IGA Retail Services Pty Ltd v Minister for Planning

[2025] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0125

IGA RETAIL SERVICES PTY LTD (ACN 002 454 686) & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
MINISTER FOR PLANNING & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	Niall CJ, Emerton P, Richards JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2025
DATE OF JUDGMENT:	7 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 180

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ADMINISTRATIVE LAW – Judicial review – Proposed amendment to Greater Shepparton Planning Scheme – Panel constituted under Planning and Environment Act 1987 pt 8 recommended adoption of amendment – Council resolved to adopt amendment – Amendment not yet approved by Minister – Applicants brought judicial review proceeding seeking relief in respect of alleged errors by Panel and Council – Whether Planning andEnvironment Act 1987 s 39 prevents applicants from seeking that relief – Planning and Environment Act 1987 ss 12, 24, 25, 27, 29, 35, 38, 39, 161.

STATUTORY INTERPRETATION – Whether Planning andEnvironment Act 1987 s 39 prevents applicants seeking judicial review remedies in Supreme Court – Legislative intention to restrict jurisdiction – Constitutional considerations – Provision does not prevent judicial review for jurisdictional error – Planning and Environment Act 1987 s 39 – East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, considered.

CONSTITUTIONAL LAW – Constraints on legislative power to limit jurisdiction of Supreme Court – Statute cannot oust Supreme Court’s constitutionally entrenched supervisory jurisdiction to review for jurisdictional error – Constitution Act 1975 ss 18, 85 – Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, applied.

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Counsel
Applicants:		Mr N Wood SC with Mr R Chaile
First Respondent:		Mr E Nekvapil SC with Ms C van Proctor
Solicitors
Applicants:	Minter Ellison
First Respondent:	Victorian Government Solicitor

NIALL CJ
EMERTON P
RICHARDS JA:

1. In this proceeding, two questions are reserved for the consideration of the Court of Appeal:

   Question 1

   Does s 39 of the Planning and Environment Act 1987 (Vic) prevent the plaintiffs from seeking the relief sought in the originating motion filed in this proceeding (S ECI 2024 02935)?

   Question 2

   To the extent necessary to decide Question 1, was the decision in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, as to the construction of s 39 of the Planning and Environment Act 1987 (Vic), plainly wrong?

2. For the reasons that follow, the answers to those questions are:

   Question 1

   No.

   Question 2

   Unnecessary to answer.

Background

1. The applicants, IGA Retail Pty Ltd and Shepparton Pty Ltd (‘Shepparton’), have interests in land at 177–193 Numurkah Road, Shepparton North (‘Southern Site’). There is an existing supermarket on the Southern Site, and a planning permit that allows its use and development for two supermarkets and accompanying speciality retail. While the permit was first granted as long ago as April 2018, work on the development of the supermarket or supermarkets has not yet commenced.

2. On 21 March 2023, the Greater Shepparton City Council (‘Council’) adopted the Shepparton North Activity Centre Structure Plan (‘Structure Plan’). The Structure Plan seeks to guide the future development of the Shepparton North area, dividing it into six precincts and setting out a vision for each precinct. The Southern Site is located in Precinct 1. Implementation of the Structure Plan would require an amendment to the Greater Shepparton Planning Scheme (‘Planning Scheme’), in accordance with pt 3 of the Planning and Environment Act 1987 (‘PE Act’).

3. On 27 October 2023, a delegate of the Minister for Planning (‘Minister’) authorised the Council to prepare and exhibit proposed ‘Greater Shepparton Planning Scheme Amendment C245gshe: Shepparton North Activity Centre Structure Plan’ (‘Amendment’) to the Planning Scheme.[1] The Amendment was placed on public exhibition and the Council received a number of submissions about it, including a submission from the applicants. In January 2024, the Council resolved to refer all of those submissions to a planning panel,[2] and in February 2024, a delegate of the Minister appointed a panel to consider the submissions (‘Panel’).[3]

   [1]As required by the Planning and Environment Act 1987, s 8A (‘PE Act’).

   [2]PE Act, s 23.

   [3]PE Act, s 153.

4. The Panel held public hearings from 26 February to 5 March 2024, and on 22 March 2024 provided a report of its findings and recommendations to the Council. The Panel recommended that the Amendment be adopted as exhibited, subject to a number of changes.

5. The Amendment would rezone most of the land within the Structure Plan area to a new Activity Centre Zone Schedule 2 and would allow the Southern Site in Precinct 1 and a ‘Northern Site’ in Precinct 2A to be used for supermarkets, without a permit, up to a total floor area of 13,500 square metres.

6. The applicants contend that the effect of the Amendment would be to allow for the immediate, ‘as of right’ use of land within the Structure Plan area for three or four supermarkets.

7. On 23 April 2024, the Council resolved to adopt the Amendment with the changes recommended by the Panel and submit the Amendment to the Minister (‘April Resolution’). On 8 May 2024, the Council submitted the Amendment to the Minister for approval.

8. The Council subsequently came to the view that the April Resolution was invalid, because the exact form of the changes to the Amendment recommended by the Panel was not before the Council at its meeting on 23 April 2024. On 23 July 2024, the Council resolved to adopt the Amendment with changes recommended by the Panel and submit the Amendment to the Minister (‘July Resolution’). On 16 August 2024, the Council submitted the Amendment as adopted by the July Resolution to the Minister for approval.

9. The Amendment will not come into effect unless it is approved by the Minister under s 35 of the PE Act. The Minister has not yet approved the Amendment.

10. On 11 June 2024, the applicants commenced a judicial review proceeding in the Trial Division. The defendants to the proceeding are the Minister, the Council, Kathy Mitchell AM and Peter Marshall (as members of the Panel), and Lascorp Investment Group Pty Ltd, which controls the Northern Site.

11. In their judicial review proceeding, the applicants contend that the Panel’s report was legally unreasonable, that the Panel failed to consider the substantial submissions made by the applicants, and that the Panel gave inadequate reasons. They say that, as a result, the Panel’s report is affected by jurisdictional error and is invalid. The applicants further contend that, because the Panel’s report is invalid, the Council’s April Resolution was also invalid, and the Minister has no power to approve the Amendment. The orders sought by the applicants include orders in the nature of certiorari quashing the Panel’s report and the April Resolution, and an injunction restraining the Minister from approving the Amendment.

12. In addition, Shepparton has commenced two proceedings in the Victorian Civil and Administrative Tribunal (‘Tribunal’) under s 39 of the PE Act, seeking review of the April Resolution and the July Resolution.

13. On 29 October 2024, Quigley J made an order under s 17B of the Supreme Court Act 1986, reserving the questions set out at [1] above for the consideration of the Court of Appeal. The questions were reserved on the application of the Minister.

Statutory framework

1. The reserved questions concern the proper construction of s 39 of the PE Act, which provides:

   Defects in procedure

   (1)A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

   (2)In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are—

   (a)the person who referred the matter to the Tribunal; and

   (b)the Minister; and

   (c)the planning authority.

   (3)If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.

   (4)The Tribunal may determine a matter referred to it under this section and may do any one or more of the following—

   (a)make any declaration that it considers appropriate;

   (b)direct that—

   (i)the planning authority must not adopt the amendment or a specified part of the amendment; or

   (ii)the Minister must not approve the amendment or a specified part of the amendment—

   (c)unless the Minister, planning authority or a panel takes action specified by the Tribunal.

   (5)In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

   * * * * *

   (7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.

   (8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.

   (9) This section does not apply to a planning scheme prepared by the Suburban Rail Loop Authority that applies to land to which a Suburban Rail Loop planning area declaration applies.

2. Section 39 is located in pt 3 of the PE Act, which concerns the amendment of planning schemes.

3. The purpose of the PE Act is to establish a framework for planning the use, development and protection of land in Victoria, in the present and long-term interests of all Victorians.[4] The objectives of planning in Victoria are set out in s 4(1):

   [4]PE Act, s 1.

   The objectives of planning in Victoria are—

   (a) to provide for the fair, orderly, economic and sustainable use, and development of land;

   (b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

   (c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

   (d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

   (e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

   (f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

   (fa) to facilitate the provision of affordable housing in Victoria;

   (g) to balance the present and future interests of all Victorians.

