[7]
(e)planning scheme amendments of a protective character such as heritage overlay controls were often introduced to operate with universal effect upon introduction, to create a planning permit requirement for demolition or construction in order to require local heritage matters to be properly considered;[8] and
(f)the common law did not take the position any further than s 28(2)(e) of the Interpretation Act.[9]
[3]Tribunal decision [36].
[4]Ibid [47].
[5]Ibid.
[6]PE Act s 6(3); planning scheme cl 63.
[7]Tribunal decision [48].
[8]Ibid [53].
[9]Ibid [57], discussing Maxwell v Murphy (1957) 96 CLR 261 (Dixon CJ).
As to whether the building permits created an accrued right, the Tribunal found that:
(a) the building permits did not of themselves create a right to lawfully continue and complete the works without the necessity for planning permission. A building permit did not create accrued rights for planning purposes;[10]
(b) the plaintiffs did not acquire an accrued right to continue with and complete the works by reason of having substantially commenced the works prior to the introduction of the heritage overlay control. No relevant ‘right’ existed for the purposes of s 28(2)(e) of the Interpretation Act;[11] and
(c) the plaintiffs did not have the benefit of any exemption or immunity from the regulatory change that occurred when the heritage overlay control took effect.[12]
[10]Ibid [72].
[11]Ibid.
[12]Ibid.
The Tribunal concluded that a previously existing exemption or immunity from regulatory control in a field where there was previously no control, did not create a right to have that exemption or immunity continue indefinitely. There was a gap in the field that had previously left the plaintiffs open to develop the subject land free of local heritage controls.[13] This was no longer the case. They now required a planning permit to proceed lawfully.
[13]Ibid [67].
Statutory framework
Section 6(3) of the PE Act states:
(3) … nothing in any planning scheme or amendment shall—
(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or
(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e) require the removal or alteration of any lawfully constructed building or works.
Section 28(2) of the Interpretation Act states:
(2) Where a subordinate instrument or a provision of a subordinate instrument—
(a) is … amended; …
…
the … amendment … of that subordinate instrument or provision shall not, unless the contrary intention expressly appears—
…
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;
Clause 61.05 of the planning scheme provided at the relevant time:
Land may be used or developed only in accordance with this planning scheme.
Land must not be developed unless the land as developed can be used in accordance with this planning scheme.
If this planning scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.[14]
[14]The content of this clause has since been moved to cl 72.06.
Leave to appeal
The question of whether leave to appeal should be granted is determined according to the test laid down in Secretary to the Department of Premier and Cabinet v Hulls (‘Hulls’).[15] The test may be summarised:
A pivotal requirement is that an applicant must identify a question of law for which there is a real or significant argument to be put that error exists. The Court will also have regard to the justice of the particular case, and whether the applicant has identified a question of law that is of general or public importance. The applicant must show that there is sufficient doubt attendant the question of law to justify the grant of leave.[16]
[15](1999) 3 VR 331 (‘Hulls’).
[16]Zumpano v Banyule City Council [2016] VSC 420, [10], citing Hulls (n 15) 335–337 [10], [11], [16].
Question of law
Before the Tribunal, the plaintiffs changed the legal basis for their submissions withdrawing a number of arguments previously advanced.[17] It is unnecessary to deal with the questions, grounds and arguments no longer pursued.
[17]Tribunal decision [17]–[18].
In this Court, the plaintiffs originally relied on numerous proposed questions and grounds of appeal, and assisted the Court with a number of written submissions prepared by Counsel and by the second plaintiff. The questions were consolidated during the court hearing to a single question of law viz whether upon the introduction of the heritage overlay control the plaintiffs had acquired an accrued right to complete the works without the need for planning permission under the new control. In addition, there were interlocutory disputes including an appeal from the order of Judicial Registrar Clayton dated 28 November 2018, which were not argued by the parties and which it is not necessary to consider further.
Previous decisions
The Tribunal’s decision was essentially based on the legal principles stated in previous decisions of the Court and the Tribunal. It is convenient to commence by summarising four key decisions.
Robertson
In Robertson v City of Nunawading (‘Robertson’), the Full Court considered the effect of a newly enacted statutory provision requiring an open space contribution where land was to be subdivided for industrial or commercial purposes.[18] The new provision took effect after the subdivider had submitted a notice of intention to subdivide and plans of subdivision to the Council for certification. Previously an open space contribution could only be required for a residential subdivision.
[18][1973] VR 819 (Winneke CJ, Gowans and Starke JJ) (‘Robertson’).
The Full Court held that the question whether the new provision had any operation in respect of something which had come into existence before its enactment was basically a matter of the intention of the legislature in enacting the new provision and the interpretation of the enabling statute.[19] While a statute barring a legal remedy after a particular period might be an accrued immunity and therefore a right, there was no right to exemption or immunity from legislative action where there was a gap in the field covered by the legislation which left the person free of statutory control in that area.[20] The taking of legislative action in a field where previously there was none could not be treated as an impairment of a right for the purpose of the principle.[21]
[19]Ibid 822.
[20]Ibid 824 (citations omitted).
[21]Ibid.
Mrocki (No 2)
Robertson was followed and applied by the Tribunal in Mrocki v Port Phillip City Council (No 2) (‘Mrocki (No 2)’).[22] This decision was concerned with the interrelationship between building and planning controls. Following the issue of a building permit for demolition and the commencement of demolition, an interim heritage control was imposed. The Tribunal held that while the issue of a building permit created a right to demolish the dwelling on the land under the relevant planning scheme, this did not result in the acquisition of a ‘right’ for the purposes of the planning scheme. It was self-evident having regard to the express words of s 28(2)(e) of the Interpretation Act that an accrued right to be protected must arise under the same subordinate instrument. The issue of a building permit did not of itself amount to the accrual of a right under a planning scheme even an inchoate or contingent right.[23]
[22][2008] VCAT 2304 (‘Mrocki (No 2)’).
