Anderson v Stonnington Council [2020] VSCA 229

PLANNING AND ENVIRONMENT - Existing uses - Whether development works 'use' for purpose of Planning and Environment Act 1987 s 6(3)(d) - 'Use' does not extend to development - Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974)

48 ALJR 448, applied.

PRACTICE AND PROCEDURE - Application for leave to amend application for leave to appeal - Appeal from decision of judge of Trial Division to dismiss appeal on questions of law from Tribunal - Amendment sought to reintroduce issue withdrawn before Tribunal - Whether in interests of justice to permit amendment - Medical Practitioners Board v Lal [2009] VSCA 109; (2009) 23 VR 702, Commissioner of State Revenue v Mondous (2018) 55 VR 643, applied - Proposed amendment raised confined legal issue - Any evidentiary deficiencies to applicants' disadvantage - Leave to amend granted.

WORDS AND PHRASES - 'development' - 'right' - 'use' - 'work' - 'works'.

1 This application for leave to appeal raises the question whether a requirement to hold a planning permit applies to building works which had been lawfully commenced without a planning permit but were incomplete when the requirement for a planning permit came into force.

2 The applicants, John and Demitra Anderson, own and occupy a property at

21 William Street, South Yarra. The property is subject to the Stonnington Planning Scheme ('the planning scheme'), a subordinate instrument made under the Planning and Environment Act 1987 ('the Act'). The respondent, the Stonnington City Council, is the responsible authority for the planning scheme.

3 In 2014, Mr and Mrs Anderson commenced works to develop the property. At that time, there was no requirement that they obtain a planning permit for the works. On 21 May 2015, with the works advanced but unfinished, the planning scheme was amended to introduce a planning permit requirement applicable to the property.

4 In 2018, the Victorian Civil and Administrative Tribunal ('the Tribunal') refused an application by Mr and Mrs Anderson for declarations that they were entitled to complete the works without obtaining a planning permit.[1] In 2019, a judge in the Trial Division dismissed an appeal from the Tribunal's decision.[2]

5 Mr and Mrs Anderson seek leave to appeal from that decision. Their application raises two main questions.

6 The first question is whether, at the time the amendment introducing the permit requirement commenced, Mr and Mrs Anderson enjoyed an 'accrued right' to complete the works for the purposes of s 28(2)(e) of the Interpretation of Legislation Act 1984. If so, that provision would (in the absence of the expression of a contrary intention) prevent the amendment from affecting that right.

7 The second question is whether the works could continue without compliance with the permit requirement, by virtue of s 6(3)(d) of the Act. That provision relevantly provides that nothing in an amendment to a planning scheme can prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before the amendment commenced. If the works fell within that provision, it would render the amendment inoperative in respect of them.

8 For the reasons that follow, neither of those questions should be resolved in Mr and Mrs Anderson's favour. Leave to appeal should be granted but the appeal should be dismissed.

9 In 2012, Mr and Mrs Anderson purchased the property, intending to renovate the existing two-storey private residence.

10 To carry out the intended works, Mr and Mrs Anderson were required by the Building Act 1993 to obtain building permits for the works.[3] In late 2014, they obtained various building permits under s 20 of the Building Act. One permit authorised works on a parking pavilion connecting to the front of the property. Another authorised works to construct a front veranda on the first floor. A third permit authorised the partial demolition of the residence, ground floor construction works and construction of a first floor sub-frame to the rear of the property.

11 A further stage of renovations was anticipated but not covered by this first group of building permits. The further stage involved alterations and additions to the first floor rooms, loft, roof and a terrace to the rear of the property. Draft plans for this stage were annexed to one of the initial building permits, but no building permit for this stage was issued until July 2017.[4]

12 At all relevant times, the property has been zoned 'General Residential - Schedule 1' under the planning scheme. After becoming aware of Mr and

Mrs Anderson's proposed works, the Council requested that the Minister for Planning authorise the Council to prepare an amendment to the planning scheme to apply a site-specific heritage overlay to the property. The Minister gave that authorisation and the Council prepared the amendment.

13 In March 2015, a planning panel hearing took place at which Mr and

Mrs Anderson and the Council were legally represented and called expert heritage evidence. In April 2015, the panel recommended the adoption of the amendment. The amendment was adopted by the Council, then submitted to and approved by the Minister. The amendment commenced on 21 May 2015.[5]

14 The amendment to the planning scheme extended a heritage overlay under the planning scheme to apply it specifically to the property.[6] The overlay imposed a planning permit requirement in respect of demolition, building and works on the property. The relevant provisions of the planning scheme, before and after the amendment, are described at greater length below.

15 At the time the amendment commenced, the works the subject of the first set of building permits were well in train. The veranda had been fully completed, the pavilion had been substantially completed, and the remaining works had been substantially commenced and progressed. The value of the works completed to that point was about $720,000.

Planning and Environment Act

16 Section 1 of the Planning and Environment Act describes the purpose of the Act as being:

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.

17 Section 4 identifies certain objectives of planning in Victoria and the planning framework established by the Act. Section 4(1) identifies the objectives of planning in Victoria. As the relevant times, they included:

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

...

(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;

...

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

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

18 Section 4(2) identifies the objectives of the planning framework. They include:

(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;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

...

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes ...

19 Part 2 of the Act is concerned with planning schemes. The Act applies to any planning scheme approved under the Act and in force. Section 6 relevantly provides:

(1) A planning scheme for an area -

(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and

...

(b) may make any provision which relates to the use, development, protection or conservation of any land in the area.

(2) Without limiting subsection (1), a planning scheme may -

...

(b) regulate or prohibit the use or development of any land ...

20 One of the critical provisions in the present appeal is s 6(3) of the Act_._ It provides that nothing in any planning scheme or amendment shall:

(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works.

21 Relevantly to the construction of these provisions, s 3(1) contains the following definitions:

(a) the construction or exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings;

use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed;

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil ...

