Jason Pizer QC of counsel (on 29 November 2017), instructed by Simon Nixon and associates, solicitors

John Rantino of Maddocks lawyers, assisted by Gareth Gale, Council officer

Application for declarations under ss 149A and/or 149B of the Planning and Environment Act 1987.

The declarations relate generally to the issue of whether works authorised under building permits prior to the introduction of a Heritage Overlay can lawfully continue without a planning permit being obtained under that overlay.

The land at 21 William Street, South Yarra is an irregular shaped residential lot with a street frontage of approximately 15.3 m, and an average depth of approximately 44.6 m. The rear of the land backs onto 'Lovers Walk', adjacent to the Frankston-Cranbourne railway line.

The land contains an Italianate villa dating from the 1890s. A large part of the residence has been demolished, and the residence has been substantially rebuilt and/or renovated.

1. This proceeding essentially concerns the lawfulness of ongoing building works following the introduction of a planning permit requirement. The background to the matter is quite complex. However, stripped of these complexities, the determinative facts are relatively straightforward.
2. The applicants Mr and Mrs Anderson purchased the land at 21 William Street South Yarra in 2012 (Land) with the intent of renovating the two-storey Italianate villa on the Land as their residence.
3. The Land has at all material times been zoned 'General Residential' under the Stonnington Planning Scheme, for which the Stonington City Council (Council) is responsible authority under the Planning and Environment Act 1987 (P&E Act).
4. In late 2014, three relevant building permits were issued by private building surveyors under the Building Act 1993 (Building Act):
   • BS-U 1026/215142/10, dated 3 December 2014, authorising works to the front veranda (Veranda Permit).
   • BS-U 1026/215118/0, dated 10 November 2014, authorising works for a garage and pavilion at the front of the site (Pavilion Permit).
   • BS-U 1165/20141384/1, dated 22 December 2014, authorising 'Stage 1' Works comprising partial demolition of the main residence, construction of ground floor works, and the first floor sub-frame (Stage 1 Building Permit).
5. At the time the three building permits were issued in 2014, and at the time building works commenced under each of these three building permits, there was no requirement for a planning permit for any of the works under the Stonnington Planning Scheme, either under the zone or any other controls. At that time, there was no Heritage Overlay affecting the land.
6. On 21 May 2015, through Amendment C204, a site-specific Heritage Overlay (HO462) was included in the Stonnington Planning Scheme and gazetted to commence operation. HO 462 introduced for the first time, from that date, a requirement for a planning permit to be obtained for demolition, and for buildings and works.
7. The Council had attempted to introduce an interim heritage control at an earlier time (from at least July 2014) but had been required by the Minister for Planning to undertake a formal planning scheme amendment process. The Andersons participated in that process, including being represented by counsel and calling expert heritage evidence before a panel, and maintained an objection to the introduction of the heritage control and planning permit requirement.
8. As at the time of introduction of HO462, the Andersons say that they had undertaken approximately $720,000 of building works pursuant to the building permits, including all of the works in relation to the Veranda Permit, and a large portion of the works under the Pavilion Permit. They had commenced some of the works under the Stage 1 Building Permit.
9. It is common ground that all of the works undertaken prior to 21 May 2015 were lawful, on the basis that the works were undertaken pursuant to valid building permits, and at a time when there was no requirement for a planning permit. As I have indicated, works under the Veranda Permit were wholly completed within this time, and are not therefore in issue in the proceeding.
10. The Council asserts that, following the commencement of HO462 on 21 May 2015, the Andersons could not lawfully continue building works on the Land, including uncompleted works under the Pavilion Permit and the Stage 1 Building Permit, without first obtaining a planning permit under the new planning control. The Council has communicated to the Andersons that they should cease works until a planning permit is obtained, but the Council has not undertaken any formal enforcement action.
11. Conversely, the Andersons assert that they are lawfully able to continue and complete the balance of the works authorised under the Pavilion Permit and the Stage 1 Building Permit. Indeed, they completed works under the Pavilion Permit in September 2015, and they have continued to undertake works under the Stage 1 Building Permit.
12. Sections 149A and/or 149B of the P&E Act enable a person such as the Andersons to apply to VCAT for a determination or declaration in certain circumstances, and the Andersons have made an application, in the alternative, under both provisions. The jurisdiction of VCAT is not contested by the Council.
13. The Andersons seek declarations from VCAT to the following general effect:
    • that the works commenced pursuant to the Pavilion Permit and the Stage 1 Building Permit may be lawfully continued and completed without the necessity for planning permission.
    • that the Andersons have acquired accrued lawful rights to continue with and complete the building works, by reason of having substantially commenced those works prior to the introduction of HO462.
    • that the gazettal of HO462 did not at any relevant time, and does not at the present time, require planning permission for the carrying out of building works on the Land.