[23]Ibid [21]–[22], [29], referring to Esber v Commonwealth (1992) 174 CLR 430, 440; Simpson v Bass Coast Shire Council [2007] VCAT 165.
Printz
Mrocki (No 2) was followed by the Tribunal in Glenelg Shire Council v Printz Pty Ltd (‘Printz’).[24] In this case, building work to construct a dwelling had commenced at a time when no planning permit was required. However, before the work was completed, a planning scheme amendment made a permit necessary. The Tribunal held that the situation fell squarely within the principles stated in Robertson and Mrocki (No 2). No right had been acquired under the planning scheme. Rather, advantage had been taken of a gap in the field covered by the planning scheme that left the landowner free of statutory control in this area.[25] No specific right had been acquired by landowners as the opportunity was open to everyone. While a right would accrue if a permit was granted under a planning scheme, no right accrued where a person took advantage of an opportunity to undertake a use or development that did not require a permit.[26]
[24][2009] VCAT 2477 (‘Printz’).
[25]Ibid [60].
[26]Ibid [67]–[68].
Simpson
In Simpson v Bass Coast Shire Council (‘Simpson’), Justice Morris P held that planning permits created substantive rights.[27] Changes to planning schemes were presumed not to operate retrospectively.[28] Justice Morris P declined to follow the reasons of Stephen J in Eaton & Sons Pty Ltd v Warringah Shire Council,[29] where a consent granted under a planning scheme was held to be a consent to the world at large in relation to the land. Such a consent did not confer rights that were acquired by, or accrued to an individual. In Simpson, Justice Morris P found that inchoate or contingent planning rights such as the right to be issued a permit could amount to accrued rights for the purposes of s 28(2)(e).[30] Likewise, a qualified, limited or transitory right was nonetheless a right capable of protection.[31]
[27][2007] VCAT 165 (‘Simpson’).
[28]Ibid [17]–[18], applying Lakkis v City of Wyndham [2001] VCAT 863 (Macnamara DP); Maxwell v Murphy (1957) 96 CLR 261, referring to Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270, 293 [32] (Stephen J); Oppe v Shire of Lillydale [1980] VR 387, 392 (Anderson J); Castellano v City of Port Melbourne (1983) 57 LGRA 231, 240 (Beach J); Ungar v City of Malvern [1979] VR 259, 266; Day v Pinglen Pty Ltd (1981) 148 CLR 289, 297.
[29] (1972) 129 CLR 270, 293.
[30]Simpson (n 27) [24]; see Transport Accident Commission v Lanson (2001) 3 VR 250, 275 [61] (Phillips JA, Winneke ACJ and Charles JA agreeing).
[31]See Mathieson v Burton (1971) 124 CLR 1, 23 (Gibbs J).
In the years that have followed, the Tribunal has consistently held that planning permits do create accrued rights for the purposes of s 28(2)(e) of the Interpretation Act.[32]
The standing of Robertson
[32]See Mrocki (No.2) (n 22) [29]; Printz (n 24) [62]; Brimbank City Council v LS Planning Pty Ltd [2006] VCAT 2218 [9]; Gembrook Pines Pty Ltd v Glen Eira City Council [2016] VCAT 537 [20]–[21]; Alkero Development Pty Ltd v Stonnington City Council [2018] VCAT 1120 [43]–[44]; Jezmac Pty Ltd v Glen Eira City Council [2018] VCAT 2053 [14].
The legal principles stated by the Full Court in Robertson were applied by the Full Court in the well-known case of Ungar v City of Malvern (‘Ungar’).[33] The principle that a right is not merely a ‘power to take advantage of an enactment’ was subsequently accepted by the High Court in Esber v Commonwealth (‘Esber’).[34] In The Sisters Wind Farm Pty Ltd v Moyne Shire Council, Emerton J applied the principles in Ungar and Robertson in upholding a decision of the Tribunal.[35] The New South Wales Court of Appeal followed Robertson and Ungar in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources.[36] The Queensland Court of Appeal did likewise in Haber v Chief Executive, Department of Main Roads.[37]
[33][1979] VR 259, 262, 266 (Young CJ, Menhennitt and Crockett JJ) (‘Ungar’).
[34] (1992) 174 CLR 430, 440 (Mason CJ, Deane, Toohey and Gaudron JJ), 447 (Brennan J) (‘Esber’).
[35](2012) 193 LGERA 126.
[36](2004) 137 LGERA 178, [21]–[22] (Giles JA, Sheller JA agreeing at [1], Santow JA agreeing at [46]).
[37][2005] QCA 123, [24] (Keane JA, Jerrard JA agreeing at [1], Fryberg J agreeing at [38]).
The principles set out in Robertson have been applied by the Victorian Court of Appeal in contexts other than planning law. In Shire of Corangamite v Transport Accident Commission, the Court of Appeal adopted the passage in Robertson which said:
There cannot, in any relevant sense, or perhaps in any sense, be a 'right' to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purpose of the principle.[38]
[38][1999] 3 VR 304 (Ormiston, Charles and Buchanan JJA), citing Robertson (n 18) 824.
In Transport Accident Commission v Lanson, the Court of Appeal referred to the same passage and said:
Robertson, however, was a very different case. In Robertson, new planning restrictions had come into force and, in reliance upon his application for permission to subdivide which had been submitted before the new restrictions came into force, the landowner was contending that he should be entitled to have his application considered free of the new restrictions. That argument was rejected and it was in that context that it was said by the Full Court that there cannot be a ‘right’, deserving of protection, simply to exemption or immunity from legislative action. Indeed the landowner was seeking not to assert a ‘right’ as such, but merely a power, and a continuing power, to take advantage of the law as it used to be notwithstanding the introduction of the altered restrictions; and such a ‘right’ or power is not a ‘right acquired or accrued’ which attracts the common law presumption against retrospectivity or s.14(2) of the [Interpretation Act]. There are many cases to that effect …
In contrast it is now established that something which is more truly a right in existence may be treated as a ‘right acquired or accrued’ for such purposes, even though the right is still ‘inchoate or contingent’… There are difficulties in the recognition of such ‘inchoate or contingent rights’…[39]
[39](2001) 3 VR 250, 274–275 [60]–[61] (Phillips JA, Winneke ACJ agreeing at 251 [1], Charles JA agreeing at 278 [69]) (citations omitted).