4. Section 4(2) sets out the objectives of the planning framework established by the PE Act, relevantly:

   …

   (b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

   …

   (h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

   (i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

   (j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

   …

5. Part 1A of the PE Act provides for the Victoria Planning Provisions (‘VPPs’), which are prepared and approved by the Minister, to ‘assist in providing a consistent and co‑ordinated framework for planning schemes in Victoria’.[5]

   [5]PE Act, s 4A(1).

6. Part 2 provides for planning schemes, each of which must seek to further the objectives of planning in Victoria within the area covered by the scheme.[6] A planning scheme comprises both State standard provisions selected from the VPPs and local provisions.[7]

   [6]PE Act, s 6(1)(a).

   [7]PE Act, s 7(1), (2).

7. A planning scheme is prepared and may be amended by a ‘planning authority’. The Minister is a planning authority for every planning scheme,[8] while a municipal council is a planning authority for a planning scheme in force in its municipal district.[9] The duties and powers of planning authorities provided in s 12 include preparing amendments to a planning scheme for which it is a planning authority, in accordance with s 12(2):

   [8]PE Act, s 8.

   [9]PE Act, s 8A.

   In preparing a planning scheme or amendment, a planning authority—

   (a)      must have regard to the Minister’s directions; and

   (aa)      must have regard to the Victoria Planning Provisions; and

   (ab) in the case of an amendment, must have regard to any strategic plan, policy statement, code or guideline which forms part of the scheme; and

   (b) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and

   (c)      must take into account its social effects and economic effects.

8. Part 3 of the PE Act provides for the amendment of planning schemes. It is structured as follows:

   (a)Division 1 provides for the exhibition and notice of an amendment;

   (b)Division 2 provides for public submissions about an amendment;

   (c)Division 3 provides for the adoption and approval of an amendment;

   (d)Division 4 deals with the availability of approved amendments and schemes; and

   (e)Division 5 contains special provisions.

9. Sections 17, 18 and 19, which are found in pt 3 div 1, require a planning authority to exhibit and give notice of any amendment it has prepared to a planning scheme. Section 20 provides for some exemptions from these notice requirements. In particular, s 20(4) enables the Minister to exempt herself from any of the requirements of ss 17, 18 and 19 and the regulations in respect of an amendment that the Minister has prepared ‘if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate’.

10. Division 2 of pt 3 provides a process for public submissions about an amendment. Where notice of an amendment is given under s 19, any person may make a submission to the planning authority about the amendment.[10] The planning authority must consider any submissions made,[11] and may refer submissions to a panel appointed under pt 8 of the PE Act.[12]

    [10]PE Act, s 21(1).

    [11]PE Act, s 22.

    [12]PE Act, s 23(1)(b).

11. Section 24 provides:

    Hearing by panel

    The panel must consider all submissions referred to it and give a reasonable opportunity to be heard to—

    (a)      any person who has made a submission referred to it;

    (b)     the planning authority;

    (c)      any responsible authority or municipal council concerned;

    (d)     any person who asked the planning authority to prepare the amendment;

    (e) any person whom the Minister or the planning authority directs the panel to hear.

12. The panel must report its findings to the planning authority, and may make any recommendations it thinks fit in its report.[13] The planning authority must consider the panel’s report before deciding whether or not to adopt the amendment.[14]

    [13]PE Act, s 25(1), (2).

    [14]PE Act, s 27(1).

13. Division 3 of pt 3 provides for the adoption and approval of an amendment. Section 29(1) provides:

    After complying with Divisions 1 and 2 in respect of an amendment or any part of it, the planning authority may adopt the amendment or that part with or without changes.

14. A planning authority other than the Minister must then submit the adopted amendment to the Minister,[15] who may give directions to give more notice of the amendment or notice of changes to the amendment, and may receive further submissions about the amendment.[16]

    [15]PE Act, s 31(1).

    [16]PE Act, ss 32–4.

15. The ultimate step in the amendment process is the approval of the amendment by the Minister under s 35. Section 35(1) provides:

    Subject to this section, the Minister may—

    (a) approve an amendment or a part of an amendment prepared by the Minister or submitted to the Minister under section 31—

    (i)      with or without changes; and

    (ii)     subject to any conditions the Minister wishes to impose; or

    (b)     refuse to approve the amendment or part of the amendment.

16. Notice of the approval of an amendment must be published in the Government Gazette.[17] The amendment comes into effect on the publication of the notice of approval, or on a later day specified in the notice.[18]

    [17]PE Act, s 36(1).

    [18]PE Act, s 37.

17. In addition, the Minister must cause notice of the approval of every amendment to be laid before each House of Parliament within 10 sitting days after it is approved.[19] Either House of Parliament may revoke an amendment by resolution passed within 10 sitting days after the notice of approval is laid before that House.[20] In that event, the amendment ceases to have effect.[21]

    [19]PE Act, s 38(1).

    [20]PE Act, s 38(2).

    [21]PE Act, s 38(3).

18. Division 3 of pt 3 ends with s 39, which is set out at [16] above.

19. Part 8 of the PE Act provides for the appointment of, and the conduct of hearings by, panels.

20. The general procedure for panel hearings is set out in s 161. Section 161(1) provides:

    In hearing submissions, a panel—

    (a) must act according to equity and good conscience without regard to technicalities or legal forms; and

    (b)     is bound by the rules of natural justice; and

    (c)      is not required to conduct the hearing in a formal manner; and

    (d) is not bound by the rules or practice as to evidence but may inform itself on any matter—

    (i)      in any way it thinks fit; and

    (ii)     without notice to any person who has made a submission.

21. Section 166(1) enables a panel to ‘continue to hear submissions and make its report and recommendations despite any defect, failure or irregularity in the preparation of a planning scheme or amendment or any failure to comply with Division 1, 2 or 3 of Part 3 in relation to the preparation of the planning scheme or amendment’. Alternatively, if the panel thinks there has been a substantial defect, it may adjourn the hearing and make an interim report.[22]

East Melbourne GroupInc v Minister for Planning

[22]PE Act, s 166(2).

1. East Melbourne Group Inc v Minister for Planning (‘East Melbourne’)[23] concerned a decision of the then Minister for Planning to approve an amendment to the Melbourne Planning Scheme. The Minister approved the amendment after having decided, under s 20(4) of the PE Act, to exempt herself from the requirements of ss 17, 18 and 19 of the PE Act and the regulations. A local residents’ group brought a judicial review proceeding, challenging the validity of the Minister’s exemption decision and, consequentially, her approval of the amendment.

   [23](2008) 23 VR 605; [2008] VSCA 217 (‘East Melbourne’).

1. At first instance, the plaintiff’s challenge to the exemption decision did not succeed.[24] However, on appeal, this Court held by majority that the Minister’s exemption decision was legally unreasonable and hence invalid. It was then necessary to determine whether s 39(7) of the PE Act had the effect that the amendment was valid, despite the invalidity of the exemption decision and the consequent failure to comply with pt 3 div 1 of the PE Act. The majority determined that s 39(7) of the PE Act ‘only addresses non-compliance with procedural requirements’ and ‘does not apply to decisions which are tainted by jurisdictional error’.[25]

   [24](2005) 12 VR 448; [2005] VSC 242 (‘East Melbourne (trial)’).

   [25]East Melbourne (2008) 23 VR 605, 690 [370] (Ashley and Redlich JJA); [2008] VSCA 217.

2. Justices Ashley and Redlich rejected the contention that s 39(7) preserved the validity of the amendment where there had been non-compliance with the requirements for making the exemption decision in the following terms:

   The exercise by the minister of the power to exempt herself from the notification requirements of the Act had drastic consequences. It meant, because no notification of the proposed amendment had to be given, that no right to make submissions existed, and that the public was denied participation in the process which would lead, in conventional circumstances, to the minister’s approval or refusal to approve the amendment. In short, s 20(4) conferred upon the minister a discretion to follow a process which departed from a number of the stated objectives of the Act.

   It is integral to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. So privative clauses are strictly construed.