1. I indicated earlier that the background to this matter is complex. I have omitted from the opening summary above a number of matters concerning variations to the building permits, periods when the works ceased for a time or where different building surveyors took different views about the intervening planning control, and some decisions of the Building Appeals Board and related Supreme Court proceedings. There were also other disputes between the Andersons and the Council - for example, concerning the ownership and/or use of a right-of-way adjacent to the Andersons land, which also became the subject of Supreme Court proceedings. Sadly, Mr Anderson also suffered life-threatening injuries as the result of a vicious assault by an intruder on the building site, with associated emotional stress for Mrs Anderson. These matters have all had a bearing on the timing of works, and in the timing of these proceedings and the hearings.
2. I have considered these matters to the extent relevant. However, without seeking to underplay any of these matters, I do not find them ultimately determinative to the more straightforward legal question that I have to consider - namely, whether the introduction of HO462 on 15 May 2015 had the effect of requiring the Andersons to obtain a planning permit before they could lawfully continue and complete the works authorised under the building permits.
3. More recently, on 18 July 2017, well after the commencement of HO462 and these proceedings, the Andersons were issued with a Stage 2 building permit, at the direction of the Building Appeals Board, authorising alterations and additions to the dwelling, including completion of the first floor rooms, roof and terrace (Stage 2 Building Permit). The Andersons have now undertaken substantial works in accordance with this further building permit, and they are continuing to undertake such works in the absence of obtaining a planning permit under HO462. The Andersons did not seek to amend this proceeding to deal with the Stage 2 Building Permit, although it became the subject of some discussion on the final day of hearing, and I will deal with it later in these reasons.
4. Before turning to the specific matters for which declaratory relief is sought, I also note that the matter is complicated by a number of changes in the Anderson's legal team over the course of the proceeding and, correspondingly, on the legal basis for the declarations. On the final day of hearing, the Andersons were represented by Mr Pizer QC who indicated that:
   • the Andersons no longer relied upon written submissions that had been filed on their behalf by Mr Southall QC and Mr Atkins, and
   • the Andersons relied upon written submissions that had been filed on their behalf by Mr Wren QC and Mr Munt, subject to qualifications advanced orally by Mr Pizer at the hearing. These were primarily that Mr Pizer withdrew an alternative argument in those submissions based on s 97O of the P&E Act. He also clarified that the Andersons sought to rely upon accrued rights under both the Pavilion Permit and the Stage 1 Building Permit. [The Wren/Munt submissions had referred only to the Pavilion Permit].
5. I have proceeded on this basis. For completion, I should perhaps add that the Andersons also withdrew an argument that the works fell within the scope of s 6(3) of the P&E Act and/or cl 63 of the planning scheme on the basis of something akin to an existing use right. Clearly, these proceedings relate to 'development' rather than 'use'.
6. Mrs Anderson was called to give detailed evidence about a number of background facts, many of which were not contested by the Council. Again, whilst I have had regard to the totality of that evidence, I consider that the brief outline of facts above is sufficient to demonstrate the legal question that I have to consider.
7. The Andersons also provided two additional witness statements, although the authors were not called or made available for cross-examination.
8. The first, from the Andersons' initial builder Frank Bleuming, deals with some uncontroversial factual issues about the commencement of works and Council inspections prior to the introduction of HO462. It also refers to additional building works continuing through to March 2016. In the early phase of the hearing, there was some attempt by the Andersons to use Mr Blueming's evidence to support its pleaded Statement of Facts that the building works had continued after the introduction of HO462 'with the knowledge and approval of the Council, its officers and agents'. This was a matter hotly contested by the Council, and the Andersons' counsel at the first hearing later withdrew any argument based on estoppel or Council 'approval'.
9. The second witness statement was from a building surveyor, Shane Leonard. Mr Leonard purported to give an expert opinion on the proper interpretation to be given to ss 20 and 24 of the Building Act - particularly in relation to the effect of a 'staged' building permit. Although Mr Leonard had completed the usual 'expert evidence' declaration as part of his statement, to the effect that no matters of significance had been withheld from the tribunal, both Mr Leonard and the Andersons failed to disclose that he had acted as an advocate for the Andersons in proceedings before the Building Appeals Board - a matter I discovered only by chance in reading a BAB report. Mr Leonard is not therefore an 'independent' witness. Moreover, whilst Mr Leonard may have practical experience as a building surveyor, he is non-expert in the ultimate legal question to be resolved. I requested that these matters be dealt with by the Andersons in submissions and/or when Mr Leonard was called. At the resumed hearing, the Andersons chose not to make any such submissions on this point or to call Mr Leonard. I have weighted his evidence accordingly.