22 Part 3 of the Act provides for the process for amendment of planning schemes. That process requires the approval of an amendment by the Minister.[7] An amendment comes into operation when notice of that approval is published in the Government Gazette, or on any later day specified in that notice.[8]

23 Part 4 of the Act is concerned with planning permits. Section 47 provides for the making of applications. The matters to be considered by a responsible authority on an application include the relevant planning scheme and the objectives of planning in Victoria.[9]

24 Part 6 of the Act is concerned with enforcement. Section 114(1) relevantly permits a Council to apply to the Tribunal for an enforcement order against a person by whom (or on whose behalf) a particular use or development of land was, is, or is to be, carried out if that use or development contravenes, has contravened, or would (unless prevented by the enforcement order) contravene, the Act, a planning scheme or a permit condition.

25 By s 126(2), any owner of land who uses or develops that land in contravention of a planning scheme or a permit is guilty of an offence.

26 Clause 31 of the planning scheme explains that, in each zone, a table of uses sets out the controls over the use of land, divided into three sections. A use in section 1 does not require a permit as long as any condition that appears opposite that use in the table is met. If the condition is not met, the use falls in section 2 and a permit is required (unless the use is specifically excluded by section 3). A use in section 2 requires a permit and any condition that appears opposite to the use in the table must be met, or the use is prohibited. A use in section 3 is prohibited.

27 The requirements applicable to the General Residential Zone under the scheme are set out in cl 32.08. Clause 32.08-1 is entitled 'Table of Uses' and the table it contains is divided into three sections as described in cl 31. One of the uses falling within section 1, for which there is no requirement to obtain a planning permit, is use as a '[d]welling (other than Bed and breakfast)'. There is no condition specified opposite that use. Section 2, for which a permit is required, includes '[a]ny other use not in Section 1 or 3'.

28 Clause 32.08-3 is entitled 'Construction and extension of one dwelling on a lot'. It has two sections, entitled 'Permit requirement' and 'No permit required' respectively. Those sections identify the circumstances in which construction of a single dwelling on a lot will be subject to a requirement to obtain a planning permit, or be exempted from such a requirement. A permit is required to construct or extend one dwelling on a lot subject to certain size limits. This provision did not apply to the property.

29 Clause 32.08-7 provides for a maximum height of a building used for the purpose of a dwelling or residential building.

30 Clause 41 provides that, if an overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of the scheme.

31 Clause 61.05, entitled 'Effect of this scheme', provides:

Land may be used or developed only in accordance with this scheme.

Land must not be developed unless the land as developed can be used in accordance with this scheme.

If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.[10]

32 It is not in dispute that the effect of the relevant provisions of the planning scheme was that, prior to the amendment, the scheme did not require that Mr and Mrs Anderson obtain a planning permit for the works. It was also not in dispute that the reason for this was that the works were not a development for a use of land for which the planning scheme expressly required that a permit be obtained - the reason was not because the works were for a use which the planning scheme expressly exempted from a permit requirement.[11]

33 The heritage overlay, amended to cover the property by the amendment on

21 May 2015, is found in cl 43.01 of the planning scheme. By cl 43.01-1, where the overlay applies to land, a permit is required to demolish or remove a building or to construct a building or to construct or carry out works on the land.

Interpretation of Legislation Act

34 Finally, 28(2) of the Interpretation of Legislation Act relevantly provides that, where a provision of a subordinate instrument is amended, the amendment:

shall not, unless the contrary intention expressly appears -

...

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision ...

35 Mr and Mrs Anderson made an application to the Tribunal seeking declarations to the effect that the amendment extending the overlay containing the planning permit requirement to include the property did not require them to obtain planning permission to complete the works. They submitted that, by substantially commencing the works pursuant to the building permits, when no planning permit was required, they had 'accrued a right' to complete the works. As that 'right' had accrued before the commencement of the amendment, s 28(2)(e) of the Interpretation of Legislation Act operated to prevent the planning permit requirement contained in the amendment from affecting that 'right'.[12]

37 First, the Tribunal considered that s 28(2)(e) requires that the relevant right has accrued 'under' the particular subordinate instrument or provision amended. As a result, any rights which Mr and Mrs Anderson may have had by reason of the building permits, which were not issued under the planning scheme but under the Building Act, could not assist them.[13] (The contrary argument is no longer pursued by Mr and Mrs Anderson.)

38 Secondly, the Tribunal considered that s 28(2)(e) requires that the relevant 'right' be something more than an opportunity to develop afforded by the absence of a permit requirement at a particular time.[14] The Tribunal did not consider that any of the provisions identified by Mr and Mrs Anderson met this requirement. Rather than affording a right to undertake the works without a planning permit, the provisions provided an opportunity to do so,[15] in the absence of an express requirement to obtain a planning permit.[16]

39 The Tribunal followed its own earlier decision in Mrocki v Port Phillip City Council [No 2] ('Mrocki').[17] The issue in Mrocki was similar: whether the commencement of demolition work authorised by a building permit and initially not subject to a planning permit requirement had caused a 'right' to accrue before an amendment to the relevant planning scheme introduced a planning permit requirement. The Tribunal in Mrocki considered that there was no 'right' for the purposes of the planning scheme.[18] Any right to demolish under the relevant building permit was not a right 'under' the instrument amended (the planning scheme) and so was not a right within s 28(2)(e). The initial absence of a requirement to obtain a planning permit under the planning scheme was not a right but an opportunity that could be taken only for so long as the absence persisted.[19]

40 In the Tribunal, Mr and Mrs Anderson withdrew the argument, which they now seek to revive, based on s 6(3)(d) of the Act.[20]

41 Mr and Mrs Anderson applied for leave to appeal against the decision of the Tribunal.[21] During the ensuing hearing, various proposed grounds of appeal were consolidated to a single question of law: whether at the time of amendment of the heritage overlay Mr and Mrs Anderson had an accrued right to complete the works for the purposes of s 28(2)(e).[22] It was submitted that the right accrued under the planning scheme upon the commencement of the works.