   In our opinion, there is nothing express, or necessarily to be implied, in the legislative instrument which requires s 39(7) to be construed so as to deny a court the capacity to examine, for error of the kinds alleged in this proceeding, a decision to exempt a proposed amendment from the notification requirements of the Act; or to deny a court the power to make orders which strike down the consequences of a fatally flawed exercise of the exemption discretion. Section 39(7) is concerned with a “failure to comply” with the specified parts of the Act. In our opinion, that strongly supports a conclusion that the subsection addresses, as the heading to the section states, “defects in procedure”. Further, only where an amendment has not been approved does the section expressly state, by subs (8), that a person cannot bring an action in respect of non-compliance with, inter alia, Divs 1 or 2 of Pt 3. Why permit action if it could lead nowhere?[26]

   [26]East Melbourne (2008) 23 VR 605, 689–90 [366]–[368] (Ashley and Redlich JJA); [2008] VSCA 217 (citations omitted).

3. The majority then referred to Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development (‘Grollo’),[27] in which Brooking J considered the effect of what was then s 39(2) of the PE Act, an earlier version of the current s 39(7).[28] His Honour held that ‘[f]ailures of any kind and degree to comply with the requirements of ss. 17–19, proceeding from any cause, can be described as “defects in procedure”’,[29] and rejected a submission that s 39(2) was only concerned with fundamental or essential failures to comply with divs 1, 2 and 3.[30]

   [27]Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development [1993] 1 VR 627 (‘Grollo’).

   [28]See [81]–[82] below in relation to the legislative history of s 39.

   [29]Grollo [1993] 1 VR 627, 644 (Brooking J).

   [30]Grollo [1993] 1 VR 627, 646 (Brooking J). At 647, his Honour applied that analysis in relation to s 39(7) of the PE Act.

4. In relation to Brooking J’s analysis in Grollo, the majority observed that it was not necessary to his decision to consider, and that it appeared not to have been argued in that case, that ‘want of compliance constituted jurisdictional error which vitiated the exercise of the discretion’.[31] Their Honours concluded:

   For the reasons which we have stated, and also substantially for the reasons given by [the trial judge],[32] we agree with him that s 39(7) only addresses non‑compliance with procedural requirements; and that it does not apply to decisions which are tainted by jurisdictional error. The provision, when considered within the context of the whole legislative instrument, is not intended to remove the court’s capacity to ensure that administrative powers are exercised according to law. In consequence, the end product of a fatally flawed exercise of the exemption discretion is not protected against relief at the instance of a person with sufficient standing.[33]

   [31]East Melbourne (2008) 23 VR 605, 690 [369] (Ashley and Redlich JJA); [2008] VSCA 217.

   [32]Referring to East Melbourne (trial) (2005) 12 VR 448, 483–4 [101] (Morris J); [2005] VSC 242.

   [33]East Melbourne (2008) 23 VR 605, 690–1 [370] (Ashley and Redlich JJA); [2008] VSCA 217 (citations omitted).

5. The majority left for another day the question whether s 39(8) would preclude a right to seek and obtain relief for jurisdictional error.[34]

   [34]East Melbourne (2008) 23 VR 605, 690 [368] n 205 (Ashley and Redlich JJA); [2008] VSCA 217.

6. When considering the effect of s 39(7), the majority did not have regard to Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’).[35] In particular, the majority did not consider whether s 39(7) — on its face a ‘no-invalidity’ clause — evinced a legislative intention that non-compliance with pt 3 divs 1–3 or pt 8 of the PE Act not result in the invalidity of a planning scheme amendment.[36]

   [35](1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’).

   [36]Cf Project Blue Sky (1998) 194 CLR 355, 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

7. Furthermore, East Melbourne was decided well before Kirk v Industrial Relations Commission of New South Wales (‘Kirk’),[37] in which the High Court of Australia confirmed that there is a constitutional constraint on the legislative power of the States to limit the jurisdiction of State Supreme Courts to review decisions of administrative bodies for jurisdictional error.

   [37](2010) 239 CLR 531; [2010] HCA 1 (‘Kirk’).

8. We deal with the issues raised by these two authorities in detail below.

9. Against this background, we turn to consider the referred questions.

Question 1

1. Question 1 asks whether s 39 of the PE Act prevents the applicants from seeking the relief sought in the originating motion filed in their judicial review proceeding in the Trial Division of the Court.

2. It was common ground that the question should be answered by reference to the grounds of review set out in the applicants’ originating motion. In general terms, those grounds are as follows:

   (a)Ground 1: the Panel’s recommendation that the Council adopt the Amendment was legally unreasonable and therefore affected by jurisdictional error;

   (b)Ground 2: the Panel failed to consider substantial submissions that the applicants made to it and accordingly its report is affected by jurisdictional error;

   (c)Ground 3: the Panel gave inadequate reasons for the findings and recommendations in its report, which amounted to both jurisdictional error and error of law on the face of the record;

   (d)Ground 4: in consequence of the invalidity of the Panel’s report, the Council’s adoption of the Amendment was also invalid; and

   (e)Ground 5: the Minister has no power under s 35(1) to approve the Amendment, because both the Panel’s report and the Council’s adoption of the Amendment were invalid.

Minister’s submissions

1. The Minister submitted that the text of s 39(1) and (8) is clear:

   (a)The only ‘action’ permitted in respect of a failure to comply with pt 3 divs 1–3 or pt 8 in relation to an amendment which has not been approved is an application to the Tribunal under s 39(1).

   (b)By s 39(8), a person cannot bring such an action in the Supreme Court.

   (c)There is no qualification in the text of s 39(1) and (8) of the expression ‘failure to comply’, by type, degree of seriousness or otherwise.

   (d)Even if regard is had to the heading of s 39, failures to comply with pt 3 divs 1–‍3 and pt 8, of any kind or degree, can all be described as ‘defects in procedure’.[38]

   (e)As a result, if an amendment has not been approved, any action about any failure to comply must be brought in the Tribunal under s 39(1).

   [38]Referring to Grollo [1993] 1 VR 627, 644 (Brooking J).

2. The Minister argued that this simple, textual construction is also supported by purpose:

   (a)Giving the text an accessible meaning would promote the s 4(2)(h) objective of the planning framework established by the PE Act, being to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making.

   (b)It would also promote the objective in s 4(2)(j) of providing an accessible process for just and timely review of decisions without unnecessary formality, by directing disputes about compliance with pt 3 divs 1–3 or pt 8 to the Tribunal, which is a more flexible, lower cost and more expert forum than the Supreme Court.

3. In support of her construction, the Minister referred to some early Supreme Court authority in relation to s 39:

   (a)In Mietta’s Melbourne Hotels Pty Ltd v Roper (‘Mietta’s’),[39] the plaintiff brought a judicial review proceeding alleging that the Minister’s exemption decision was ultra vires, including for improper purpose, that his adoption of the amendment was void, including for irrelevant considerations, and that the amendment itself was also void. Justice Beach held that the Court did not have jurisdiction to determine the pleaded grounds, because they all concerned a ‘failure to comply’ with pt 3 divs 1–3. His Honour rejected an argument that s 39(3) — the earlier form of s 39(8) — was concerned only with ‘procedural’ requirements and was not concerned with ‘ultra vires of a wider sense’.[40]

   (b)In Grollo, Brooking J held that, perhaps excepting bad faith, there was no satisfactory criterion for delineating between types or degrees of ‘failure to comply’ and that s 39(2) applied even to a total failure to comply with ss 17 to 19.[41]

   (c)The Minister drew attention to the fact that Mietta’s was not followed in Antoniou v Roper.[42] In that case, Murphy J held that s 39 was designed to apply to defects in procedure and not to an amendment ‘which in its preparation and adoption flagrantly flouts altogether the provisions of Divs 1, 2 or 3, and is to be seen as an ultra vires or arbitrary exercise of power by the Minister’.[43] In addition, his Honour had earlier ruled that there were ‘special circumstances’ that justified the hearing of the application by the Supreme Court rather than the then-Administrative Appeals Tribunal (‘AAT’).[44]

   [39]Mietta’s Melbourne Hotels Pty Ltd v Roper (1988) 1 AATR 354 (‘Mietta’s’).

   [40]Mietta’s (1988) 1 AATR 354, 363.

   [41]Grollo [1993] 1 VR 627, 646.