1. The parties submissions in this proceeding focused, in substantial part, on the VCAT decision in Mrocki v Port Phillip City Council (No.2)[2], and cases referenced in that decision.
2. In Mrocki (No 2), I had found, amongst other things, that the commencement of demolition under a building permit did not create an 'accrued right' that enabled the demolition to continue following the introduction of an interim heritage control that required a planning permit for demolition. This was based upon an interpretation of ss 28(2)(d) and (e) of the Interpretation of Legislation Act 1984.
3. As the case summary for Mrocki (No 2) indicates, I found that the building permit had merely reflected the planning scheme provisions applying at the time it was issued. The building permit authorised demolition for the purposes of the Building Act, but it did not create a 'right' to demolish for planning purposes. Moreover, the pre-existing exemption from the requirement to obtain a planning permit (i.e. the absence of any pre-existing planning control over demolition on the land) did not create a 'right' (including a contingent right) for planning purposes. It only created an opportunity that could be taken advantage of for so long as the exemption existed in the planning scheme. The removal of the exemption through the introduction of the Heritage Overlay and planning permit requirement did not therefore impair any accrued right under the planning scheme, as no right previously existed.
4. In reaching this conclusion in Mrocki (No 2), I relied in part on earlier authorities such as Robertson v City of Nunawading[3]. There, the court had distinguished between a statutory control, and 'a mere gap in the field covered by the legislation which left the person concerned free of statutory control'. The court held that there was no 'right' to exemption or immunity from legislative action, and that 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 this principle.
5. The decision in Mrocki (No 2) has been followed in other decisions of VCAT, including by DP Gibson in Glenelg Shire Council v Printz Pty Ltd[4].
6. The Council submitted that the decisions in Mrocki (No 2) and Printz should be followed for reasons of comity and consistency, and because they were correct. The Andersons submitted that the decision in Mrocki (No2) had been incorrectly decided in two important respects, in part perhaps because the more nuanced arguments in this proceeding had not been put to VCAT in that case. I will deal with these two issues in turn.
7. I note for the record that the basis for the Andersons' application is now predicated solely on the contention that the Andersons had accrued a right for planning purposes to complete their proposed works on the Land, relying primarily upon s 28(2)(e) of Interpretation of Legislation Act 1984 and related common-law concepts. The Andersons did not ultimately pursue any contentions based upon s 28(2)(d) of that Act, or upon s 6(3) or s 97O of the P&E Act. I do not therefore deal with those latter matters.

An 'exemption' from a planning permit requirement, or an actual 'right' to develop under the planning scheme?