42 The judge dismissed the appeal. He held that Mr and Mrs Anderson did not have an accrued right to complete the works for the purposes of s 28(2)(e). This was because the amendment did not affect any right existing under the planning scheme. The judge rejected Mr and Mrs Anderson's submission that the question of the 'accrual' of the right informed the anterior question as to the existence of the right. Accordingly, authorities identified by Mr and Mrs Anderson as to the circumstances in which rights accrue, and which suggested that rights may accrue on the commencement of works, were of no assistance.[23]

43 The judge considered that the Tribunal was correct to find that the planning scheme, properly construed, conferred no relevant right. The judge applied the principle articulated by the Full Court of this Court in Robertson v City of Nunawading ('Robertson'): that a 'gap in the field' covered by legislation leaving a person free from legislative control is not a 'right' to exemption or immunity from legislative action.[24] As a result, exercising legislative control where it was not previously exercised does not affect any such 'right'.[25] The judge observed that this principle had been applied by the Tribunal in circumstances similar to the present case to foreclose the existence of a relevant 'right'.[26] The principle was not called into question by statements in other authorities cautioning against conceiving of rights narrowly.[27] Those statements went to the scope of existing rights, whereas the principle in Robertson went to the anterior question of whether or not a right exists.[28]

44 The judge considered that, following Robertson, the relevant provisions in cl 38.02 (which did not require a permit for the works prior to the commencement of the amendment) in combination with cl 61.05 (which permitted certain residential development on satisfaction of the requirements of the planning scheme) did not amount to a 'right' but rather reflected a 'gap in the field', by which at the relevant time development of a detached house on residential land of a certain size was not a subject matter regulated by the planning scheme. The gap afforded Mr and

Mrs Anderson the opportunity to undertake the works without a planning permit. When the amendment closed that legislative 'gap', that opportunity came to an end.[29]

45 The judge held that the conclusion that no right arose was also supported by principles of interpretation. It was consistent with the purposes of the Act,

which included the conservation of buildings with heritage interest (a purpose served by the ability to apply a heritage overlay and permit requirement to

works already commenced).[30] Further, neither the Act nor the planning scheme contained provisions which protect existing developments against amendments to the planning scheme, an absence which assumed greater significance given that

s 6(3) expressly protects lawful existing uses against amendments to the planning scheme.[31] This suggested a statutory choice to protect only existing uses, and not existing developments, against amendment.

46 Next, the judge rejected Mr and Mrs Anderson's submission that cl 61.05 conferred a right to develop on satisfaction of two conditions: (a) that the planning scheme permit the particular use for which the land is to be developed; and (b) that all other requirements of the planning scheme are met. The judge held that the Tribunal correctly characterised cl 61.05 not as a rights-conferring provision, but as an ambulatory compliance provision. So understood, it provides that all requirements as to development for permitted uses, as they exist from time to time, must be met. In the present case, the amendment introduced a new applicable requirement under the planning scheme, with which cl 61.05 required compliance.[32] Clause 61.05, in other words, could be seen to accommodate (rather than protect against) the introduction of new requirements.

47 Finally, the judge endorsed the Tribunal's observations that Mr and

Mrs Anderson's difficulty in precisely defining the scope of the purported right was indicative of its absence. These difficulties stemmed from the nature of the purported right: emerging from a 'gap' in the planning scheme, the purported right was entirely undefined in the scheme and the scheme provided no means by which the boundaries of the right may be determined.

48 After first advancing two proposed grounds of appeal, Mr and Mrs Anderson made application for leave to amend their application for leave to appeal so as to advance the following seven grounds:

1. On its proper construction, the [Act], in combination with the express provisions of the planning scheme conferred a right to develop land without the need to obtain a planning permit.
2. The Court below erred in its construction of the Act and the planning scheme by incorrectly finding that the planning scheme did not confer a right, but that instead the planning scheme did not regulate the activity of development, and that a mere 'gap' in regulation did not amount to a right.
3. By no later than 21 May 2015 the Applicants had taken sufficient steps in reliance upon a right conferred by the planning scheme before the introduction of Amendment C204 to invoke the protection of s 28(2)(e) of the Interpretation of Legislation Act 1984.
4. Further and alternatively, s 6(3)(d) provides that nothing in an amendment to a planning scheme can prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before the coming into operation of the amendment.
5. In its effect, s 6(3)(d) precludes the operation of a new amendment if the effect of the amendment would be to impede in any way the use of those works for the purpose for which they were being constructed.
6. If the amendment to the planning scheme was to have effect in relation to all remaining works to complete a partially constructed renovation, such that no works could continue beyond the date of the amendment of the planning scheme until a planning permit for the balance of the works was obtained, the amendment would, in effect and in every practical way, prevent the use of the works for the purpose for which they were being constructed, for at least the period until the permit is obtained.
7. The Court erred in upholding the Tribunal's refusal to make declarations to the effect that the building works commenced by the Applicants prior to the introduction of the Heritage Overlay (HO462) to their land could be lawfully continued and completed without a planning permit because s 6(3)(d) of the [Act] operates to prevent the amendment from having that effect.

49 The seven proposed grounds of appeal identify two paths by which the central question in the proceeding might be resolved in Mr and Mrs Anderson's favour.

50 The first path relies on s 28(2)(e) of the Interpretation of Legislation Act. This is the subject of proposed grounds 1, 2 and 3. Proposed grounds 1 and 2 go to the existence of the right, while proposed ground 3 goes to the accrual of the right by the relevant time. This was the substance of the dispute before the Tribunal, and in the Trial Division. These proposed grounds are similar to the original two proposed grounds of appeal and, to the extent that the application for leave to amend relates to those grounds, it is not opposed.

51 The second path invokes s 6(3)(d) of the Act. Proposed grounds 4, 5, 6 go to the applicability of s 6(3)(d) to the works. Proposed ground 7 identifies the remedy said to follow if it is applicable. These grounds raise issues not ultimately pursued before the Tribunal or in the Trial Division and, to the extent that the application for leave to amend relates to those grounds, it is opposed. It is therefore necessary to first address the application for leave to amend, as it relates to those grounds.

52 The principles governing the raising of new arguments on appeal are well-established and not in dispute. This Court may permit new arguments to be advanced on appeal where it is in the interests of justice to do so.[33] It may be in the interests of justice to do so where the facts have been established beyond controversy below and where the new point sought to be advanced is a question of construction or law.[34] That is especially so if the question has wider significance and where it is therefore in the public interest that it be addressed.[35] Mr and Mrs Anderson submitted that the present case meets those descriptions and that it is no obstacle that the point now sought to be raised was not pursued before the Tribunal.