   [42]Antoniou v Roper (1990) 70 LGRA 351.

   [43]Antoniou v Roper (1990) 70 LGRA 351, 372.

   [44]Within s 66A(2) of the Planning Appeals Act 1980.

4. The Minister acknowledged that the textual construction of s 39(1) and (8) was not supported by the decision in East Melbourne. Since then, a ‘failure to comply’ in s 39 has been understood to be limited to a failure to comply with a procedural requirement of pt 3 divs 1–3 or pt 8, and not to extend to substantive errors of the kind alleged in the originating motion.

5. The Minister also accepted that the expression ‘failure to comply’ should be given the same meaning in each of sub-ss 39(1), (7) and (8), and so the correct construction of s 39(7) is relevant to the correct construction of s 39(8). The Minister submitted that ‘failure to comply’ in s 39 should be understood to encompass any failure to comply with any constraint on the authority conferred by pt 3 divs 1–3 or pt 8 on the Minister, a planning authority, or a panel, whether express or implied.

6. In support of this submission, the Minister argued that Project Blue Sky raised two questions of statutory construction relevant to an asserted failure to comply with a condition constraining statutory authority to do a thing:

   (a)first, what is the asserted condition, express or implied, and what is its content; and

   (b)second, what are the consequences of non-compliance with the condition?

7. The Minister submitted that — contrary to the conclusion reached by the majority in East Melbourne — s 39(7) has the effect that any non-compliance with any condition in pt 3 divs 1–3 or pt 8 does not invalidate an amendment purportedly approved under s 35.[45] Further, the Minister said that, by necessary implication, non-compliance with a condition on the authority to make any decision anterior to approval also does not invalidate any such anterior decision. The Minister submitted that it would be absurd to attribute that intention to the Parliament that had expressly stated that non-compliance at any anterior step in pt 3 divs 1–3 or pt 8 did not invalidate an approved amendment. The Minister asked: ‘What would be the point of having invalidity affecting those anterior steps if they cannot affect the approval?’.

   [45]Referring to Hume City Council v Minister for Planning [2022] VSC 187, [29] (Richards J) (‘Hume’).

8. On that construction, the Minister argued:

   (a)Section 39(8) was not an impermissible privative clause, because it did not deprive the Supreme Court of its constitutionally-guaranteed supervisory jurisdiction to grant prerogative writs for jurisdictional error.[46]

   (b)Jurisdictional error involves non-compliance with a condition on statutory authority, the consequence of which is invalidity.[47]

   (c)Parliament should not be taken to have intended invalidity as a consequence of non-compliance with any condition constraining authority to do a thing under pt 3 divs 1–3 or pt 8, and so any failure to comply could not amount to jurisdictional error in respect of which certiorari could be ordered.

   (d)At most, non-compliance would involve unlawfulness short of invalidity, for which declaratory relief might be available.[48]

   [46]Referring to Kirk (2010) 239 CLR 531, 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1.

   [47]Referring to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, 235–6 [2]–[4] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); [2024] HCA 12 (‘LPDT’).

   [48]Referring to Bare v Independent Broad-based Anti-corruption Commission (2015) 48 VR 129; [2015] VSCA 197; Project Blue Sky (1998) 194 CLR 355, 393 [100]–[101] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

9. The Minister added that there was no danger of this construction of s 39(8) creating any ‘islands of power’,[49] because of the correlative right under s 39(1) to refer a failure to comply to the Tribunal for its determination. In addition, under s 38 of the PE Act, Parliament has taken to itself responsibility for review of planning scheme amendments, which are a form of delegated legislation.[50]

   [49]Referring to Kirk (2010) 239 CLR 531, 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1.

   [50]Noting that planning scheme amendments are exempt from the ordinary scheme for ‘legislative instruments’ in the Subordinate Legislation Act 1994.

10. In response to a suggestion that ‘action’ in s 39(8) might be understood to refer to an action in the Tribunal, the Minister submitted that ‘action’ should be understood to cover all proceedings in any forum in respect of complaints about non-compliance with the relevant provisions. She drew attention to four textual matters in support of that submission:

    (a)first, the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) refers uniformly and entirely to ‘proceedings’ rather than ‘actions’;

    (a)second, s 138 of the PE Act uses ‘action’ as a broad term clearly intended to embrace any legal proceeding in any forum;

    (b)third, the Tribunal only has the jurisdiction given to it under enabling enactments, and the PE Act does not give it any general jurisdiction to entertain an action in relation to compliance with pt 3 divs 1–3 or pt 8; and

    (c)fourth, s 39(1) expressly refers to the Tribunal, while s 39(8) does not, indicating that ‘action’ in s 39(8) is not limited to an action in the Tribunal.

11. On that basis, the Minister submitted that the Court should answer the first question ‘yes’. At the same time, she said that the Court should reserve for the future the question whether a ‘conscious maladministration’ might fall outside the expression ‘failure to comply’ in s 39.[51]

Applicants’ submissions

[51]Referring to Grollo [1993] 1 VR 627, 646 (Brooking J); Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 157 [25], 164 [55] (Gummow, Hayne, Heydon and Crennan JJ); [2008] HCA 32 (‘Futuris’); Deputy Commissioner of Taxation v Leaver [2015] FCA 1454, [6] (Pagone J).

1. The applicants identified three propositions they said the Minister had to establish in order to make good her case that the first question should be answered ‘yes’ — that is, that s 39 of the PE Act prevents the applicants from seeking the relief in the originating motion. The applicants contended that none of these propositions was capable of being made good and that the first question must therefore be answered ‘no’.

2. The three contested propositions are:

   (a)that there are no jurisdictional limits on the exercise of powers by a panel under s 25 of the PE Act, by the Council as the planning authority under s 29, or by the Minister under s 35;

   (b)that the PE Act ousts the power of the Court to grant relief in respect of error of law on the face of the record; and

   (c)that East Melbourne is plainly wrong.

3. The first proposition cannot be made good, the applicants submitted, because the Court’s supervisory jurisdiction with respect to jurisdictional error is constitutionally entrenched.[52] The applicants submitted that the Court should reject the proposition that none of the grounds advanced in their originating motion sounded in jurisdictional error; that would infringe the basic principle that ‘[e]very statutory discretion, however broad, is constrained by law’[53] and that a condition that (for example) a statutory discretion is to be exercised reasonably is to be treated as an ‘essential condition’.[54]

   [52]Referring to Kirk (2010) 239 CLR 531; [2010] HCA 1.

   [53]Referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 348 [23] (French CJ); [2013] HCA 18.

   [54]Referring to Abebe v The Commonwealth (1999) 197 CLR 510, 554 [116] (Gaudron J); [1999] HCA 14.

4. The applicants further submitted that, carried to its logical conclusion, the effect of the Minister’s unitary construction of s 39 would be to aggrandise all of the powers in pt 3 divs 1–3 by declaring all conditions on those powers to be non-jurisdictional — not only the Minister’s power of approval under s 35. That would create ‘islands of power immune from supervision and restraint’, contrary to the prohibition in Kirk. The applicants pointed out that the Minister’s position that implied conditions on the powers in pt 3 divs 1–3 and pt 8 were non-jurisdictional contradicted her acceptance that acting with conscious maladministration might involve jurisdictional error.

5. As to the second proposition, the applicants submitted that an intention to alter the settled and familiar role of superior courts to grant certiorari for error of law on the face of the record must be clearly expressed.[55] According to the applicants, no such intention is expressed in s 39. They identified a number of cases in which the Court had proceeded on the basis that it has jurisdiction to correct error of law on the face of the record in relation to decisions under pt 3 divs 1–3 and pt 8.[56]

   [55]Referring to Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, 14 [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 4 (‘Probuild’).

   [56]Referring to Melton City Council v Minister for Planning [2021] VSC 700; Moorabool Shire Council v Minister for Planning [2021] VSC 701; Melton City Council v Minister for Planning [2022] VSCA 144.

1. As to the third proposition, the applicants argued that East Melbourne was correctly decided or, alternatively, was not plainly wrong.