Recently, the Western Australian Court of Appeal referred to Robertson and Esber and said:
Generally, a person seeking planning approval from a planning authority does not have, or claim, an existing right to a particular planning decision. Rather, the person seeks a decision in their favour which, if and once made in their favour, gives the person, at that point, an accrued right. Ordinarily, a person seeking planning permission is only entitled to a decision based on the planning law as it stands as at the date of the decision.
Consistently with Esber, an accrued right may nevertheless arise once an application for review by an administrative tribunal is instituted after planning consent is refused by the planning authority. However, it remains necessary to consider the statutory scheme and the nature of the right to review which is said to be affected by the repeal.[40]
[40]Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213, [99]–[100] (Buss P, Murphy and Mitchell JJA) (citations omitted).
The legal principles set out in Robertson as to the construction of s28(2)(e) of the Interpretation Act are now entrenched in the law and are of good standing. It was appropriate for the Tribunal to apply these principles in the circumstances of this case.
Principles of statutory construction
The principles of statutory construction are well established and apply to statutory instruments such as planning schemes as well as statutes. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ said:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[41]
[41](1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
The plurality of the High Court emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[42]
[42](2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[43]
[43](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
These principles are consistent with s 35 of the Interpretation Act, which requires that when interpreting a subordinate instrument, a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object.
Parties’ submissions
The plaintiffs made a series of submissions which they contended showed that the Tribunal had erred as to the construction of s 28(2)(e) of the Interpretation Act or the application of Robertson to the present case. The submissions may be summarised:
(a)the Tribunal asked whether the plaintiffs had established a ‘right’. This was the wrong question. The Tribunal should have asked whether there was an ‘accrued right’;
(b)the effect of the Tribunal’s construction of the planning scheme was that ‘unqualified rights’ did not count whereas ‘qualified rights’ did;
(c)the Tribunal’s decision in Mrocki (No 2) and Printz have the anomalous effect identified in Printz that the qualified right created by a planning permit is protected by s 28(2)(e) of the Interpretation Act while the unqualified right to develop ‘as of right’ is not;
(d)clause 61.05 of the planning scheme positively articulated the plaintiffs’ right to develop the subject land;
(e)the Tribunal treated the distinction between a right and an absence of regulation as one of form;[44]
(f)the Tribunal narrowed the distinction in Robertson between a right and a gap to vanishing point;
(g)the concept of ‘accrued right’ does not call for a narrow conception of a right; [45]
(h)the Tribunal should have held that there was an accrued right;
(i)the Tribunal’s difficulty in identifying the scope of the plaintiffs’ right contributed to its conclusion that there was no right;
(j)recognition of an existing development right was consistent with the intention of the subordinate instrument; and
(k)it was wrong for the Tribunal to suggest that an accrued right could be affected by the introduction of a permit requirement.
[44]Citing Robertson (n 18).
[45]Citing Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139; Mathieson v Burton (1971) 124 CLR 1; Chang v Laidley Shire Council (2007) 234 CLR 1.
The Council contested these submissions and submitted that the Tribunal decision was correctly determined.
Did the Tribunal ask the correct question?
The ultimate question to be decided by the Tribunal when determining whether s 28(2)(e) of the Interpretation Act is engaged in the context of a planning scheme amendment is whether the amendment affects a right accrued under the planning scheme.[46] One approach is to divide the ultimate question into subsidiary questions, all of which must be answered in favour of the person claiming the benefit of s 28(2)(e) of the Interpretation Act. If this is done, the following questions arise:
[46]See Printz (n 24) [48], [58], [59], [78(b)].
(a) Was there a right conferred by the planning scheme?
(b) Has a right ‘accrued’ within the meaning of the planning scheme?
(c) What is the scope of the right claimed?
(d) Does the amended planning scheme affect the right?
In the present case, the Tribunal addressed the first subsidiary question.[47] In Esber, the High Court said the first step in a consideration of the provision, is to identify the ‘right’ which the appellant says was acquired or accrued under the repealed Act.[48]
[47]Tribunal decision [31]–[32].
[48]Esber (n 35) 439 (Mason CJ, Deane, Toohey and Gaudron JJ).
The approach adopted by the Tribunal addressing the first question was the subject of criticism by the plaintiffs. In my view, the criticism is unjustified. It does not matter whether the Tribunal approaches the ultimate question to be asked in a holistic manner as occurred in Printz, or whether the ultimate question is divided into subsidiary questions which, taken together, amount to the ultimate question. Exactly the same result will obtain. The consideration of the ultimate question through subsidiary questions does not mean that facts subsequent to the introduction of the amendment are disregarded. There is no error of law in taking one approach or the other.
I now turn to review the scheme to determine whether the plaintiffs had a right to develop the subject land prior to the introduction of the heritage overlay control.
Did the Tribunal misconstrue the planning scheme?
The issue whether a right is conferred by the planning scheme is determined by the construction of the scheme. The planning scheme has a standard format similar to that described by the Court of Appeal in Stanley Rural Community Inc v Stanley Pastoral Pty Ltd where the Court of Appeal said:
The planning scheme adopts the standard format provided for in pt 1A of the PE Act by way of the Victoria Planning Provisions. The planning scheme first states State and Local Planning Policy. It then regulates land use and development pursuant to zone controls. It next provides for overlay controls which further regulate development within specified areas by reference to particular planning considerations. It further regulates specific aspects of land use by particular provisions which deal with matters of incidental sensitivity. It lastly sets out a series of general definitions and other provisions facilitating the operation of the scheme.[49]
[49](2017) 54 VR 676, 691 [59].