53 The Council noted that the point now sought to be argued was raised but withdrawn before the Tribunal. Allowing it to be reintroduced would, it was said, undermine the function of the Tribunal, and encourage the tactical warehousing (for later use) of issues which should properly be before the primary fact-finder.[36] Further, the Council disputed that the relevant facts are beyond controversy. Because the issue was abandoned before the Tribunal, the state of works at the date of the amendment was not the subject of definitive evidence or a precise finding. Although the evidence establishes that the works were unfinished, it does not establish whether the premises could be, or were in fact being, used as a dwelling when the overlay commenced. Finally, the Council disputed that the issue raises a legal principle of general importance.

54 The parties rightly accepted that the fact that the arguments in proposed grounds 4 to 7 were abandoned before the Tribunal does not prevent this Court from entertaining them, provided it is in the interests of justice to do so.[37] That is so, notwithstanding that the question of law raised in an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 is the subject matter of that proceeding.[38] While the existence of any question of law is therefore a matter that goes to jurisdiction, there was plainly such a question before the judge in this case. There is no jurisdictional difficulty then in permitting another question of law to be raised for the first time on appeal to this Court.

55 In our view, it is in the interests of justice to permit grounds 4 to 7 to be advanced. The point raised by the grounds is essentially a legal one, concerned with the meaning of s 6(3)(d). To the extent that the evidentiary record is deficient, that may mean that Mr and Mrs Anderson are unable to establish some matter of fact upon which their argument relies. It is not apparent that the Council could be prejudiced in those circumstances.

56 For these reasons leave to amend should be granted.

Grounds 1 to 3 - s 28(2)(e) of the Interpretation of Legislation Act

Applicants' submissions

57 Mr and Mrs Anderson submitted that s 28(2)(e) of the Interpretation of Legislation Act must be understood to conceive of a 'right' broadly and inclusively and not narrowly or analytically.[39] What constitutes a right is a question of substance as well as form. This was said to be consistent with the remedial purpose of the provision and its concern with fairness - specifically, avoiding disadvantaging persons who commence activities on the basis of existing rules.[40]

58 Whether something answers the description of a 'right' was said to depend on a pragmatic enquiry looking to the overall effect and operation of the relevant provision and instrument within the wider statutory scheme. Something will answer the description of a 'right' if its bearer can fairly be said to have had an 'entitlement' or 'vested interest' before the commencement of the relevant amendment.[41] Mr and Mrs Anderson submitted that in the present case this enquiry identified a right to continue and ultimately complete the commenced works, unaffected by the operation of the heritage overlay containing the permit requirement.

59 The textual basis of the right was said to be cl 61.05, in particular the final part of that clause, which provides that if the planning scheme 'allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met'.[42] This was said to provide a right to develop on satisfaction of the conditions there identified: namely, that the use is one the scheme allows and that the other requirements of the planning scheme are met.

60 A necessary element of this submission was the contention that cl 61.05 does not have an ambulatory operation.[43] It was submitted that the right did not depend on satisfaction of the conditions of the planning scheme from time to time. The question whether the conditions were satisfied was not to be answered as to the time of commencement of an amendment to the planning scheme, but instead at the earlier point when the right accrued. It was submitted that, if the conditions were then satisfied, a right arose, engaging s 28(2)(e) so that the amendment did not affect that right.

61 Construing cl 61.05 in this way was said to align with the purposes of the planning framework, including its objectives of fairness, efficiency and orderliness. This is because it would avoid the possibility of developments undertaken lawfully, in good faith, and involving significant investment, being rendered unlawful before their completion.

62 Mr and Mrs Anderson submitted that the asserted right was not merely a 'gap', 'opportunity', or absence of regulatory control in the planning framework. The planning framework was to be understood as comprehensive and complete. By design, it contains no gaps in regulatory control. In respect of the land to which it applies - virtually all land in Victoria - it regulates use and development in a comprehensive and essentially binary way. It either 'positively facilitates' or 'negatively restricts' land use and development in accordance with some combination of planning controls. The intention that the framework cover the relevant legislative 'field' - the use and development of all land to which it applies - was said to be disclosed by the purposes of the Act and the planning framework,[44] and cl 61.05 itself.

63 The Council submitted that that the right contended for did not arise. All that existed was an opportunity or liberty to develop without having to a comply with a permit requirement. Mr and Mrs Anderson enjoyed that opportunity until it ended as a result of the amendment. Robertson dictates that an 'opportunity' of this kind is not a 'right' and enjoys no protection under s 28(2)(e).

64 This submission was premised on a rejection of Mr and Mrs Anderson's characterisation of the planning framework. The Council disputed their submission that the framework was a complete regulatory scheme providing only for rights and prohibitions. It submitted that the planning framework comprised: (a) situations where development could proceed without a planning permit, which were mere opportunities; (b) situations where development required a planning permit, which were opportunities which might give rise to the creation of a right (upon the grant of a permit); and (c) situations where development could not proceed, which were prohibitions.

65 The Council contended that Mr and Mrs Anderson had failed to identify the precise content and scope of the asserted right, which suggested its non-existence. Their own description of the asserted right was said to involve the use of language describing the absence of control (such as 'opportunity') as well as the language of permission and entitlement. Further, the content of the asserted right - to continue and complete the commenced works - was vague and open-ended. It seemed to permit an undefined and evolving programme of works over an uncertain, if not indefinite, period. For example, it was unclear whether the works which there was a 'right' to complete encompassed (a) only the first stage of the works, for which there were building permits when the overlay commenced, or (b) also the further stage of the works for which there was no such permit at that time, or (c) even further contemplated stages of works on the same property.[45]

66 The Council disputed Mr and Mrs Anderson's construction of cl 61.05 of the planning scheme. It submitted that their construction would prevent amendments introducing new requirements from affecting ongoing works, contrary to the dynamic nature of the planning framework which was said to be intended to be capable of quick and frequent change and enforcement.[46] The express purposes of the framework include the conservation of heritage buildings, a purpose which would be frustrated if heritage overlays were ineffective against commenced works.

