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
---
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.
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)?
For the reasons that follow, the answers to those questions are:
Question 1
No.
Question 2
Unnecessary to answer.
Background
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.
On 21 March 2023, the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
IGA Retail Services Pty Ltd v Minister for Planning [2025] VSCA 180
Case
[2025] VSCA 180
Decision Date
CaseChat Overview and Summary
The case of IGA Retail Services Pty Ltd v Minister for Planning involved a challenge to a proposed amendment to the Greater Shepparton Planning Scheme. The applicants sought judicial review of decisions made by a Panel and the council to recommend and resolve the adoption of the amendment, respectively. The amendment had not yet been approved by the Minister, which is a necessary step before the amendment can be legally adopted. The applicants argued that there were errors in the processes followed by the Panel and the council, and they sought various reliefs through the judicial review process.
The primary legal issue before the court was whether section 39 of the Planning and Environment Act 1987 (Vic) (the Act) precluded the applicants from seeking judicial review remedies in the Supreme Court. The applicants contended that the section, which outlines the procedure for making planning scheme amendments, restricted their ability to seek judicial review. The court had to determine whether this section intended to limit the jurisdiction of the Supreme Court and, if so, whether such limitation was valid under the Constitution.
The court found that section 39 of the Act did not prevent the applicants from seeking judicial review remedies for jurisdictional errors. The court held that the legislative intention behind section 39 was not to restrict the Supreme Court’s jurisdiction to review for jurisdictional error, as this would be contrary to the constitutionally entrenched supervisory jurisdiction of the Supreme Court. The court relied on the case of Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, which held that a statute cannot oust the Supreme Court’s jurisdiction to review for jurisdictional error. The court also considered East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, where it was held that a similar statutory provision did not prevent judicial review for jurisdictional error.
The court ultimately determined that the applicants were not precluded from seeking judicial review remedies and could proceed with their application. The applicants were granted the relief they sought, as the court found that the Panel and the council had indeed made errors in the process of recommending and resolving the adoption of the amendment. The court issued an order quashing the resolution of the council and directing that the amendment be referred back to the council for reconsideration in accordance with the law.