The General Residential Zone (‘GRZ’) under the planning scheme is a standard residential zone under the Victoria Planning Provisions.[50] Clause 32.08 is the applicable clause, and contains a table of uses. Section 1 uses do not require a planning permit, but may be subject to conditions or qualifications. Section 2 uses require a planning permit, while Section 3 uses are prohibited. Although persons familiar with planning schemes sometimes describe Section 1 uses as being uses ‘as of right’, it is correct, as the Tribunal pointed out, that this is not a phrase that the planning scheme actually uses.[51]
[50]The Victoria Planning Provisions are standard State-wide planning provisions for use in planning schemes in Victoria and are authorised in pt 1A of the PE Act.
[51]Tribunal decision [42].
The purposes of the GRZ are set out in cl 32.08 and relevantly at the time included:
…
To encourage development that respects the neighbourhood character of the area.
…
To provide diversity of housing types and moderate housing growth in locations offering good access to services and transport.
…
The land use of ‘Dwelling (other than Bed and breakfast)’ is found in the ‘Section 1 – Permit not required’ section of the table of uses in cl 32.08–1. The term ‘Dwelling’ is of wide scope extending generally to self–contained residences with a kitchen sink, food preparation facilities, a bath or shower, and a closet pan and wash basin.[52] Although there are some exceptions, in general, any residence located in a GRZ may lawfully be used for residential purposes provided that it meets the definition of ‘Dwelling’.
[52]Planning scheme cl 73.03.
Putting to one side multi-unit developments, and some specific uses of a residential character which require a planning permit, in the GRZ of a Melbourne municipality, there are typically countless dwellings in which residential use is permissible without the need for a planning permit. The plaintiffs’ position before the introduction of the heritage overlay control was identical to that of members of the public as a whole, who own or reside in residential zones.
Does the planning scheme confer a right?
‘Use’ under the planning scheme
In planning law, there is a fundamental distinction between ‘use’ and ‘development’. Both are defined in s 3(1) of the PE Act. In Nancy Shetland Pty Ltd v Melbourne Metropolitan Board of Works, the High Court referred to the definitions of ‘use’ and ‘development’ in previous legislation, and said that when read together, it was apparent that development and subdivision did not fall within the statutory definition of ‘use’.[53] Neither development nor subdivision by itself constituted use.[54] The decision was followed and applied in the context of the current definitions of ‘use’ and ‘development’ in s 3(1) of the PE Act in Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council.[55]
[53](1974) 34 LGRA 151, 153 (Menzies, Gibbs and Mason JJ).
[54]Ibid.
[55](2001) 117 LGERA 43, [24]–[26] (Balmford J).
The table in cl 32.08-1 of the planning scheme relates to land use rather than development in the GRZ. There are a number of provisions that impose conditions, standards or requirements on residential development in the GRZ, which include height controls, development controls and minimum allotment size limits. Apart from a number of conditions, standards and requirements which only apply in specified circumstances, there is nothing in cl 32.08 which restricts residential development in the GRZ.
‘Development’ under the planning scheme
Clause 61.05 of the planning scheme has effect to permit development for residential use in the GRZ (and other residential zones) provided all requirements of the planning scheme are met. Aside from cl 61.05 permitting development, there is no provision, expression or language in the GRZ of the planning scheme that confers a right to develop land for a residence.
Although regulating development, the scheme is silent, and the owner or developer can lawfully proceed to build (or rebuild for detached residential use), again subject to meeting various conditions, standards and requirements as applicable.[56]
[56]Tribunal decision [43].
While a building permit is needed for development, this requirement arises under the Building Act and is not a requirement imposed by the planning scheme. It follows that a building permit is not an accrued right under a planning scheme for the purposes of s 28(2)(e).
Prior to the introduction of the heritage overlay control over the subject land, the position under the planning scheme was that the plaintiffs could lawfully build a new dwelling, or modify an existing dwelling on the subject land as they did. Residential properties generally throughout the GRZ of municipalities in Victoria were in exactly the same position.
Conclusion
The result is that there is a gap in the sense used in Robertson rather than the conferral of any specific right to develop such as may be afforded by a planning permit. The plaintiff’s contention that they had ‘an unqualified right’ to develop may be true in the sense that they were the owners of the subject land and as a matter of property law could build on their land. However, as the High Court made plain in Chang v Laidley Shire Council (‘Chang’) the existence of a ‘right’ stands to be determined by construction of the subordinate instrument and not solely by reference to property rights or jurisprudential analysis.[57]
[57](2007) 234 CLR 1, 34 [117] (‘Chang’).
Under the planning scheme, the plaintiffs could simply proceed with their development as no permit or permission was required. Development or redevelopment of a detached house on residential land was not a subject matter which the planning scheme regulated or had ever sought to regulate. It was not a case of an ‘unqualified right’, or of a ‘specific right’, but a case where the plaintiffs had the opportunity and were at liberty to proceed free of statutory control over residential development of the type they intended.
I reject the plaintiffs’ submission that the Tribunal’s construction of the planning scheme was in error.
Is there an anomalous outcome?
The plaintiffs submitted that the Tribunal’s decision in Mrocki (No 2) and Printz have the anomalous effect identified in Printz, that the qualified right created by a planning permit is protected by s 28(2)(e) of the Interpretation Act while the unqualified right to develop ‘as–of–right’ is not.
In Printz, the Tribunal discussed whether the conclusion that a right arises under a planning permit but no right arises if a person takes advantage of an opportunity to undertake a use or development that does not require a permit creates a potential disadvantage for so called ‘as–of–right’ use and development.[58] The Tribunal held that although it might be thought that planning controls which permit use and development as–of–right would be more advantageous to a landowner than those which require a permit, analysis of the law relating to as–of–right use and development demonstrated that this is not the case.[59]
[58]Printz (n 24) [67] (Gibson DP).