67 A further difficulty with Mr and Mrs Anderson's construction was said to be that it undermines the distinction the Act makes between lawful uses (expressly protected against amendment by s 6(3)) and lawful developments (which were said to receive no such express protection). If all existing lawful uses and developments could constitute accrued rights enjoying the protection of s 28(2)(e) of the Interpretation of Legislation Act, then s 6(3) of the Act would serve little additional purpose.

68 Finally, the Council disputed that cl 61.05 could offer any textual basis for the right asserted. It argued that cl 61.05 is ambulatory and does not confer or create rights. Rather, it requires compliance with the requirements of the scheme as they exist from time to time.

69 Mr and Mrs Anderson's argument in relation to s 28(2)(e) started from the premise, which the Council accepted, that the Act regulates the use and development of virtually all land in Victoria and leaves no room for rights that might have existed at common law in the absence of such legislation. That premise is expressed in the purpose of the Act, described in s 1 as the establishment of a framework for planning the use, development and protection of land in Victoria.[47]

70 The argument then proceeded to identify a 'right' or 'privilege' acquired or accrued 'under' the planning scheme, to which s 28(2)(e) could apply. Mr and

Mrs Anderson correctly pointed out that identifying such a right or privilege is not to be regarded as an exercise in analytical jurisprudence.[48] Those terms are to be understood by reference to the provisions of the instrument in question,[49] and are not to be unduly narrowly understood.[50] However, that does not diminish the need to identify a right or privilege that has been acquired or that has accrued under the subordinate instrument (here, the planning scheme).[51]

71 The observation of Fryberg J in Resort Management Services Ltd v Noosa Shire Council,[52] that 'when society regulates activities of individuals, those rules should not be changed in such a way that those who are in the middle of an activity are disadvantaged by comparison with the remainder of the community' (upon which Mr and Mrs Anderson relied), should not be understood as offering a test for identifying the requisite right or privilege. In that regard, to the extent that Fryberg J interpreted or applied the equivalent Queensland interpretation statute by 'a robust appreciation of contemporary ideas of justice',[53] the Council rightly pointed out that this was a minority approach.[54]

72 Mr and Mrs Anderson first sought to identify a right or privilege from the table of uses in the planning scheme, read in the context of the planning framework, which deals exhaustively with all land within the ambit of the planning scheme. It was said that there was no 'gap' in the regulatory framework, but that the comprehensive scheme 'positively facilitated' developments for uses within section 1 of the table of uses, including Mr and Mrs Anderson's proposed development.[55]

73 It was accepted in oral argument, however, that the success of this argument depended on cl 61.05 of the planning scheme. That concession was rightly made. That is because, even if the table of uses were to be accepted as conferring a right to use land as a dwelling, it does not address the development of the land for that purpose. A right or privilege to develop therefore does not exist under cl 32.08, including the table of uses.

74 Clause 61.05 deals with development in three ways.[56] First, it prohibits development that is not 'in accordance with' the scheme. Secondly, it prohibits development unless the land as developed can be used in accordance with the scheme. This second prohibition, for present purposes, largely amounts to an elaboration of the first. Thirdly, and most importantly to this appeal, if the scheme allows a particular use of land, the land 'may be developed for that use provided all requirements of the scheme are met'.

75 It is accepted that the scheme allowed for the use of Mr and Mrs Anderson's property as a dwelling. It follows from cl 61.05 that the property could be developed for that use provided all requirements of the planning scheme were met. As mentioned, Mr and Mrs Anderson contended that this gave them the right to develop the property, and that this right accrued before the planning permit requirement was introduced, namely when the demolition works commenced. The Council contended that cl 61.05 required compliance with the planning scheme as in force from time to time. That meant that the amended heritage overlay was to be taken as imposing a requirement governing development on the property from the time the amendment commenced, irrespective of whether such development was then already under way.

76 To recap, by virtue of s 28(2)(e) of the Interpretation of Legislation Act, the amendment to the heritage overlay is to be interpreted so as not to affect any right or privilege acquired or accrued under the planning scheme. Mr and Mrs Anderson rely on cl 61.05 of the planning scheme as the source of their asserted right or privilege to develop the property. This argument depends on reading cl 61.05 as requiring compliance with the planning scheme only as it is in force at the time the right is acquired or accrued and not with subsequent amendments.

77 In our view, that construction of cl 61.05 is incorrect. It is clear from its heading that cl 61.05 is explanatory of the 'effect' of the planning scheme. In that context, the statement that land may be developed 'provided all requirements of the scheme are met' is to be read as reinforcing an obligation of compliance, rather than conferring a right to develop irrespective of intervening changes in the requirements of the scheme. In other words, the requirements of the scheme must be met as they apply from time to time. That interpretation is consistent with the flexible character of planning law, and enables amendments to planning schemes to have full effect in accordance with the statutory objectives of planning. Given that character and those objectives, it would be surprising if the responsible authority had sought to disable itself from altering the requirements of the planning scheme for every development commenced without need of a planning permit, at least in the absence of clear language to that effect.

78 On this interpretation, there is simply no right of the kind asserted by Mr and Mrs Anderson, to which s 28(2)(e) can attach.

79 However, if that interpretation is wrong, the end result is no different. Assume, in Mr and Mrs Anderson's favour, that cl 61.05 is not to be read as imposing the requirements of the scheme as in force from time to time. If, so understood, the clause creates a right or privilege, then the question will arise whether s 28(2)(e) applies to protect that right or privilege. It is therefore necessary to address the question whether the asserted right or privilege had accrued or been acquired, on the assumption that cl 61.05 would then apply the provisions of the planning scheme as in force at that time, but not thereafter.

80 The time for asking that question, on Mr and Mrs Anderson's case, was when demolition works commenced. At that point, it is said, they had a right to develop their land for use as a dwelling, consistently with the planning scheme as it then stood, because cl 61.05 gave them that right. The Council contends, as the judge held, that the Full Court's decision in Robertson indicates that Mr and Mrs Anderson had no right or privilege at that point, only an opportunity to take advantage of the law as it then stood.

81 In Robertson an owner of land had applied to the local council to subdivide his land, at a time when the council had a statutory power to refuse such an application, in the case of land used for residential purposes, if the owner failed to pay a security on request by the council. The land was used for business purposes. While the application was pending, the legislation was amended so that the power to request a security, and to refuse an application if security was not provided, extended to land used for industrial and commercial purposes.