1. Section 28(2)(e) of Interpretation of Legislation Act 1984 provides that, where a subordinate instrument or a provision of a subordinate instrument is amended, the amendment shall not, unless the contrary intention appears, 'affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision'. As I have indicated, the Andersons claim an accrued right to develop the land without a planning permit.
2. It is self-evident from the wording of s 28(2)(e), that the relevant right must have already accrued under the same subordinate instrument or provision that is being amended. The Andersons cannot therefore rely upon any right accrued under the pre-existing building permits issued under the Building Act. They must demonstrate that there was a right to develop that separately existed under the planning scheme (being the specific subordinate instrument that was actually amended through the introduction of HO462), and that such a right had accrued by the time HO462 was introduced.
3. The Andersons' counsel at the resumed hearing conceded this. There is no right for planning purposes that arises solely by reason of the issue of the relevant building permits (i.e. the Pavilion Permit or the Stage 1 Building Permit) under the Building Act. This is sufficient to dispose of the first of the declarations that the Andersons had sought by reference to the building permits.
4. The Andersons nonetheless contended that it was wrong in Mrocki (No 2) to refer solely to there having been a pre-existing 'exemption' in the planning scheme from any requirement to obtain a planning permit for the development. In addition to the exemption, or perhaps because of the exemption, the Andersons contend that there was also a 'right' to develop the land for planning purposes, arising from the planning scheme.
5. At an initial level, this contention perhaps places too much emphasis on the word 'exemption' used in Mrocki (No 2), which is no more than a short-form descriptor for there having been no pre-existing requirement to obtain a planning permit for the development. The word 'exemption' is also used in Robertson. Ultimately, little turns on this. The real question is whether the absence of a planning permit requirement for development in the planning scheme is tantamount to there being a 'right' to develop under the planning scheme.
6. The Andersons contended that VCAT had erred in Mrocki (No 2) in placing emphasis on the 'source' of the power to develop the land (i.e. through the absence of a planning permit requirement in the planning scheme), rather than its essential 'character'. They contended that it was important that their power to undertake the proposed building work did not depend upon the exercise of a discretionary power by the Council. It was not a contingent right that, properly construed, might be considered no more than a mere expectation of achieving a benefit. For example, unlike the plaintiffs in Robertson, or in Ungar v City of Malvern[5] (to which I will refer below), the Andersons did not need to obtain some other form of consent, for planning purposes, in order to develop the land. The Andersons therefore claim that they had a right under the P&E Act that was unassailable. They submitted that they were in an identical position to a person who held a right under a planning permit under the planning scheme to undertake the same form of development.
7. I disagree. Irrespective of the source of the power, the substantive rights obtained through the grant of a planning permit are still of a very different character to an opportunity afforded by the planning scheme, at a particular point in time, to undertake a development without a planning permit. A planning permit creates a valuable right and a level of certainty that often forms the basis for development financing. Compensation may be payable under s 94(2) of the P&E Act if a permit is later cancelled or amended. In common practice, the rights established under a planning permit accrue immediately upon the grant of the permit, without there needing to be any other overt action, such as the commencement of development. The rights continue for the defined life of the permit, provided conditions in the permit are met. A quite different regulatory regime applies to the application, grant, variation, enforcement and expiry of planning permits. It simply does not follow that a right of a similar character exists when no permit is required.
8. Even on the Andersons' own arguments, the character of the so-called power to develop the land is different from that arising under a permit. Properly considered, the 'right' they claim is not a 'right to develop' generally, but a 'right to develop without a planning permit'. The introduction of HO462 does not prohibit the proposed development. The Andersons may conceivably obtain a right to develop the land on terms acceptable to them if they were to now apply for a planning permit.
9. Moreover, the Andersons' power to develop the land was not 'unassailable', as they claimed. For this proposition, the Andersons relied in their written submissions upon the VCAT decision in Simpson v Bass Coast SC[6]. However, that decision does not use the word 'unassailable', nor is it even a case in point. Simpson concerned a permit application, and the contingent right of a permit applicant to have a permit issued in accordance with the Notice of Decision after the time for objections had expired. That is a very different scenario. Here, there was no contingent right and the planning scheme could change at any time. [I will deal later with there being no general 'right' to exemption or immunity from legislative change].
10. The Andersons referred me to cases such as Ungar, and Simpson which refer to a 'right' arising from the grant of a permit. I note in passing, although it was not raised before me, that Simpson also refers to other authority that suggests that even a planning permit may not confer a 'right' for the purpose of s 28(2)(e) of Interpretation of Legislation Act 1984. This contrary view is based on the approach by Stephen J in the case of Eaton & Sons Pty Ltd v Warringah SC[7] in relation to a provision with some similarities to s 28(2)(e). His Honour had there considered that a planning permit did not confer a right on any individual (because it ran with the land), and was really no more than a relaxation of a prohibition otherwise imposed by planning controls. As in Simpson, I prefer the view that a planning permit does create a substantive and valuable 'right' for the life of the permit, although it is perhaps unnecessary for me to finally decide the issue here given the different approaches in such weighty authorities as Ungar and Eaton. What is important for present purposes is that, either way, none of these authorities referred to me by the Andersons address the question of whether the absence of a requirement for a planning permit confers an entitlement of a similar character. For the reasons set out above, I do not consider that it does.
11. Similarly, the Andersons referred in written submissions to Advent Investors Pty Ltd v Goldhirsch[8], where Robertson and Ungar were cited as support for the proposition that courts distinguish between procedural rights (such as the right to apply for a planning permit), and legislation which creates, modifies or abolishes substantive rights. That may be so but, again, this authority does not address the question of whether the absence of a requirement for a planning permit confers a right. In my opinion, the character of the power to develop the land that existed at the time was still, in reality, the capacity to take advantage of the planning scheme provisions then in force, rather than a substantive 'right' to develop the land.
12. As a matter of planning scheme construction, the Andersons' counsel also referred me to three provisions that he contended supported the view that the absence of a requirement for a planning permit conferred a 'right' to develop.
13. First, there was reference to the Table of Uses in cl 32.08-1 of the Stonnington Planning Scheme. Clause 32.08 sets out the provisions applying to land in the General Residential Zone, and I was provided with a copy of the provisions applying at the time the building permits were issued. The table is divided into three sections. As those familiar with planning schemes are aware, Section 1 uses do not require a planning permit (sometimes subject to conditions or qualifications), Section 2 uses require a planning permit, and Section 3 uses are prohibited. In the table in cl 32.08-1, a number of uses (including a dwelling) are listed under the heading 'Section 1 - Permit not required'. I accept that Section 1 uses are sometimes referred to colloquially as 'as of right' uses, but this is not a phrase that the planning scheme actually uses.
14. In my opinion, the heading 'Permit not required' in cl 32.08-1, and the corresponding reference in cl 31.01 that 'A use in Section 1 does not require a permit' does no more than state the obvious. Planning schemes and zone controls are amended regularly, and I agree with the Council that the list of Section 1 uses and the heading 'Permit not required' does no more than set out the opportunity that exists at any given point in time for certain land uses to be undertaken without the need to obtain a planning permit. The table is also limited to 'use' rather than 'development'. There is nothing in this wording, considered in isolation, which necessarily confers a 'right' to develop land. [I will deal with the potential relevance of cl 61.05 below].
15. Secondly, the Andersons' counsel referred to cl 32.08-3, again by reference to the provision existing in the General Residential Zone at the time the building permits were issued. That clause dealt with the construction and extension of one dwelling on a lot, and set out a number of matters for which a permit was required under the heading 'Permit requirement', and two matters under the heading 'No permit required'. Although this provision deals more clearly with development (as opposed to use), I do not consider that it takes the matter any further. The wording does not purport to confer any right to develop.
16. I also note that, even if it could be argued that some form of 'right' existed for the matters under the heading 'No permit required', the two listed matters do not cover the substantive works that the Andersons are seeking to undertake under the Pavilion Permit and the Stage 1 Building Permit. They relate to outbuildings (other than a garage or carport) or incidental works, rather than to substantive works in relation to the construction or extension of the main residential building. The Andersons' substantive building works under the Pavilion Permit and the Stage 1 Building Permit did not at the time require a planning permit because of the absence of any express requirement for a planning permit, rather than through there being an express exemption from the requirement for the works they were contemplating. This bolsters the view that no 'right to develop' was conferred by the planning scheme.