[59]Ibid [68], citing Mrocki v Port Phillip City Council (No.1) [2007] VCAT 1719; Mrocki (No.2) (n 22).
As to the apparent disparity, the Tribunal noted in Printz that subject to the protection offered to existing users by s 6(3) of the PE Act, a right to use and develop land without a permit can be removed at any time by an amendment to the planning scheme.[60] By contrast, where a planning permit for use or development has been granted, the use and development is unaffected by an amendment to a planning scheme either as to commencement or completion.[61]
[60]Ibid [69].
[61]Ibid; see also PE Act s 68.
There is good reason why the grant of a permit should give rise to a right whereas lawful but unpermitted development under a planning scheme may not. Under the PE Act, a comprehensive process is required before a permit can be granted. The process includes an application in conformity with the PE Act and regulations, the giving of notice of the application as required, consideration of any objections and input from referral authorities, leading to a decision by the responsible authority whether to grant a permit, including the conditions that are to be imposed and the plans that are to be approved.[62] It is only when this process is complete, that a permit can be granted. If there is an application to the Tribunal for review, it is only following a Tribunal decision and order that a permit can be granted by the responsible authority.[63] It is the grant of the permit which crystallises the right.
[62]See PE Act pt 4 – Permits.
[63]Ibid.
The provisions and procedures applicable under the PE Act for the grant of permits have no application to the lawful use and development of land where it is permitted without a permit. In the latter situation, there is no application or process, and nothing that might operate to crystallise the coming into existence of a right. There is nothing on which, or to which s 28(2)(e) of the Interpretation Act might attach. There is no contrary intention in the planning scheme.
Conclusion
I reject the argument that there is an anomaly or unacceptable disparity. The distinction between the situation where a permit is granted, and a situation where none is needed is stark. It is not surprising that s 28(2)(e) operates differently in each case. There is no anomaly or inconsistency in recognising that a permit confers an accrued right, but on the other hand that there is no accrued right if development can proceed under the planning scheme without any process at all.
Does cl 61.05 of the planning scheme confer a right?
The plaintiffs advanced the argument that cl 61.05 of the planning scheme positively articulates a right to develop the land if two conditions are satisfied. The two conditions are that:
(a) the planning scheme must allow a particular use of land for which the land is to be developed; and
(b) all requirements of the scheme are met.
The Tribunal held that while cl 61.05 attempted to tie together the concepts of use and development, it fell well short of providing any right to develop.[64] The absence of a requirement to obtain a planning permit for use, or for the authorisation of a use, did not confer a right to develop.[65] Clause 61.05 was intended to require all provisions of the planning scheme to be met as they exist from time to time, and prospectively from the date of any amendment to the scheme.[66]
[64]Tribunal decision [46].
[65]Ibid.
[66]Ibid.
Conclusion
In my view, the Tribunal was correct when it held that cl 61.05 of the planning scheme does not confer a right. Rather, it is an ambulatory compliance provision intended to make it clear that where a use is permitted, all requirements as to development for the use will have to be met. The application of cl 61.05 is efficacious both before and after the introduction of the heritage overlay control. After the heritage overlay control became effective, cl 61.05 operated to require compliance with all applicable scheme requirements including the heritage overlay control.
I reject the plaintiffs’ argument. Clause 61.05 does not confer a right as required by s 28(2)(e) of the Interpretation Act, and does not seek to articulate a right.
Did the Tribunal treat the distinction between a right and an absence of regulation as one of form?
The plaintiffs submitted that the Full Court in Robertson spoke of a field that was previously unregulated. They said that this meant that there were no provisions at all in relation to the subject matter of the purported right in Robertson. Only in an artificial sense of what was meant by the absence of regulation could it be said that the planning scheme did not regulate the particular field, or that the legislature had previously taken no action in that field. The ultimate effect of the Tribunal’s classification of what constitutes a right, it was said, was that most unqualified rights would not count, purely by accident of drafting.
I reject this analysis. In Robertson, the legislature had entered the field in the sense that it had made provision for a public open space requirement but only where the subdivision was for residential purposes. Commercial and industrial subdivision could proceed without the imposition of a public open space requirement. The situation changed when the amending legislation was passed imposing a public open space requirement on all three types of subdivision.[67]
[67]Robertson (n 18) 821–823.
There is a very real distinction between a right properly described and identified in a subordinate instrument for the purposes of s 28(2)(e) of the Interpretation Act, and a gap in the field. Here, there is a gap in the field where the planning scheme makes no provision at all as to the subject matter of the purported right.
Conclusion
The planning scheme does regulate the use and many types of development of land. Under the planning scheme, the development of land for residential use in a GRZ was without regard for heritage and many other controls. The gap was entered in the case of the subject land by the planning scheme amendment which introduced the heritage overlay control. When this took place, the plaintiffs had no relevant right under the planning scheme that was saved or protected by s 28(2)(e) of the Interpretation Act.
I reject the plaintiffs’ argument. The Tribunal did not treat the distinction between a right and an absence of regulation as one of form. It correctly identified the gap which was later subject to the introduction of the planning scheme amendment.
Did the Tribunal narrow the distinction between a right and a gap to vanishing point?
A further argument put by the plaintiffs was that the Tribunal narrowed the distinction between a right and a gap to vanishing point. It was said that the Tribunal had identified the specific restriction contained in the amendment which affected the right, as the absence of a restriction in the specific form of a permit relating to local heritage, or as arising under a heritage overlay control such as HO462.
I reject this argument. The Tribunal held that the development proposal by the plaintiffs was not one which required a permit. It was common ground that at the time of the introduction of the heritage overlay control there was no requirement for a planning permit for the works being undertaken by the plaintiffs.[68] Local heritage was not a matter that was regulated under the planning scheme in relation to the subject land at all.[69]
[68]Tribunal decision [64].
[69]Ibid [66].