2. The applicants acknowledged that s 39(7) might have the effect that a breach of an express or implied condition on the Minister’s power to approve an amendment would not be jurisdictional if, contrary to East Melbourne, s 39(7) is a ‘no-invalidity’ clause with the effect contended for by the Minister.[57] However, such a breach could be a basis for an injunction to restrain the Minister from approving the amendment, even if it would not invalidate the decision after it was made. There would be utility in seeking to restrain the Minister from approving an amendment in reliance on a panel report or an adoption decision that was affected by jurisdictional error, even if s 39(7) meant that neither would invalidate the amendment after it had been approved.

   [57]Referring to LPDT (2024) 280 CLR 321, 236 [4] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); [2024] HCA 12.

3. Further, the applicants argued that while the text of s 39(7) may be consistent with it being a ‘no-invalidity’ provision in relation to an amendment that has been approved under s 35, s 39(8) is not framed as a ‘no-invalidity’ provision. An interpretation based on the maxim expressio unius suggests that Parliament did not intend to shield anterior steps from invalidity for failure to comply with the requirements of pt 3 divs 1–3 and pt 8. To the contrary, adoption of an amendment under s 29 is expressly conditioned on compliance with pt 3 divs 1–2, and s 161 obliges a panel to observe the rules of natural justice.

4. The applicants acknowledged that there might be an overlap between the Tribunal’s jurisdiction under s 39(1) and the Court’s judicial review jurisdiction, but pointed out that there was nothing unusual about that circumstance. They accepted that the overlap might give rise to a discretionary reason to refuse relief on judicial review, such as where the applicant was also pursuing the non-compliance in the Tribunal.[58]

   [58]Referring to Futuris (2008) 237 CLR 146, 162 [48] (Gummow, Hayne, Heydon and Crennan JJ); [2008] HCA 32.

5. The applicants made the following points about s 39(8):

   (a)First, it is not a ‘no-invalidity’ provision, in that it does not say that non-compliance with a condition does not result in invalidity.

   (b)Second, s 39(8) was enacted before Kirk was decided. It is possible that Parliament intended to direct all complaints of non-compliance with pt 3 divs 1–‍3 and pt 8 to the Tribunal, irrespective of whether they involved jurisdictional error. If so, Parliament lacked power to deprive the Court of jurisdiction to review decisions for jurisdictional error.

   (c)Third, Parliament has not amended s 39(8) in response to East Melbourne and the subsequent decisions of the Tribunal that have explained its implications for the Tribunal’s jurisdiction under s 39(1).

   (d)Fourth, s 39(8) confers a bespoke supervisory jurisdiction on the Tribunal, which is not in the nature of merits review. It provides an informal, no-cost forum for the determination of disputes about the planning scheme amendment process, as a more accessible alternative to judicial review. The Tribunal has a broad jurisdiction under s 39 to remedy non-compliance, which has utility extending beyond the Court’s functions on judicial review.

6. On that basis, the applicants submitted that their originating motion is competent and that the first question should be answered ‘no’ — whether or not East Melbourne was correctly decided.

Consideration of Question 1

1. The central question in this proceeding is one of statutory construction: is the applicants’ proceeding seeking relief on the originating motion an ‘action’ for the purposes of s 39(8)? That is, is it an action in respect of a failure to comply with pt 3 divs 1–3 or pt 8 in relation to an amendment that has been adopted but not yet approved?

2. In accordance with orthodox principle, that question is to be answered by reference to text, context and purpose.[59]

   [59]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41.

3. However, there are constitutional imperatives and conventions that bear upon whether, and if so, to what extent, the jurisdiction of the Supreme Court can be ousted by a provision — such as s 39 — that purports to give a statutory body exclusive jurisdiction to determine certain matters and thereby to limit the jurisdiction of the Supreme Court.

4. It is convenient to refer to those constraints at the outset, as they frame much of what follows. This is because s 6 of the Interpretation of Legislation Act 1984 provides that every Act shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State.

5. There are two relevant constitutional imperatives. The first, explained by the High Court in Kirk, is that the Supreme Court has a constitutionally entrenched supervisory jurisdiction over executive action. That jurisdiction extends to challenges to subordinate instruments or delegated legislation.[60] The jurisdiction traditionally exercised by the issue of writs such as certiorari and prohibition, and now by orders in that form, is also supported by the exercise of auxiliary equitable powers to grant injunctions and by making declarations.[61] It operates with respect to jurisdictional errors. ‘Jurisdictional error’ relevantly includes non-compliance with an express or implied condition on the exercise of decision-making power conferred by statute, the consequence of which is invalidity.[62]

   [60]R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 606–7 (Latham CJ); [1945] HCA 53, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1; [1910] HCA 33.

   [61]Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 257–8 [24]–[26] (Gaudron, Gummow and Kirby JJ); [1998] HCA 49; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11.

   [62]LPDT (2024) 280 CLR 321, 235–6 [2]–[4] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); [2024] HCA 12.

6. The jurisdiction of the Supreme Court to review for jurisdictional error cannot be removed by Parliament. However, legislation may provide that a failure to comply with a statutory condition on the exercise of administrative power does not result in the invalidity of the action in question, so that the non-compliance does not involve jurisdictional error.[63]

   [63]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 225 [45]–[46] (Gleeson CJ, Gummow and Heydon JJ); 227 [54] (McHugh J); [2003] HCA 56. See generally Leighton McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14.

7. The second constitutional imperative is found in ss 18 and 85 of the Constitution Act 1975, which impose manner and form restrictions on the making of any law that repeals, alters or varies that part of the Constitution Act that concerns the jurisdiction of the Supreme Court. No party before us submitted that the requirements of the Constitution Act were relevant to the construction of s 39 of the PE Act. However, the potential impact of these constitutional requirements on the validity and operation of s 39 has been considered both by this Court and the Parliament.

8. Each imperative pulls in a different direction: Kirk preserves the jurisdiction of the Supreme Court to review for jurisdictional error; the Constitution Act also constrains legislative action to limit the jurisdiction of the Court, but provides the mechanism for the legislature to do so if it chooses.

9. It is convenient to discuss the two constitutional imperatives in reverse order.

Limiting the jurisdiction of the Court in planning matters

1. Section 85 of the Constitution Act provides for the powers and jurisdiction of the Supreme Court of Victoria. In 1991, s 85 was amended to include manner and form requirements for provisions repealing, altering or varying s 85 — that is, provisions limiting the jurisdiction of the Supreme Court. Since 1991, a provision of a Bill which excludes or restricts the Supreme Court’s judicial review jurisdiction has no effect unless the requirements of s 85(5) are satisfied.[64] Those requirements include an express statement in the relevant Act, expressly referring to s 85 of the Constitution Act and expressly stating an intention to repeal, alter or vary the section.[65]

   [64]Constitution Act 1975, s 85(6).

   [65]Constitution Act 1975, s 85(5)(a).

2. Section 85 of the Constitution Act did not exist when the PE Act was first enacted in 1987. At that time, s 39 provided:

   Defects in procedure

   (1)A person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division in relation to an amendment which has not been approved unless the person is substantially or materially disadvantaged by the failure.

   (2)An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division.

   (3)Any action in respect of a failure to comply with Division 1 or 2 or this Division must be taken before and determined by the Administrative Appeals Tribunal.

3. The Planning and Environment (Amendment) Act 1989 replaced the former s 39 with a new s 39 in substantially its current form. The purpose of the replacement was to make clear that the powers of the AAT in relation to a matter referred to it under s 39(1) did not extend to it acting as a planning authority. The AAT was not tasked with making or reviewing the merits of planning scheme amendments. However, its powers did extend to resolving disputes about whether planning scheme amendments had been made in compliance with pt 3 divs 1–3 or pt 8, at least up to the point of approval. The second reading speech for the amending bill recorded the following:

   Recently, the tribunal has interpreted the Act as allowing it to direct a planning authority to place an amendment on exhibition. This places the Administrative Appeals Tribunal in the role of a planning authority, which was never intended.

   The Act provides a separate mechanism of review of amendments by an independent panel, and amendments ultimately require the Minister's approval. The tribunal does have an important role in resolving disputes of a procedural nature — that is specifically set out in the revised section 39 of the Act. The proposed amendments make this quite clear, and set out the range of disputes to be resolved by the tribunal.[66]

   [66]Victoria, Parliamentary Debates, Legislative Assembly, 12 October 1989, 1514–5 (Thomas Roper, Minister for Planning and Environment).