17. Thirdly, the Andersons' counsel referred to cl 61.05 where it states that 'If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met'. This clause at least attempts to tie together the concepts of use and development, but it falls well short of providing any 'right to develop'. If a permit is required to develop the land, there could be no 'right to develop' until a permit was obtained. If the development was prohibited under other clauses of the scheme, there would certainly be no 'right to develop'. In similar fashion, the absence of a requirement to obtain a planning permit for use, or the authorisation of a use, does not confer a right to develop. Clause 61.05 makes it clear that development is still subject to the proviso that all requirements of the scheme are met, and cl 61.05 also separately provides that 'Land may be used or developed only in accordance with this scheme'. I agree with the Council that the references in cl 61.05 are intended to apply so as to require all requirements 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.
18. The Andersons contend that the very purpose of s 28(2)(e) of the Interpretation of Legislation Act 1984 is to avoid this consequence. They say effectively that this provision is self-regulating, in that the right must not just exist in some inchoate form but must also have 'accrued' through an active step such as the commencement of works in pursuance of the right. I do not believe that this is correct for reasons including the following:
    • there is a danger in this approach in relying upon the subsequent 'accrual' (i.e. the commencement of works) in order to demonstrate that there is a right, rather than first determining that there is a right, and then separately determining whether that identified right has accrued.
    • the Andersons were quite coy about the extent of the right that they claim had accrued. By commencing works under the Stage 1 Building Permit, they claim to have an accrued right for planning purposes that is not constrained by the ambit of the then existing building permits. They say that they cannot only continue and complete the work under that building permits, but that they can also undertake all other future stages of their proposed development without the need for a planning permit, even if those other stages had not been authorised by any building permit prior to the introduction of HO462, or had not commenced, or had changed materially from earlier draft plans. This almost open-ended accrual of so-called rights cannot be correct. [I will deal further with this issue in some later comments on the Stage 2 Building Permit].
    • for the reasons stated above, I do not believe that the planning scheme, properly construed, confers a general 'right to develop' merely from the absence of an express requirement for a planning permit at a particular point in time when some component of development commences. Section 28(2)(e) of the Interpretation of Legislation Act 1984 is intended to deal with more specific rights conferred under a subordinate instrument, rather than the opportunity that existed for a time to develop land without a planning permit.
    • the position that planning scheme requirements are intended to operate prospectively from the date of any amendment to the scheme is consistent with authorities such as Ungar, albeit in a different context. For example, a permit applicant has no accrued right to have an application determined in accordance with the planning scheme provisions applying at the time of the application. The provisions that apply are those in force at the time the permit application is finally decided, whether by the Council or at a later date on review by VCAT. If the planning scheme changes in the interim, it is the new controls that apply.
19. The very nature of town planning lies in the regulation of the use and development of land, both in facilitating appropriate use and development, and in conserving and protecting other aspects of the natural and built environment. Planning is dynamic, and planning schemes change regularly in response to changing public policy and circumstances. Planning scheme amendments commonly involve public participatory processes (such as with the introduction of the HO462 here) to consider objections from those whose interests may be affected, prior to their introduction. Transitional provisions are commonly used where appropriate. The P&E Act itself recognises specific rights, such as existing use rights under s 6(3), that cannot be removed through an amendment to a planning scheme. Clause 63 makes further provision for the basis upon which existing use rights can continue. There is no similar concept of existing development rights in the regulatory framework.
20. Equally, there is no express provision in the Building Act that purports to authorise works to continue under a building permit if there is a change to a relevant planning control or other legislation that also deals with the same development.
21. Having regard to all of this, the statutory purposes of the P&E Act would be seriously undermined if the position advocated by the Andersons was correct, and if a 'right' under s 28(2)(e) of the Interpretation of Legislation Act 1984 was interpreted as broadly as they suggest. In my view, a purposive approach to the legislation would suggest that no such right is conferred merely by the absence of requirement for a planning permit under a planning scheme in force at a particular time, even if development is commenced whilst that opportunity arises.
22. I mentioned earlier the issue of transitional provisions that are commonly used to allow building works that have commenced to continue notwithstanding the change to a planning scheme. A good example of this occurs in the General Residential Zone itself, in which the Andersons' land is situated. Through Amendment VC110 in 2017, the Minister for Planning introduced new controls relating to maximum building heights, and maximum numbers of storeys, and other related matters. A new clause 32.08-14 was inserted at the same time, to expressly state that the new requirements introduced by Amendment VC110 did not apply in certain circumstances. These circumstances included where a building permit had been issued before the approval date of the Amendment, or where a building surveyor had certified in writing that substantial progress had been made in the design of the dwelling before the approval date and a building permit is issued within a further 12 months. Amendment VC110 did not therefore affect the Andersons' development, given the existence of the building permits in 2014. But it was the transitional provisions that led to this outcome, rather than any pre-existing right.
23. When this example was put to the Andersons' counsel, it was contended that transitional provisions were not determinative, and were sometimes redundant or included as a 'belt and braces' approach.
24. I consider that this response underplays the significance of transitional provisions. There are many examples of transitional provisions throughout Victorian planning schemes that protect building works already commenced pursuant to a building permit. However, sometimes a conscious decision is made not to include a transitional provision as part of a planning scheme amendment, or to limit the ambit of the transitional provision, where the new provision is intended to operate prospectively and with universal effect immediately upon its introduction. Unsurprisingly, this appears to often be the case with planning scheme amendments of a 'protective' character, such as the introduction of a Heritage Overlay to create a planning permit requirement for demolition or construction, in order to require local heritage matters to be properly considered.
25. If the Andersons' view is correct, and if a person acquired a 'right' to demolish a building through the absence of a heritage control in the planning scheme, and that right 'accrued' through the initial commencement of demolition, an interim heritage control could never be introduced to prevent that demolition from continuing until a planning permit was obtained and the heritage status of the building and its surrounds had been properly considered. That was indeed the factual scenario Mrocki (No 2), where the approach now advocated by the Andersons was not supported. The Andersons' approach would seriously undermine the way in which local heritage controls are applied through Victorian planning schemes.
26. Although the Andersons have raised a number of arguments that were not put or considered in Mrocki (No 2), I am not persuaded by their arguments that the opportunity to develop the land without a planning permit (as it existed prior to the introduction of HO462) is of the same character as a right obtained through the grant of a planning permit, nor that it is separately a 'right' for relevant planning purposes that is protected under s 28(2)(e) of the Interpretation of Legislation Act 1984.
27. I have dealt above with the Andersons primary reliance upon s 28(2)(e) of the Interpretation of Legislation Act 1984. Their submissions relied also upon there being a similar principle at common law. The authority relied upon is Maxwell v Murphy[9], where Dixon J had stated that the general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.
28. I do not consider that the reference to the common law takes the matter any further than the position now more clearly arising under s 28(2)(e). The decision in Maxwell is most commonly cited for the now relatively uncontroversial proposition that changes to the substantive law are presumed not to operate retrospectively. That is not a matter in issue here. There is no suggestion that the works undertaken by the Andersons prior to the introduction of HO462 are unlawful or now require a planning permit.
29. Further, for similar reasons to those set out above, I do not consider that any right to develop the land without a planning permit had been 'defined' merely through the absence of a permit requirement in the scheme. Moreover, I consider that a purposive and contextual approach to the planning regulatory framework in Victoria reflects an intention, with reasonable certainty, that changes to planning schemes operate only prospectively (with development lawfully undertaken prior to the change being unaffected), and that transitional provisions are commonly applied when it is appropriate to allow development to continue unaffected by the change.
30. On this latter issue, I agree with the Council that there are some indications that Parliament has turned its mind to this issue. As I have indicated, s 6(3) of the P&E Act contains subsections that protect the 'continuance' of a use of land following a change to a planning scheme, but there is no similar concept of existing or continuing development rights. Section 6(3)(e) however makes a contribution to the way in which the planning scheme works, by indicating that a planning scheme amendment cannot require the 'removal or alteration of any lawfully constructed building or works'. There is thus a statutory protection of development undertaken or completed as at the time of a change to the scheme. Importantly, though, s 6(3)(e) does not purport to deal with ongoing development or works in the same way that other parts of s 6(3) deal with existing use rights. This reinforces the view that, in the absence of rights separately established through the grant of a permit, it is not the intention of Parliament to formally protect continuing development, or development that has merely commenced at the time of the change.
31. Having decided that there is no identifiable or substantive 'right' arising through the absence of a requirement for a planning permit, it is unnecessary to determine whether any right had 'accrued'.