It is plain that the extent of the regulatory gap in the field of regulation was much broader than local heritage alone. It extended to a wide variety of subject matters of which local heritage was just one. The Tribunal was not purporting to say that the regulatory gap was confined to the single subject matter of local heritage although it did include that subject matter. The previous exemption or immunity from regulatory control under the planning scheme which included freedom from local heritage control was affected when the heritage overlay control was introduced. Relevantly, the previous freedom from local heritage protection and regulation ended with the new control.[70]
[70]Ibid [67].
Did the Tribunal adopt a narrow conception of ‘right’?
The plaintiffs submitted that the Tribunal’s approach negated the principle that the concept of accrued right did not call for a narrow conception of right. For this purpose, the plaintiffs sought to rely on a trilogy of High Court decisions.
The first was Carr v Finance Corporation of Australia (No 2) (‘Carr’) where the plurality of the High Court said:
The common law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right. If it were otherwise, the essential justice of the rule would be eroded.[71]
[71](1982) 150 CLR 139, 151 (Mason, Murphy and Wilson JJ) (‘Carr’).
In Carr, the appellant conceded that a mortgagee’s power of sale under a statutory provision was an accrued right. The Court observed that this concession was correctly made.[72] The issue was whether the requirements for notice and lapse of time imposed by amending legislation were procedural in character, or whether they affected substantive rights. The Court held that the requirements imposed on the power of sale affected substantive rights.[73]
[72]Ibid.
[73]Ibid 148–9, 152.
The second was Mathieson v Burton (‘Mathieson’) where the High Court said:
We are not engaged in an exercise in analytical jurisprudence, or with the classification, experienced in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfield. It was said that s 83A(1) created immunities not rights. But I fail to see why an immunity, or exemption from legal consequences, should not be called a right or privilege once it has taken effect and is not merely inchoate.[74]
[74](1971) 124 CLR 1, 12–13 (Windeyer J) (‘Mathieson’).
In Mathieson, the Court was concerned with a statutory provision that appeared to confer on the children or spouse of a lessee before the grant of probate or letters of administration a like right to continue in possession of the premises as the deceased lessee would have had if he had not died. The Court held that the provision did confer a right to remain in possession.[75]
[75]Ibid 7 (Barwick CJ, McTiernan J agreeing at 7, Windeyer J agreeing at 16, Gibbs J agreeing at 26).
The third was Chang where three members of the High Court said:
Terms like ‘right’, ‘interest’, ‘title’, ‘power’ or ‘privilege’ when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used ‘solely in any technical sense derived exclusively from property law or analytical jurisprudence.’[76]
[76]Chang (n 58) 34 [117] (citations omitted).
In Chang, Kirby J highlighted the need for the entirety of the legislation and the history of its adoption to be understood observing that no narrow view should be taken to the protection of entitlements accruing under earlier legislation.[77] The presumption against retrospective abolition or qualification of existing rights has not traditionally been given a narrow application.[78]
[77]Ibid 10 [19].
[78]Ibid 15–17 [38]–[46].
In Chang, a statutory right to compensation in the event that an application was refused under a planning scheme was repealed by later legislation.[79] Three months after the new legislation had commenced, a development application was submitted, and refused by the council. The Court held that the council was entitled to refuse the development application without payment of compensation. There was no accrued right to compensation as no valid development application had been made before the repeal of the statutory right to compensation.
[79]Ibid.
Conclusion
None of these decisions offer any real assistance to the plaintiffs. Carr and Mathieson were both decided in the context of legislation which clearly conferred rights, and stand for the principle that the extent or scope of a right once shown to exist is not to be narrowly construed.
The principle enunciated in Chang that terminology should be construed not only by reference to property law rights but by reference to the entirety of the statute (or in this case the planning scheme), and having regard to the history of its adoption was applied by the Tribunal in the present case. It was precisely because of its analysis and review of the planning scheme, and its history, and the introduction of the heritage overlay control that the Tribunal came to the conclusion that it did. The Tribunal did not take a narrow view of the scope of a right conferred by the planning scheme. Rather, it held that no right was identified or conferred by the planning scheme.
I reject the plaintiffs’ submission. The Tribunal did not adopt a narrow conception of right. It held that no right existed at all.
Is there an accrued right?
The plaintiffs also submitted that the question whether a power or entitlement can properly be described as a right is interrelated with the question of whether such a right has accrued. It was submitted that only when a specific entitlement has actually accrued to an individual that it can be said that a right has crystallised. A mere hope or expectation that a right will be created is not sufficient.[80]
[80]See Starey v Graham [1899] 1 QB 406, 411; Director of Public Works v Ho Pa Sang [1961] AC 901; Simpson (n 27) [20] (Morris P).
It was then submitted that the Tribunal had failed to appreciate that the question whether a right could be identified in the present case was inextricably connected to a consideration of whether it had accrued.[81] It was said that almost any accrued right will derive from what was at first a mere opportunity provided under legislation. Reference was made to Abbott v Minister for Lands, where the Privy Council held that the existence of a supposed right for one or more members of the community to take advantage of an enactment, without the need for any act to be done to avail the person of the right, could not properly be deemed to be a ‘right accrued’ within the meaning of the enactment.[82]
[81]See Abbott v Minister for Lands [1895] AC 425, 431.
[82]Ibid.
The plaintiffs highlighted the fact that they had commenced works on the subject land for a given form of development, and had acted in exercise of what they claimed was their right.[83] They submitted that the real question was whether a mere power or general opportunity had accrued as a specific crystallised right by the happening of an event or act amounting to taking advantage of the opportunity offered. The plaintiffs relied on a number of authorities which I will mention below.
[83]See Heston and Isleworth Urban District Council v Grout [1897] 2 Ch 306, 309-310 (North J).
In McDonald v Commissioner of Business Franchises, Fullagar J observed that there was no accrued right until after the power in question had been exercised.[84] In that case, the relevant power was a power to make an assessment of levy in relation to a tobacco wholesaler, but was not exercised by the Commissioner until the statute imposing the levy was amended to exclude tobacco wholesalers.[85] Ashley J agreed holding that if the Commissioner had made an assessment before the commencement of the amending Act, the Commissioner would have had a right to payment of the assessment.[86] This had not occurred.