82 The Full Court (Winneke CJ, Gowans and Starke JJ) distinguished a right for these purposes from 'a mere gap in the field covered by the legislation which left the person concerned free of statutory control in that area'.[57] The Court continued:

There cannot, in any relevant sense, or perhaps in any sense, be a 'right' to exemption or immunity from legislative action. 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 the principle.

83 The Court went on to hold that the 'mere launching of an application' did not make the plaintiff's case stronger.[58]

84 Mr and Mrs Anderson rightly point out that in the present case the making of the heritage overlay did not amount to the taking of legislative action in a field where there previously was none. As the Council acknowledged in oral argument, it is perhaps doubtful whether the 'field' analogy is especially helpful in this context. But in any event, the approach in Robertson did not depend on an empty 'field'. The Court denied the existence of a right to immunity from legislative action. In other words, all that the plaintiff had was an opportunity to take advantage of an enactment. As explained by the Privy Council in Abbott v Minister for Lands:

It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.[59]

This distinction has since been endorsed by the High Court.[60]

85 In our opinion, applying the same reasoning to amending statutes, this describes the position in which Mr and Mrs Anderson found themselves. By starting the demolition process, embarking on a program of development in circumstances where no planning permit was required, they were taking advantage of the ability to use and develop the property under the planning scheme as it stood at that time. But they did not have a right, or privilege, to do so, any more than any member of the wider community did in respect of their own land. The law as reflected in the planning scheme was simply in a particular state such that no planning permit was required. Landowners including Mr and Mrs Anderson had the power to take advantage of that state of the law, but no right, in the language used in Robertson, to exemption or immunity from any amendment to that state of the law.

86 This becomes clear when it is sought to identify the right or privilege more precisely by reference to cl 61.05. The entitlement (to use a neutral term) to develop existed in the planning scheme from the moment cl 61.05 took effect. It was an entitlement, the argument implies, enjoyed by any owner of land subject to the planning scheme but which crystallised into an accrued right upon the commencement of works. At that point, it is said that the right enabled development in accordance with the planning scheme as it then stood, not as it stood when cl 61.05 first commenced operation. In this way, the content of the right is made to depend on the state of the planning scheme from time to time, but somehow only until the point when the right is invoked by commencing works. This amounts to no more than saying that works could be commenced at any time depending on the content of the planning scheme at that time. This is not a right, or a privilege, but an ability to take advantage of an opportunity available under the law from time to time.

87 The conclusion that Mr and Mrs Anderson had no right or privilege within the meaning of s 28(2)(e) is confirmed by the difficulty in defining both the right or privilege asserted and the manner of its accrual or coming into existence 'under' the planning scheme. As to the content of the right, there is no way of identifying from the planning scheme what its extent might be. Applying the argument literally, the right would entail development of their property of any kind whatever for the purpose of use as a dwelling, subject only to the requirements of the planning scheme at the time of accrual or acquisition of the right. On this approach, the heritage overlay would simply have no application to the property, at least while it was owned by Mr and Mrs Anderson. They did not press this analysis, however, confining the asserted right to a right to continue and complete the development that had been commenced.

88 Yet as soon as this step is taken, the definition of the right comes to depend on the circumstances in which it is said to have been accrued or acquired, namely the commencement of development works (consisting in the first instance of demolition). This points to vagueness as to the scope of the right. For example, to what extent could the development, once commenced, be modified from what was planned when the right came into existence?

89 The imprecision of the asserted right also points to uncertainty as to the manner of its accrual. If the right depends on the particular development, why should it accrue when works are commenced? Why not when a building contract is signed? Or when a building permit is issued? In these last instances, why should the scope of the right extend beyond the works contemplated by the contract or permit in question?

90 None of these questions finds answers in the planning scheme. They point to the conclusion that Mr and Mrs Anderson had no right or privilege under that scheme of the kind asserted. Even on their construction of cl 61.05, therefore, s 28(2)(e) is not attracted.

91 In summary, the heritage overlay has effect according to its terms, as does cl 61.05. By s 61.05, the land may be used and developed in accordance with the planning scheme, and may be developed for the permitted use as a dwelling provided all requirements of the scheme are met. Those provisions apply on an ongoing basis as land is used or developed from time to time. Subject to any contrary provision in the Act, at any given point over time in that use and development, compliance with the planning scheme is required.

92 The construction of the planning scheme advanced under proposed grounds 1 to 3 must therefore be rejected. However, the remaining grounds raise a suggested contrary provision in the Act.

Grounds 4 to 7 - s 6(3)(d) of the Act

Applicants' submissions

93 Mr and Mrs Anderson submitted that the works fell within s 6(3)(d) of the Act. It was submitted that that provision must impliedly protect 'development' as it expressly protects 'use'. It was submitted that it must render inoperative any amendment to the extent it would prevent the completion of a commenced development for the purpose of the 'protected use'.

94 This construction was said to serve the purpose of the provision, namely to protect persons against legislative changes which might otherwise render unlawful activities which had been lawfully commenced. Applying s 6(3)(d) to development as well as use was said to better facilitate that purpose.

95 In addition, this construction was said to avoid the futility and absurdity of protecting the right to use a building but not the right to finish constructing it. The planning framework was said to be premised on there being a close relationship between use and development. Use is understood to be the outcome and purpose of development.[61] A right to use unaccompanied by a right to complete the development whose use is protected has little utility: an incomplete building (for example an erected building without a completed roof or walls) may not be able to be used for the protected purpose.

96 Finally, Mr and Mrs Anderson submitted that there was no authority which dictated a contrary construction. They submitted that the Tribunal decisions in Printz and Mrocki did not focus on the question of the operation of s 6(3)(d), instead following authorities of this Court and the High Court which did not govern that question but related to s 6(3) generally or paragraphs other than s 6(3)(d).[62] Further, Printz and Mrocki were said to have discounted persuasive decisions of the former Administrative Appeals Tribunal ('AAT') in which s 6(3)(d) was considered to protect, by necessary implication, the completion of works on a building being lawfully erected before an amendment.[63]

97 The Council submitted that s 6(3)(d) offered no protection to the works, nor to development more generally. It submitted that s 6(3)(d) applies, in its terms, only to use. The planning framework recognises, and is premised on, a distinction between use and development. To construe s 6(3)(d) as applying to development would require reading in words which would collapse that distinction.