1. As I have earlier indicated, in Mrocki (No 2) I relied in part on earlier authorities such as Robertson v City of Nunawading[10] where the court had held that there was no 'right' to exemption or immunity from legislative action, and that 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 this principle.
2. The Andersons submissions again dealt with the issue that there was nothing in Robertson that suggested that the 'source' of a power was relevant in determining whether there is a right capable of surviving a change in the planning scheme. Rather it is the 'character' of the power that is important. I have already largely dealt with this issue. Irrespective of the source of the power, I consider that the 'character' of the power to develop land through the absence of the permit requirement in planning scheme is very different to the right conferred by the grant of the permit.
3. The Andersons nonetheless contended that there was no 'gap in the field' here. There was a control on the construction or extension of the dwelling included in the planning scheme, under the General Residential Zone provisions in cl 32.08-3 (referred to earlier in these reasons). This clause set out matters for which a permit was required, and matters for which a permit was not required.
4. As I have indicated, although the development proposed by the Andersons was not fully covered by the two matters for which a permit was expressly not required (dealing with outbuildings and incidental works), it was certainly not included amongst the matters for which a permit was expressly required (given the size of the lot). It is common ground that, under the controls for the General Residential Zone in cl 32.08, as at the time of the introduction of HO462, there was no requirement for a planning permit for the construction and renovation works proposed and being undertaken by the Andersons.
5. There is however much more to the Stonnington Planning Scheme than the controls for the General Residential Zone in cl 32.08. All land is included in only one zone under a planning scheme, but planning schemes contain a variety of other 'overlay' controls and particular provisions that provide separate and additional requirements for a variety of purposes, including separate and additional planning permit requirements. Some of these apply generally, some specifically, and some are introduced or amended from time to time.
6. Prior to the introduction of HO462, there was no Heritage Overlay applying to the Land at all. Local heritage was not a matter that was formally regulated under the planning scheme in relation to the Land at all. Through a formal planning scheme amendment process under the P&E Act, in which the Andersons participated, the decision was made to include the land for the first time in a Heritage Overlay, and to introduce the HO462 requirements in cl 43.01 of the planning scheme and the schedule to that clause - i.e. additionally and quite separately to the ordinary zone controls in cl 32.08. The new controls were gazetted and commenced operation on 21 May 2015.
7. In my opinion, the consequence of the planning scheme amendment was to introduce a new local heritage control in an area where there had been no prior control. Following the principle in Robertson, the 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 had been a gap in the field that had previously left the Andersons free of such local heritage controls. That situation materially changed on 21 May 2015. The zone control in cl 32.08-3 did not change, and no permit requirement was introduced under that clause. But from 21 May 2015, a separate planning permit was required under the new local heritage controls in cl 43.01.
8. The independent panel had concluded that the building was of local heritage significance notwithstanding some of the demolition works that had by then been undertaken, and justified the application of a site-specific heritage overlay at that time. The Andersons had been represented by counsel, and called expert heritage evidence, at the panel hearing one might rhetorically ask, if the Andersons truly believed that they had accrued rights that would be unaffected by the introduction of HO462, and that those rights would apply for all existing and future stages of the development that they had commenced or proposed, why did they so vigorously oppose the introduction of the new control.
9. I note in passing that, cl 41 of the planning scheme the deal separately with the operation of overlays, provides that if an overlay shown on a planning scheme map (as occurred with the introduction of HO462) 'the provisions of the overlay apply in addition to the provisions of the zone and any other provision of the scheme'. This bolsters the view I have set out above.
10. It follows that the Andersons have failed to satisfy me that the principle in Robertson was wrongly applied in Mrocki (No 2), or that there was no 'gap in the field' for the purpose of this proceeding.