4. At the time of the 1989 amendment, s 85 of the Constitution Act still contained no requirement for a statement of Parliament’s intention to limit the Supreme Court’s jurisdiction and, as a result, the Planning and Environment (Amendment) Act 1989 contained no express statement that Parliament intended by s 39(8) to limit the jurisdiction of the Supreme Court.[67] It was and is nonetheless the case that an ‘intention to alter the settled and familiar role of the superior courts must be clearly expressed’.[68]

   [67]It is noted that at that time, s 18(3) of the Constitution Act operated to void any Bill whose provisions purported to repeal, alter or vary s 85 and which was not passed by an absolute majority. Both the Speaker of the Legislative Assembly and President of the Legislative Council were of the view that the Planning and Environment (Amendment) Bill was required to be passed by an absolute majority: Victoria, Parliamentary Debates, Legislative Assembly, 15 November 1989, 2316 (Ken Coghill, Speaker); Victoria, Parliamentary Debates, Legislative Council, 17 November 1989, 1562–3 (Alan Hunt, President). The second and third readings of the Bill were carried by an absolute majority in both Houses.

   [68]Probuild (2018) 264 CLR 1, 14 [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 4.

5. Such an intention was clearly expressed in s 7 of the Planning Appeals (Amendment) Act 1987, which added a new pt VA to the Planning Appeals Act 1980 dealing with jurisdiction in planning matters. Section 66A(1) of the Planning Appeals Act provided, among other things, that the Supreme Court did not have jurisdiction to hear or determine any proceedings if the AAT had power to review the exercise of the power in question. Under s 66A(2), the Supreme Court could direct that s 66A(1) did not apply to proceedings, if it was of the opinion that there were special circumstances which justified the Court hearing the proceedings.

6. In 1998, s 66A of the Planning Appeals Act was repealed and replaced by s 52 of the VCAT Act, which provides:

   Limitation of courts’ jurisdiction in planning matters

   (1) The Supreme Court, the County Court or the Magistrates’ Court does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment if—

   (a) the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise, that power; and

   (b) the matter—

   (i) has not been the subject of a proceeding in the Tribunal; or

   (ii) if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal; or

   (iii) if it has been determined by the Tribunal, the time for appeal against an order of the Tribunal in the proceeding has not expired; or

   (iv) if an appeal has been brought against an order in the proceeding, the appeal has not been determined.

   (2) If the Supreme Court, the County Court or the Magistrates’ Court is of the opinion that there are special circumstances that justify the hearing by the Court of a proceeding to which subsection (1) applies, the court may direct that subsection (1) does not apply to that proceeding.

   (3) If a court determines a proceeding to which subsection (1) applies but does not give a direction under subsection (2), nothing in this section invalidates the decision of the court.

   (4)In this section—

   planning enactment means—

   …

   (f) Planning and Environment Act 1987 (except sections 94(5) and 105);

   …

7. Section 160 of the VCAT Act provides that it is the intention of s 52 to alter or vary s 85 of the Constitution Act.

8. Curiously, neither party referred to s 52 of the VCAT Act in their submissions concerning the referred questions in this proceeding.

9. In addition to s 66A of the Planning Appeals Act and s 52 of the VCAT Act, amendments to the PE Act in 1996 indicated that Parliament intended by s 39 of the PE Act to limit the Supreme Court’s jurisdiction.

10. The Planning and Environment (Planning Schemes) Act 1996 added pt 1A to the PE Act, to provide for the preparation and approval of the VPPs, a set of standard planning provisions for inclusion in planning schemes.[69] Within pt 1A, ss 4F and 4J extended the application of ss 38 and 39 of the PE Act to the amendment of the VPPs. A new s 201D(2) of the PE Act stated that it was the intention of ss 4F and 4J to alter or vary s 85 of the Constitution Act — that is, to limit the jurisdiction of the Supreme Court.

    [69]See [20] above.

11. In his second reading speech, the Minister explained that s 39(7) and (8) ‘already contain a restriction on the jurisdiction of the Supreme Court’ in respect of amendments to planning schemes, and that the amendments would simply extend that restriction to amendments to the VPPs.[70] The Minister continued:

    The action that a person may bring under section 39(8) requires referral of the matter to the Administrative Appeals Tribunal for determination. Parliament has already vested jurisdiction in the Administrative Appeals Tribunal as the appropriate forum to deal with planning matters and has, correspondingly, already limited the jurisdiction of the Supreme Court in relation to planning scheme amendments and permit appeals. The primary reason for this is to allow for relevant planning matters to be decided quickly and inexpensively by a specialist tribunal.[71]

    [70]Victoria, Parliamentary Debates, Legislative Assembly, 14 November 1996, 1247 (Robert Maclellan, Minister for Planning and Local Government).

    [71]Victoria, Parliamentary Debates, Legislative Assembly, 14 November 1996, 1247 (Robert Maclellan, Minister for Planning and Local Government).

12. In our view, this history reveals a clear legislative intention to restrict the jurisdiction of the Supreme Court in relation to planning matters, including reviewing compliance with the statutory requirements for amending planning schemes. Section 39 must be construed having regard to this intention and purpose.

13. Having regard to this intention and the plain text of s 39, there can be little doubt that the proceeding brought by the applicants in the Supreme Court is an action within the terms of s 39(8). The word ‘action’ has a broad meaning; it is a generic term that ‘includes every sort of legal proceeding’.[72]

    [72]Re Smith; Ex parte Commissioners of Taxation (1908) 8 SR (NSW) 246, 249, discussing Clarke v Bradlaugh (1881) 7 QBD 38, 50, 57 (Bramwell and Lush LJJ) and Clarke v Bradlaugh (1883) 8 App Cas 354, 361, 374 (Selbourne LC and Blackburn LJ). See also Malek Fahd Islamic School Ltd v Minister for Education and Early Learning (2023) 111 NSWLR 585, 593–4 [31] (Basten AJA, Ward P and Meagher JA agreeing at [1]–[2]); [2023] NSWCA 143; Ketchell v Wynch [2002] 2 Qd R 560 [27]–‍[31] (Thomas JA, Davies and Williams JJA agreeing at [1], [43]); [2001] QCA 391.

14. Each of the grounds in the originating motion is anchored to an alleged failure to comply with one or more of the provisions in pt 3 divs 1–3 or pt 8 of the PE Act.

    (a)In their first ground, the applicants allege that the recommendation made in the Panel’s report, that the Council adopt the Amendment, was legally unreasonable and hence invalid for jurisdictional error. This amounts to an allegation that the Panel failed to perform its statutory function under s 25, which is in pt 3 div 2 of the PE Act.

    (b)The second ground alleges that the Panel failed to consider the applicants’ submissions and thereby committed a jurisdictional error. The failure to consider a submission that the Panel was bound to consider may be characterised as a failure to accord procedural fairness and therefore a failure to comply with s 161 of the PE Act, which is found in pt 8.[73]

    (c)The third ground is a complaint that the Panel gave inadequate reasons for findings and recommendations in its report, so that its report is affected by jurisdictional error and error of law on the face of the record. The applicants contend that a requirement to give adequate reasons is to be implied from the scheme of the PE Act, in particular ss 25, 26, 27 and 29, which are found in pt 3 divs 2 and 3.

    (d)Ground four alleges that, because the Panel’s report was invalid, the Council’s adoption of the Amendment was also invalid. The ground is based on s 27(1), in pt 3 div 2 of the PE Act, which requires a planning authority to consider the panel’s report before deciding whether or not to adopt the amendment.

    (e)The applicants’ fifth ground is that, because the Panel’s report and the Council’s adoption of the Amendment were invalid, the Minister lacks power to approve the Amendment.

    [73]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ); [2003] HCA 26; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 439 [23] (Bell, Gageler and Keane JJ); [2019] HCA 3.

1. Given that there is clear legislative intent in s 39(8) to restrict the jurisdiction of the Supreme Court in planning matters, none of the grounds in the originating motion would be competent. The applicants would have to make their complaints about the Panel’s report and the Council’s adoption of the Amendment to the Tribunal, under s 39(1) of the PE Act.