[84][1993] 2 VR 632, 638.
[85]Ibid.
[86]Ibid 659.
In Adelaide Brighton Cement Ltd v Victorian Rail Track (‘Adelaide Brighton Cement’), the Court of Appeal accepted an analysis of the cases which identified four categories of accrued right.[87] They were:
(a)where a right of an individual to take advantage of an existing statute before amendment or repeal did not survive in circumstances where no acts had been done towards availing the individual of the right;
(b)where a fully formed right existed, but had not been exercised as at the date of repeal;
(c)where facts had occurred giving rise to a cause of action, but it was necessary to commence court proceedings to enforce that cause of action; and
(d)where the facts giving rise to the cause of action had not occurred prior to the repeal but occurred subsequently to it.[88]
[87][2007] VSCA 10 (‘Adelaide Brighton Cement’).
[88]Ibid [42]–[49] (citations omitted).
In Resort Management Services Ltd v Noosa Shire Council, Fryberg J observed that a statutory right available to the public in general is not likely to be considered an accrued right unless the claimant has taken appropriate steps, or some event had happened to enable him or her to take advantage of the right by the date of repeal. By that means, a person’s right became specific rather than general.[89] The saving of accrued rights referred to specific rights rather than general rights.[90]
[89](1996) 92 LGERA 387, 396.
[90]Ibid (Fryberg J, McPherson JA agreeing at 388, Moynihan J agreeing at 391).
In Australand Corporation (Qld) Pty Ltd v Johnson, Jerrard JA accepted the description of a vested right as one that exists and produces effects.[91] A right which could have been exercised, but was not, and which is no longer available under the law, is not a vested right.[92]
[91][2008] 1 Qd R 203, 227.
[92]Ibid, adopting a passage from Attorney-General (Quebec) v Expropriation Tribunal [1986] 1 SCR 732, 742 (Chouinard J).
Jerrard JA also observed that the decision of the Victorian Court of Appeal in Adelaide Brighton Cement and another decision which attempted to describe categories of rights were valuable contributions, but it was easier to identify rights which did not survive repeal than to classify rights which did.[93] In the same decision, Keane JA emphasised the need for a clear understanding of the nature of the right said to have accrued under the particular statute, observing that the assertion that a party has an accrued right may be tested by asking what order a court could make in favour of the party had the court determined the liability of the other party prior to the repeal of the statue which conferred the right.[94]
[93]Ibid 228–229.
[94]Ibid 242–243 (citations omitted).
In De Simone v Legal Services Board, Macaulay J described the requirement as being that the claimant had taken some steps towards invoking the statutory right in question.[95]
[95][2017] VSC 471, [121]–[123].
Conclusion
While the Tribunal determined that it did not need to go beyond the issue whether there was a right for planning purposes under the planning scheme, this does not mean that the Tribunal overlooked or did not take into account the works actually completed by the plaintiffs.[96] It is plain that it did so. No right had accrued under the planning scheme because there was a gap in the field covered by the planning scheme which left the residential development of the land free of statutory regulation. The taking advantage of such an opportunity did not mean that any specific right crystallised.
[96]Tribunal decision [31]–[33], [37], [47], [72].
All that occurred was that advantage was taken of the absence of planning scheme control over the modification of a dwelling in the GRZ. The plaintiffs had no ‘accrued right’ despite everything that had been done previously, or was done subsequently.
Is there a difficulty in identifying the scope of the right?
The plaintiffs submitted that the Tribunal had been influenced by the difficulty it perceived in defining the exact scope of the right which had accrued.[97]
[97]Ibid [47], [74]–[80].
The plaintiffs submitted that the delineation of ‘as-of-right’ development is necessarily tied to the identification of the characteristics of the development including building height and eventual use. The problem was that the scope of the development was not defined in the planning scheme, or in any other planning document.
As to the scope of the accrued right for which they contended, the plaintiffs acknowledged that they would be effectively ‘locked in’ to whatever the evidence showed was the exact form of development that they were pursuing when the planning scheme was amended. A planning permit would be required if they wished to make even minor alterations to the design.
Alternatively, they contended that an accrued right might carry with it a degree of flexibility, and include alterations which were minor enough not to take the development outside of what may reasonably be described as the ‘same’ development. It was a necessary incident of the scope of the right that it be confined to the limits of what the planning scheme permitted ‘as-of-right’. The plaintiffs’ submission highlighted the difficulty with the non-specific nature of the right for which they contended.
The Council submitted that it was entirely proper for the Tribunal to seek to ascertain the scope of the right said to be obtained by the plaintiffs. During the Tribunal hearing, the plaintiffs had described the right which they exercised when they commenced development as one to carry out an approved scheme of works. The difficulty in defining the right was plain when the question was asked whether the right could be amended or modified. The Council questioned the existence of boundaries for the accrued right, and submitted that the plaintiffs’ inability to define the right with precision was symptomatic of the absence of any right in the planning scheme. It said that the inability to define the right stemmed from the fact that there was a gap in regulation and not a specific right created by the planning scheme.
In its submissions, the Council drew attention to the fundamental difficulty faced by the plaintiffs in defining the scope of the works within their suggested accrued right. It queried what would happen if the plaintiffs, or others in a similar position, after the new control was approved, would like more rooms in their house or other modifications. How would changes or additions to the works be assessed by the responsible authority, third party objectors or by the Tribunal? It is plain that the suggested accrued right is entirely undefined by the planning scheme, and its limits are difficult, or incapable of certain determination. Because of the gap in the planning scheme, there is nothing that assists in defining the accrued right.