1. I have dealt with the matters upon which the Andersons' counsel sought to distinguish or attack the decision in Mrocki (No 2), or which otherwise formed the basis for the Andersons written and oral submissions. There were no additional issues arising from the reliance on Mrocki (No 2) in the subsequent decision of DP Gibson in Printz, and I do not consider it necessary to refer further to that decision.
2. It follows that the Andersons have not made out a case for the declarations that they seek, and their application fails. In particular:
   • the Pavilion Permit and the Stage 1 Building Permit do not of themselves create a right to lawfully continue and complete the works without the necessity for planning permission. A building permit does not create accrued rights for planning purposes.
   • the Andersons have not acquired an 'accrued right' to continue with and complete the works by reason of having substantially commenced those works prior to the introduction of HO462. No relevant 'right'existed for the purposes of s 28(2)(e) of the Interpretation of Legislation Act 1984.
   • the Andersons did not have the benefit of any exemption or immunity from the regulatory change that occurred through the introduction of HO462 on 21 May 2015.
3. Subject to the comments in these reasons, I also consider that there is good comity and consistency in this proceeding in following the principles set out in the previous VCAT decisions in Mrocki (No 2) and Printz, which have been followed in numerous other VCAT decisions, and in the absence of any indication that those decisions were clearly wrong.