2. However, there is an important supervening consideration.

The Court’s supervisory jurisdiction cannot be removed by Parliament

1. The second constitutional imperative is that identified by the High Court in Kirk, that the supervisory jurisdiction to grant relief in respect of jurisdictional error is a defining characteristic of a State Supreme Court, and it is beyond the legislative power of the Parliament to remove or limit that jurisdiction.[74]

   [74]Kirk (2010) 239 CLR 531, 580–1 [96]–[100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1.

2. This limit on State legislative power was not apparent in 1987 when s 66A was included in the Planning Appeals Act, in 1988 when Mietta’s was decided, or in 1989 when s 39(8) was enacted in its current form. That was still the situation in 1996, when ss 4F, 4J and 201D(2) were added to the PE Act, and in 1998 when the VCAT Act, including s 52, was enacted. However, it is now settled that legislation ‘which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power’.[75]

   [75]Kirk (2010) 239 CLR 531, 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1.

3. Section 39(8) is to be construed so as not to exceed the legislative power of Victoria, giving it operation only to the extent to which it is not in excess of that power.[76] As a result, ‘action’ in s 39(8) must be read not to extend to a judicial review proceeding in the Supreme Court seeking relief for jurisdictional error.

   [76]Interpretation of Legislation Act 1984, s 6(1).

4. As discussed, reading s 39 as broadly as its language would permit would produce the consequence that there would be no ability to bring a proceeding in the supervisory jurisdiction of the Court alleging that, in taking the steps that they have, the Council and the Panel exceeded their jurisdiction. If that is the consequence then, in accordance with Kirk, the section would either be invalid or be required to be read down or disapplied in respect of any proceeding that alleges jurisdictional error.

5. The Minister submits, however, that this consequence does not follow, and Kirk is not engaged, because non-compliance with the requirements of pt 3 divs 1–3 and pt 8 is not jurisdictional in nature. This is because s 39(7), contrary to East Melbourne, is a ‘no‑invalidity’ provision and non-compliance is therefore not jurisdictional. She submits that this extends to non-compliance with any of the steps that precede approval of a planning scheme amendment under s 35 of the PE Act.

Section 39(7) does not validate anterior steps

1. We do not accept the Minister’s contention that s 39(7), by necessary implication, extends to the steps that precede the approval.

2. Section 39(7) does not, in its terms, apply to any step taken before an amendment is approved by the Minister. It operates only in respect of the approval. The only thing that the sub-section says is ‘not made invalid’ by a failure to comply is ‘an amendment which has been approved’. Section 39(7) does not address the different question as to whether compliance with relevant steps in pt 3 divs 1–3 or pt 8 condition the jurisdiction of a planning authority or a panel to exercise their statutory powers. Thus, for example, s 39(7) is not directed to the adoption by a council of an amendment under s 29.

3. Had it been Parliament’s intention to apply s 39(7) to specified anterior steps, or to all of them, it could easily have expressed that intention in the text of the provision. Instead, it provided only that an amendment which has been approved is not made invalid by any failure to comply with the anterior steps in pt 3 divs 1–3 or the provisions in pt 8 concerning the appointment of panels and the conduct of their hearings. There is no obvious textual basis for an implication that s 39(7) applies to the anterior steps in the amendment process, and neither context nor purpose support such an implication.

4. Although the Minister has the ultimate authority to approve or not approve a proposed amendment by making a decision which is subject to parliamentary oversight, the statutory process is not limited to a single ‘jurisdiction’ vested in the Minister. Rather, the PE Act has three entities involved in separate and discrete steps: the planning authority (usually a council), a panel, and the Minister. Each entity has distinct functions to perform in accordance with the PE Act, and each is an important component of the overall statutory process for amending a planning scheme. It is the duty of the Supreme Court, in a properly constituted suit, to declare and enforce the law that applies to each step in the amendment process, and the exercise by each entity of its own statutory powers.

5. The Minister posed the question, ‘What would be the point of having invalidity affecting those anterior steps if they cannot affect the approval?’. The point is that Parliament has prescribed a ‘clear procedure for amending planning schemes’, which provides for ‘appropriate public participation in decision making’ and ensures that those affected by a proposed amendment ‘receive appropriate notice’.[77] The outcome of that process is not a foregone conclusion, as the Minister’s submissions appeared to assume.

   [77]PE Act, s 4(2)(h), (j), set out at [19] above.

6. To the contrary, pt 3 contemplates that an amendment approved under s 35 may not be the same as the amendment of which notice was given under pt 3 div 1. There are several steps in the process where public participation may bring about a change to the proposed amendment:

   (a)Where a submission requests a change to the amendment, the planning authority may refer the submission to a panel for consideration.[78]

   (b)After conducting fair and public hearings, the panel may recommend adopting the amendment with or without changes.[79]

   (c)The planning authority must consider, but is not bound to accept, the panel’s recommendations.[80]

   (d)Rather than adopting the amendment, the planning authority may decide to abandon it.[81]

   (e)The Minister may receive further submissions on an amendment submitted by a planning authority, and may approve the amendment with or without changes.[82]

   [78]PE Act, s 23.

   [79]PE Act, ss 24, 25, 160, 161.

   [80]PE Act, s 27.

   [81]PE Act, ss 23(1), 28.

   [82]PE Act, ss 34, 35.

7. The process set out in pt 3 of the PE Act is designed to expose a proposed amendment to public scrutiny, to allow input to interested persons, and to ensure their input is considered before the amendment is adopted and approved. Subject to the exemption power in s 20, pt 3 assumes that there is intrinsic value in subjecting a proposed amendment to the prescribed process before the amendment becomes part of a planning scheme.

8. It is the case that the steps taken by a council or panel do not have final legal or operative effect, being antecedent to an approval. That does not mean that they lack legal significance or that, putting s 39(8) to one side, they could not be subject to judicial review. An order in the nature of certiorari, which has the effect of quashing a decision or exercise of power, is generally only available in respect of an exercise of power that has legal effect.[83] That said, certiorari may be available to quash an exercise of power or anterior decision which is incorporated into the final decision. This may occur where the anterior decision is made a mandatory relevant consideration in the exercise of the ultimate power. That is the position here, as the Minister can only approve the Amendment after it (or a version of it) has been adopted by the Council,[84] the Council having considered the Panel report before making the adoption decision.[85]

   [83]R v Collins; Ex parte ACTU-SoloEnterprises Pty Ltd (1976) 50 ALJR 471, 475 (Stephen J); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 358 [100] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 41, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, 461 [48] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ); [2003] HCA 1.

   [84]PE Act, s 31(1).

   [85]PE Act, s 27(1).

9. Further, as Ainsworth v Criminal Justice Commission[86] and Plaintiff M61/2010E v Commonwealth[87] demonstrate, the supervisory jurisdiction of the Court may be engaged where the impugned decision or conduct affects interests short of legally enforceable interests such as reputation. In such cases declaratory relief may be available.

   [86](1992) 175 CLR 564; [1992] HCA 10.

   [87](2010) 243 CLR 319; [2010] HCA 41.

10. Section 39(1) also supports the conclusion that the steps taken by the Council and Panel have an operative effect when they are undertaken. Section 39(1) gives standing to bring an action in the Tribunal to a person who is substantially or materially affected by a failure to comply with pt 3 divs 1–3 or pt 8. Once seized of an application, the Tribunal has the power to determine the matter. The existence of this particular form of review suggests that Parliament recognised that a non-compliance with a step anterior to approval might have a significant effect on interests.

11. There is no incoherence in treating the approval of an amendment differently from the anterior steps or decisions. The policy reasons underpinning a provision that preserves the validity of an approved amendment do not apply to the anterior steps. An approved amendment will have been subject to parliamentary oversight and may have been relied on by third parties at significant cost or inconvenience. The anterior steps do not have the legal effect of an approved amendment and confer no authority to use or develop land in anticipation of any subsequent approval.

