The Sisters Wind Farm Pty Ltd v Moyne Shire Council

In the matter of The Sisters Wind Farm Pty Ltd v Moyne Shire Council, the Supreme Court of Victoria addressed a significant dispute regarding the law applicable to a planning permit application in the context of a remitted proceeding. The appellant, The Sisters Wind Farm Pty Ltd, sought a declaration that the Victorian Civil and Administrative Tribunal (VCAT) should apply the law in effect at the time of the original application when determining the case on remittal. The dispute arose after VCAT had ordered a remittal of the proceeding to itself for reconsideration in light of new evidence, with the remittal order specifying the issues to be addressed. The changes in the planning scheme post-remittal posed a challenge in determining the applicable law.

The court was tasked with resolving whether the Tribunal had the jurisdiction to review the decision to refuse a permit under the limited remittal terms and whether the applicant had an accrued right to have its application assessed according to the law prevailing at the time the review application was lodged. This issue hinged on the interpretation of statutory provisions, including sections of the Interpretation of Legislation Act 1984 (Vic), the Victorian Civil and Administrative Tribunal Act 1998 (Vic), and the Planning and Environment Act 1987 (Vic). The court also considered relevant case law, particularly Esber v Commonwealth and Unger v City of Malvern, which dealt with the application of law in the context of administrative tribunals.

The Supreme Court found that the remittal order did not confer upon VCAT the jurisdiction to review the decision to refuse the permit under the limited remittal terms. It determined that the applicant did not have an accrued right to have the application assessed under the law in force at the time the review application was made. The court held that the remittal order's terms and the statutory framework did not support the application of the law as it stood at the time of the original application. Consequently, the appeal was dismissed, and the decision of VCAT was upheld.