1. I have mentioned that, on 18 July 2017, well after the commencement of HO462, the Andersons were issued with the Stage 2 Building Permit, authorising alterations and additions to the dwelling, including completion of the first floor rooms, roof and terrace. The Andersons have undertaken, and are continuing to undertake, substantial works in accordance with this Stage 2 Building Permit.
2. Given my decision that building permits cannot of themselves create accrued rights for planning purposes, and that a planning permit is now additionally and separately required for all works after 21 May 2015, it is perhaps unnecessary to delve too far into the works being undertaken under the Stage 2 Building Permit. On my primary view, they clearly require a planning permit.
3. However, even if I am wrong on the substantive issue of accrued rights, and the Andersons did have some accrued rights as at 21 May 2015, I consider that the scope of the rights actually 'accrued' would fall short of those reflected in the works now apparently authorised under the Stage 2 Building Permit.
4. As I indicated earlier in these reasons, the Andersons claim to have an accrued right for planning purposes that is not constrained by the ambit of any building permits. They say that they can undertake all other future stages of their proposed development without the need for a planning permit, even if those other stages had not been authorised by any building permit prior to the introduction of HO462, or had not commenced, or had changed materially from earlier draft plans.
5. I do not consider that this outcome follows. The scope of any accrued right would need to be determined as a matter of fact. As at 21 May 2015, the works then notionally proposed for Stage 2 had not been finalised, and the Andersons' counsel provided no evidence about these works, or how they might fit within the scope of any accrued rights for planning purposes.
6. The untested evidence of Mr Leonard, to the effect that stage building permits cannot be interpreted as being standalone permits, and that a Stage 1 permit is part of a single permit what covers all aspects of the contemplated building works, is in my view incorrect. Section 20 of the Building Act clearly provides that a building permit may be a permit for the whole of the proposed building work, 'or a permit for a stage of the proposed building work'. Here, the Stage 1 Building Permit clearly indicated that it was for that stage only. Draft plans for Stage 2 that were annexed to the Stage 1 Building Permit were marked as 'not relevant' and have subsequently changed in any event. There is no evidence that the works now being undertaken as Stage 2 had been resolved with any certainty for building purposes as at 21 May 2015.
7. More particularly, Mr Leonard's witness statement in this regard does not provide any evidence that the works now being undertaken as Stage 2 had been resolved with any certainty for planning purposes such that they may arguably form the basis of some accrued planning right.
8. I raise the Stage 2 Building Permit for a second reason. At the resumed hearing, the Andersons' counsel handed me a copy of the determination of the Building Appeals Board (BAB) dated 18 July 2017 that directed the grant of the Stage 2 Building Permit. The BAB has purported to determine that the issue of the Stage 1 Building Permit carried with it an accrued right to carry out the building work under the Building Act for the entire building project, and 'this right survived the change to the Scheme'. The BAB determination does not give reasons for this opinion, and I understand that neither the Council nor any other contradictor was present before the Board to put a position other than that promoted by the Andersons' counsel. I query the jurisdiction or expediency of the Board to make the finding that it did in relation to the effect of the planning scheme change, particularly when it presumably knew that the exact same matter was then the subject of a part-heard application for a declaration in the present proceedings in the Planning List at VCAT.
9. Beyond these observations, I note that I am not bound by the determination of the BAB, nor does the conduct of the Andersons or the issue of the Stage 2 Building Permit affect the decision that I have reached in these proceedings.
10. Irrespective of the existence of any building permits, my decision is that the relevant works undertaken on the Land after 21 May 2015 required a planning permit by reason of the HO462 introduced on that date. The Andersons' application for declarations is therefore refused.

[1] The submissions and evidence of the parties, including the Tribunal Book and material presented at the hearing, have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] (Red Dot) [2008] VCAT 2304

[3] [1973] VR 821

[4] (Red Dot) [2009] VCAT 2477

[5] [1979] VicRp 25; [1979] VR 259

[6] [2007] VCAT 165 per Morris P

[7] [1972] HCA 33; (1972) 129 CLR 270

[8] [2001] VSC 59

[9] [1957] HCA 7; (1957) 96 CLR 261, 267

[10] Op cit, [1973] VR 821