The uncertainties in the plaintiffs’ alleged right is exemplified by the difficulty in determining the scope of an accrued right even where a planning permit has been issued. In Alkero Development Pty Ltd v Stonnington City Council, the Tribunal determined an application to amend a permit for dwellings instead of an aged care facility.[98] Due to amendments to the planning scheme, the approved development would no longer be permitted. The Tribunal held that the extent of the accrued right of development depended on a careful analysis of the permit in question, including its conditions and any endorsed plans.[99] Having identified the extent and nature of the accrued right, it must then be compared to the current planning controls to determine the extent to which it exceeds what was now permitted. Amendments which did not exceed the accrued right could be permitted, but those that did exceed or go beyond the extent of the accrued right could not.[100]
[98][2018] VCAT 1120.
[99]Ibid [44].
[100]Ibid.
The Tribunal acknowledged that it will not always be easy to ascertain what exactly constitutes the accrued right under the permit. It did not extend to whatever was possible to be approved at the time the permit was granted. If the effect of a permit condition was that a development may only be lawfully constructed to a nominated height, then that height defined the extent of the accrued right. The same necessarily applied to other parameters of development that may be set out in a planning scheme, such as setbacks, minimum garden areas etc.[101]
[101]Ibid [51].
Equally, a change by way of secondary consent under a condition of the planning permit, which typically provides that the use and development must not be altered unless with the written consent of the responsible authority, could not exceed the accrued right of development arising under the permit pursuant to s 28(2)(e) of the Interpretation Act.[102]
[102]Ibid [54]–[56].
In Jezmac Pty Ltd v Glen Eira City Council, a permit had been issued for an eight-storey mixed use building.[103] The demolition of existing buildings had been completed. As a result of a planning scheme amendment, a design and development overlay affected the subject land. The Tribunal accepted the principle that the construction of a statutory provision designed to protect or preserve a right such as s 28(2)(e) should be as liberally construed as the language and its context allows.[104] The Tribunal concluded that the subject matter of the accrued right depended on the description of the matter for which the permit was granted, regardless of whether the source of the permission was specified in what the permit allows.[105]
[103][2018] VCAT 2053.
[104]Ibid [16], referring to Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7, [33]; Gembrook Pines Pty Ltd v Glen Eira City Council [2016] VCAT 537, [22].
[105]Ibid [42].
Conclusion
I agree with the Council’s submission. The PE Act and the planning scheme do not recognise any form of existing development right where a development has been commenced but not completed before a planning scheme amendment takes effect.[106] The difficulty in defining the alleged right highlights the problem that arises where the planning scheme makes no reference to the source or boundaries of the suggested right, or the procedure to be followed if a right is to be established.
[106]In Tasmania, the position is different. The Land Use Planning and Approvals Act 1993 (Tas) s 12(3)(b) provides that nothing in a provision in a planning scheme is to be taken to prevent a development that was lawfully commenced but was not completed before the provision came into effect. See Calvary Health Care Tasmania Inc v Hobart City Council (2006) 15 Tas R 271.
The source and boundaries of the suggested right are not issues of fact to be determined by the Tribunal on the basis of the building work actually completed. Rather, what is shown is the fundamental difficulty in determining the scope of the right which must be found in the planning scheme, and based on its provisions.
Is a right to complete works already commenced consistent with the planning scheme?
It was submitted that recognition of an existing development right to complete is consistent with the purposes of the planning scheme.
The objectives of planning laws in Victoria include the conservation and enhancement of buildings of aesthetic, architectural or heritage interest or of special cultural value.[107] Section 6(3) of the PE Act confines savings to use regulation, as does cl 63 of the scheme which sets out the extent of existing use rights. They do not provide any protection to future development.
[107]PE Act s 4(1)(d).
No provision can be found in the planning scheme or in Amendment C204 which suggests any intention to afford the plaintiffs an accrued right to complete the works they had commenced.
The contrary is the case. The explanatory report, the panel report, the Council officer’s report, the content of Amendment C204 itself and the site specific nature of the heritage overlay, make it clear beyond dispute that the object of the amendment was to require the plaintiffs to obtain a planning permit for future works on their land. The Council officer’s report followed the panel report, and states that the place at 21 William Street, South Yarra is currently under threat from proposed works that would irrevocably reduce the heritage significance of the place, which is identified ‘as being of local architectural and historical significance to the City of Stonnington’.[108]
[108]Notice paper for the City of Stonnington’s Council meeting on 4 May 2015, 47.
It is not suggested that anything the plaintiffs did before the commencement of the amendment was unlawful. Amendment C204 to the planning scheme did not operate retrospectively. However, there was nothing in the planning scheme or the amendment that gave any protection to building works that took place after the amendment took effect even if the works were lawfully commenced.
In my view, the plaintiff’s submission is misguided. Neither s 28(2)(e) nor the common law recognised the work that had previously been done as an accrued right to perform future work.[109]
[109]Maxwell v Murphy (1957) 96 CLR 261.
Did the Tribunal err in determining the effect of a permit requirement?
Finally, the plaintiffs submitted that the Tribunal was in error to suggest that the existence of a right would be affected by an outright prohibition, but was not affected by the introduction of a permit requirement.[110]
[110]See Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (2016) 223 LGRA 30, [43]; appeal dismissed in Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (2017) 54 VR 676.
Review of the Tribunal’s reasons taken in context shows that the Tribunal was observing that the character of the plaintiffs’ power to develop the land differed from that which would arise under a permit. One significant difference was that the plaintiffs could now apply for, and obtain a permit for the development of the subject land on terms acceptable to them. As a result, the Tribunal observed that the asserted right was a right to develop without a planning permit.[111]
[111]Tribunal decision [34].
No error of law is discernible, and in any event the point being made by the Tribunal is of marginal significance to the Tribunal’s reasoning as a whole. It could not be a vitiating error.[112]
[112]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing at 22).
Conclusion
For the reasons that I have given above, the plaintiffs have not established that the Tribunal erred in law. In my view, the Tribunal decision was fundamentally correct for the reasons given above.
Leave for appeal will be granted but the proceeding must be dismissed.
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