98 Further, the construction advanced would be contrary to authority. In particular, it was said to be inconsistent with the High Court's decision in Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works ('Nancy Shetland') that a predecessor provision in terms similar to s 6(3)(d) did not encompass 'development'.[64] It was also said to be inconsistent with the decision in Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council ('Sorrento Apartments'),[65] in which a judge of the Trial Division adopted observations made in Nancy Shetland in construing an 'existing use' provision under a planning scheme.

99 Properly construed, the Council submitted, s 6(3)(d) operates only to prevent lawful existing uses against amendment. Specifically, it protects the use of erected buildings and works already completed, and those being erected or carried out, on a property against amendments changing the permitted uses to which the property could be put.

100 Section 6(3)(d) relevantly provides that nothing in an amendment to a planning scheme shall 'prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out' immediately before the coming into operation of the amendment.

101 The provision is not felicitously expressed. Read literally, it addresses the use of both a building and 'work', for the purpose for which it was erected or 'carried out'. It is not easy to see how one can 'use' 'work', or do so for the purpose for which it was 'carried out'. The term 'work', used in the singular, appears to refer to something done, or 'carried out', rather than a thing erected or constructed (which might be more consistent with the defined term 'works'). Moreover, there is a disjunction between the opening reference to 'use' and the requirement of lawfully being 'erected or carried out'. The provision does not protect the erection or carrying out, only the 'use'.

102 Some assistance is derived by reading para (d) in the context of the rest of s 6(3). No other provision uses 'work' in the singular or the phrase 'carried out'. These concepts appear to be introduced specifically to flesh out the operation of para (d). Shorn of those concepts, para (d) permits the use of a building for any purpose for which it was being lawfully erected before the amendment. This supplements other paragraphs of the subsection which relevantly permit, in turn, the continued use of land on which there are no buildings or works, the continued use of an erected building and the continued use of constructed works, for the purpose for which they were being lawfully used before the amendment.

103 It can be seen that para (d) addresses the position of buildings in the course of being erected, and work being carried out. However, as noted earlier, the provision follows those preceding it by providing that no amendment prevents 'use', not 'erection' or 'carrying out'. As already mentioned, there is also an oddity in the notion of 'using' work for the purpose for which it was being carried out.

104 The foregoing observations assume that the words of para (d) are to be read distributively, that is, so that 'erected' describes 'building' and 'carried out' describes 'work'. It is not easy to see how any other interpretation is possible. A building cannot be 'carried out' and, if 'work' were thought capable of being 'erected' it would have been expected that the term 'works' would have been used as it is in the rest of the subsection.

105 That leaves two questions. The first is how the word 'use' operates in para (d). The second is what is encompassed by 'work'. As mentioned, Mr and

Mrs Anderson submitted that the provision extended to development being lawfully undertaken and that the word 'use' did not have a limiting effect because use is the outcome of development. On their construction, 'work' had the same meaning as 'works'.

106 In our view the text, context and purpose of s 6(3)(d) point to it having a more limited operation than Mr and Mrs Anderson contend. In short, it addresses the continued use, and not development, of buildings and works. As to its text, it is directed to 'use'. It does not refer to 'development', despite that being a concept used in the legislation to describe something distinct from use. In relation to buildings in the course of erection, there is no difficulty in reading the provision as permitting their continued use. Without such a provision, there would be a gap in s 6(3)(d) in relation to the use of incomplete buildings.

107 In relation to work, however, 'use' is a problematic term because work being carried out is not readily described as 'used'. There are at least two ways of addressing this difficulty. One reading would be that 'use' only describes 'any building', and that the provision permits two things: the use of any building for any purpose for which it is being lawfully erected, and work for any purpose for which it is being lawfully carried out. However, that would be a strange result, because the reference to 'work' would then seem to add nothing to the provision and the Act does not otherwise purport to regulate 'work'.

108 A better construction is to treat 'work' as meaning 'works'. On this approach, the difficulty with the term 'use' is ameliorated to some extent, because 'works' can sensibly be described as being 'used' or as having a 'use' to which they are directed. 'Works' can also be described as being 'carried out'.

109 Accepting, then that para (d) addresses itself to the use of both buildings and 'work', in the sense of 'works', the provision operates, textually, by looking to what was being erected or carried out immediately before the amendment, identifying the purpose for which that was happening, and then permitting continued use for that purpose. This reading does not encompass permission to continue development, or works - only the use of the building being erected, or the works being carried out, on the land for the identified purpose.

110 This conclusion is consistent with the way in which the Act treats the separate concepts of 'use' and 'development'. It treats para (d), consistently with the rest of the subsection, as concerned with the former rather than the latter. It recognises that the preservation of rights to develop would be a large thing for the statute to achieve through indirect, even obscure, language. The construction also acknowledges and preserves the flexible and dynamic character of the planning framework, which is subject by its nature to regular amendment.[66] If all development in progress were to be exempt from the effect of any amendment to a planning scheme, the ability of the framework to respond to changing circumstances would be significantly hampered. The Council gave the pertinent example of the discovery of matters of heritage significance in the course of a development. The example is pertinent, not only because the present case concerns a heritage overlay, but because it is a specific objective of planning in Victoria to conserve and enhance buildings of historical interest: s 4(1)(d).

111 Reference to the case law on which the parties relied confirms the above interpretation. A number of decisions of the Tribunal and the AAT were canvassed in the submissions. The decision of Ms Gibson DP in Printz was one of those decisions, and it considered the others. In each of the AAT cases, that tribunal held that s 6(3)(d) contained a necessary implication that a building lawfully being erected at the time of an enactment could be completed for the purpose of enabling the protected use to be carried on.[67] The reasoning, which relied on no authority, proceeded on the basis that a right to use an incomplete building was of no utility or absurd without a right to complete the building.

112 The Tribunal in Printz declined to follow the AAT decisions on the basis that they were inconsistent with the High Court's decision in Nancy Shetland,[68] and the decision of Balmford J in Sorrento Apartments.[69] That view had also been taken by the Tribunal at an earlier stage of the Mrocki proceeding.[70] It is convenient therefore to turn directly to the judicial decisions.