12. On that basis, s 39(7) could not save an anterior step in the amendment process from being invalid for jurisdictional error. If s 39(7) is truly a ‘no-invalidity’ provision, it would only have that effect after an amendment has been approved. Before then, a failure to comply with a requirement of pt 3 divs 1–3 or pt 8 could be the basis for an injunction to restrain the Minister from approving the amendment, even if that failure would not invalidate the amendment after approval.[88] This circumstance was expressly contemplated by the High Court in Project Blue Sky.[89]

    [88]Project Blue Sky (1998) 194 CLR 355, 393 [100] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628, 637 [25] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ); [2024] HCA 13.

    [89](1998) 194 CLR 355, 393 [100] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

13. The policy considerations of certainty and timeliness in the overall process of amending planning schemes may mean that judicial review is undesirable in a given case. Judicial review of the anterior steps may delay consideration of a proposed amendment, but the mere making of an application for review does not prevent the Minister from continuing with that consideration or even approving the amendment. Such considerations of certainty and timeliness may inform the discretion to grant or withhold relief, but they provide no sound reason for denying jurisdiction to the Court. Moreover, the existence of a right of review by the Tribunal, albeit limited, shows that the PE Act allows for the possibility of delay in the approval process and that it does not prioritise speed and certainty over all other considerations.

14. Finally, the availability of a form of review in the Tribunal and the possibility of an appeal on a question of law from any decision of the Tribunal does not supplant or exhaust the supervisory jurisdiction of the Court. Although there may be an overlap between an appeal on a question of law and judicial review for jurisdictional error, the two forms of jurisdiction are conceptually distinct.

15. That is not to say that the availability of review in the Tribunal is irrelevant. As the High Court held in Federal Commissioner of Taxation v Futuris Corporation Ltd,[90] the availability of a statutory appeal mechanism may mean that there is no reason for the Court to act in the exercise of its supervisory jurisdiction and, in an appropriate case, any proceeding invoking that jurisdiction should be stayed.[91]

Error of law on the face of the record

[90](2008) 237 CLR 146; [2008] HCA 32.

[91]Futuris (2008) 237 CLR 146, 153 [10] (Gummow, Hayne, Heydon and Crennan JJ); [2008] HCA 32.

1. As noted, the applicants’ third ground of review is that the Panel gave inadequate reasons. They claim that this amounted to a jurisdictional error or, in the alternative, an error of law on the face of the record such that the Panel’s report is amenable to being quashed by an order in the nature of certiorari.

2. The Supreme Court’s jurisdiction to review a decision on the basis of an error of law on the face of the record is not constitutionally entrenched, and can be ousted by statute.[92] As the High Court made clear in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd:

   [a]n intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction; and in the resolution of such a question, context is, as always, important.[93]

   [92]Probuild (2018) 264 CLR 1, 13 [30] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 4.

   [93]Probuild (2018) 264 CLR 1, 14 [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 4 (citations omitted).

3. The language of s 39 is broad enough to cover review for error of law on the face of the record and, as discussed, the legislative history shows a clear intention to exclude the jurisdiction of the Court to the extent possible. With one possible qualification, we consider that s 39(8) precludes the bringing of action alleging an error of law on the face of the record in the Supreme Court.

4. The possible qualification is the discretion in s 52(2) of the VCAT Act, to direct that the ouster of jurisdiction in s 52(1) does not apply to a proceeding where the Court is ‘of the opinion that there are special circumstances that justify the hearing by the Court’ of the proceeding. In Antoniou v Roper, Murphy J considered that the former s 39(3) of the PE Act did not apply because he had made a direction under s 66A(2) of the Planning Appeals Act that there were special circumstances that justified the hearing of the proceeding by the Supreme Court.[94] This suggests that the current s 39(8) of the PE Act may have effect subject to s 52 of the VCAT Act. The parties did not address the interaction between the two provisions, and we would prefer to leave the question for an occasion when it has been fully argued.

   [94]Antoniou v Roper (1990) 70 LGRA 351, 372. See also Grollo [1993] 1 VR 627, 647.

Answer to Question 1

1. The answer to question 1 is ‘no’. Section 39(8) of the PE Act does not prevent judicial review for jurisdictional error, and all of the applicants’ grounds of review allege, or are consequential upon, jurisdictional error. It will be a matter for the trial judge whether the alleged defects in the Panel’s report and the Council’s adoption amount to jurisdictional error and, if so, what relief should be granted having regard to any discretionary considerations.

2. Section 39(8) precludes judicial review for error of law on the face of the record, possibly subject to a direction under s 52(2) of the VCAT Act. However, none of the applicants’ grounds of review depends solely on an alleged error of law on the face of the record.

Question 2

1. The first question can be answered without having to consider whether the decision in East Melbourne was plainly wrong as to the construction of s 39 of the PE Act. It is therefore not necessary to answer the second question.

2. We observe that since East Melbourne was decided, there have been many challenges to the validity of planning scheme amendments in judicial review proceedings in the Trial Division of the Court. In all of those cases, the contention was that the Minister’s exemption decision under s 20(4) of the PE Act was invalid and, as a result, the planning scheme amendment was also invalid.[95] No other plaintiff has succeeded in establishing the invalidity of an exemption decision, and so there has been no occasion to apply the interpretation of s 39(7) of the PE Act in East Melbourne.

   [95]Lower Our Tracks Inc v Minister for Planning (2016) 219 LGERA 352; [2016] VSC 803; Mackenzie v Head, Transport for Victoria [2020] VSC 328; W Everton Park Pty Ltd v Minister for Planning [2021] VSC 465; Tok Holdings Pty Ltd v Minister for Planning [2021] VSC 470; Melton City Council v Minister for Planning [2021] VSC 700; Moorabool Shire Council v Minister for Planning [2021] VSC 701; Hume [2022] VSC 187. See also Dustday Investments Pty Ltd v Wynne (Minister for Planning) (2015) 207 LGERA 188; [2015] VSC 101, in which there was a challenge to the validity of a panel report in respect of an amendment that had not yet been approved.

3. However, the interpretation has been applied by the Tribunal in its jurisdiction under s 39(1) of the PE Act. Since East Melbourne, the Tribunal has taken the view that s 39 is intended to distinguish between procedural defects, which can be dealt with by the Tribunal under s 39, and substantive errors that fall outside s 39.[96] This line can be difficult to draw. For example, the Tribunal has held an alleged failure by a panel to observe the rules of natural justice to be a procedural defect that can be reviewed under s 39, while an alleged breach of natural justice by a council is a substantive error that is beyond the Tribunal’s jurisdiction.[97]

   [96]Coastal Estates Pty Ltd v Bass Coast Shire Council (2010) 177 LGERA 390, 399–401 [29]–[37] (Dwyer DP); [2010] VCAT 1807 (‘Coastal Estates’). See also Rockford Constant Velocity Pty Ltd v Melbourne City Council [2024] VSC 343, [64]–[66] (Quigley J).

   [97]Coastal Estates (2010) 177 LGERA 390, 401–2 [40]–[43] (Dwyer DP); [2010] VCAT 1807. Cf 309a Queens Pde Pty Ltd v Yarra City Council [2020] VCAT 518, [82]–[84] (Member Djohan).

4. In Hume City Council v Minister for Planning, Richards J (as her Honour then was) expressed reservations about the reasoning of the majority in East Melbourne in relation to the effect of s 39(7).[98] While those reservations remain, and are shared by the other members of this Court, it is not necessary to resolve them in this proceeding. The question whether there is compelling reason to depart from East Melbourne should be left for a matter in which it directly arises.

   [98]Hume [2022] VSC 187, [29].

Disposition

1. We would answer the reserved questions as follows:

   Question 1

   No.

   Question 2

   Unnecessary to answer.

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SCHEDULE OF PARTIES

IGA RETAIL SERVICES PTY LTD (ACN 002 454 686)	First applicant
SHEPPARTON PTY LTD (ACN 620 846 184)	Second applicant
and
MINISTER FOR PLANNING	First respondent
GREATER SHEPPARTON CITY COUNCIL	Second respondent
KATHY MITCHELL AM AND PETER MARSHALL (AS MEMBERS OF A PANEL APPOINTED BY THE MINISTER FOR PLANNING UNDER SECTION 153 OF THE PLANNING AND ENVIRONMENT ACT 1987)	Third respondent
LASCORP INVESTMENT GROUP PTY LTD	Fourth respondent