John Raymond Anderson and Demitra Anderson v Stonnington City Council

The applicants, John Raymond Anderson and Demitra Anderson, were in dispute with Stonnington City Council over an amendment to a subordinate instrument that extended a heritage overlay to the applicants' property while development works were in progress. The applicants appealed to the Supreme Court of Victoria, arguing that the amendment was invalid due to the absence of a statutory right to complete the works and that the works did not constitute a 'use' for the purposes of the Planning and Environment Act 1987. The court was required to decide whether the applicants had a statutory right to complete the works under the Interpretation of Legislation Act 1984 s 28(2)(e) and whether the development works constituted a 'use' under the Planning and Environment Act 1987 s 6(3)(d). The court also had to determine whether the applicants were entitled to leave to amend their application for leave to appeal.

The court found that the applicants' asserted right to complete the development works was not a 'right' within the meaning of the Interpretation of Legislation Act 1984 s 28(2)(e). The court held that the right to complete the works was not identified by reference to the instrument and that a common opportunity to take advantage of the absence of regulation did not constitute a 'right'. The court applied Robertson v City of Nunawading [1973] VR 819 and held that the asserted right was a mere opportunity. The court also found that the development works did not constitute a 'use' under the Planning and Environment Act 1987 s 6(3)(d), applying Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448. The court granted leave to amend the application for leave to appeal as the proposed amendment raised a confined legal issue and any evidentiary deficiencies to the applicants’ disadvantage could be remedied by the amendment.

The court dismissed the appeal, finding that the amendment to the subordinate instrument was valid and that the applicants did not have a statutory right to complete the development works. The court held that the applicants' arguments were not well-founded and that the amendment did not contravene any statutory provisions. The applicants were ordered to pay the respondents' costs of the appeal.