113 In Nancy Shetland, an owner of land which had been acquired for the purpose of subdivision and sale had received 'tentative approval' to subdivide the land and had laid out a road, formed and graded along a ridge running through the land as part of the envisaged development. Before any further work was undertaken an interim development order came into operation which prohibited the use or development of the subject land or the carrying out of any works on it.

114 Section 17(1D) of the Town and Country Planning Act 1961 provided in terms relevantly identical to s 6(3), as follows:

(1D) Nothing in any interim development order or in any modification or amendment thereof shall prevent

(a) the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the order or the modification or amendment thereof (as the case may be);

(b) the use of any building which was erected before such coming into operation for any purpose for which it was lawfully being used immediately before such coming into operation;

(c) the use of any works constructed before such coming into operation for any purpose for which they were being lawfully used immediately before such coming into operation; or

(d) the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before such coming into operation.

115 The High Court (Menzies, Gibbs and Mason JJ) held, in short, that s 17(1D) concerned the use of land and not its development. The Court noted the different statutory definitions and usage of the terms 'use' and 'development'. In particular, s 17(1D) was a saving provision accompanying a prohibition in s 17(1C) on 'use or development' not permitted under an interim development order (or amendment or modification thereof) after its coming into operation. In much the same way, s 6(2)(b) of the Act provides for a planning scheme to 'regulate or prohibit the use or development of any land', and s 6(3)(d) speaks only of 'use'.

116 The High Court also noted the definition of 'use', which extended to 'use or proposed use for the purpose for which the land has been, is being, or may be developed'. This definition, also replicated in the current legislation, showed that development of land did not constitute a 'use' in the sense in which that word was used in s 17(1D).

117 Mr and Mrs Anderson sought to distinguish Nancy Shetland on the basis that it concerned the predecessor to s 6(3)(a). It is true that the High Court only quoted from para (a) when describing the operation of s 17(1D) (and the land appears to have been free of buildings or works). It may well be, as Mr and Mrs Anderson also submit, that argument was not advanced in respect of para (d). However, the Court's reasoning as to the meaning of 'use', in the context of para (a), is apt to apply to the whole provision. The significant feature is the absence of any reference in the provision to 'development', notwithstanding that the earlier provision of the statute provides for the prohibition or regulation of both 'use' and 'development'.

118 In Sorrento Apartments, Balmford J adopted the observations made in Nancy Shetland as to the meanings of 'use' and 'development' and applied them to the current planning regime. However, that case concerned the interpretation of existing use provisions of the relevant planning scheme (which Mr and Mrs Anderson do not rely upon), rather than s 6(3).[71] Beyond applying the above observations in Nancy Shetland, therefore, the case does not materially advance matters.

119 In summary, Nancy Shetland supports the approach to s 6(3)(d) set out above. It is inconsistent with the AAT decisions which treat that provision as impliedly concerned with development and not only use. The other authorities do not take the matter any further.

120 For these reasons, s 6(3)(d) does not have the effect for which Mr and

Mrs Anderson contend, and proposed grounds 4 to 7 must fail accordingly.

121 Leave to appeal should be granted but the appeal must be dismissed.

[1] Anderson v Stonnington City Council [2018] VCAT 102 ('Tribunal Reasons').

[2] Anderson v Stonnington City Council [2019] VSC 453 ('Reasons').

[3] See Building Act 1993 s 16.

[4] This followed a decision of the Building Appeals Board that the building permit for the further stage of works could be issued notwithstanding the amendment to the planning scheme. The Board found that a right had accrued to Mr and Mrs Anderson under the Building Act on issuance of the first set of building permits to carry out the remainder of the works in accordance with the Building Act and regulations.

[5] 'Stonnington Planning Scheme - Notice of Approval of Amendment C204' in Victoria, Victorian Government Gazette, No G 20, 21 May 2015, 1134.

[6] This was achieved by adding the property to a schedule of 'heritage places' to which the relevant overlay - cl 43.01 of the planning scheme - applied: see [33] below.

[9] Ibid s 60(1); see also [17] above.

[11] For example, it was accepted that the works did not fall within any 'exemption' in 32.08-3.

[12] Tribunal Reasons [13], [29]-[30].

[16] Ibid [40], [43]-[44], [46]. The Tribunal reasoned that both cl 32.08-1 and 32.08-3 only provided for the absence of a permit requirement in respect of uses and developments such as the works. Clause 61.05 permitted development for permitted uses, but subject to the requirements of the scheme (such as the heritage overlay) as amended from time to time.

[17] [2008] VCAT 2304.

[18] Ibid [32]; Tribunal Reasons [24].

[19] Mrocki [2008] VCAT 2304 [28].

[20] Tribunal Reasons [18], [29]. They also withdrew an argument, which is still not pursued, based on cl 63 of the planning scheme (entitled 'Existing Uses').

[21] See Victorian Civil and Administrative Tribunal Act 1998 s 148.

[23] Ibid [83]-[91]. See, eg, Adelaide Brighton Cement Ltd v Victorian Rail Track [2007] VSCA 10; Resort Management Services Ltd v Noosa Shire Council [1992] 2 Qd R 291 ('Resort Management Services'); Australand Corporation (Qld) Pty Ltd v Johnson [2007] QCA 302; [2008] 1 Qd R 203.

[24] [1973] VicRp 81; [1973] VR 819, in relation to the Acts Interpretation Act 1958 s 7(2).

[25] Ibid 825 (Winneke CJ, Gowans and Starke JJ); Reasons [19]-[20].

[26] Mrocki [2008] VCAT 2304; Glenelg Shire Council v Printz Pty Ltd [2009] VCAT 2477 ('Printz').

[27] See Carr v Finance Corporation of Australia [No 2] [1982] HCA 43; (1982) 150 CLR 139, 151 (Mason, Murphy and Wilson JJ) ('Carr'); Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 12-13 (Windeyer J) ('Mathieson'); Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, 34 [117] (Hayne, Heydon and Crennan JJ) ('Chang').

[30] The Act s 4(1)(d); see also [17] above.

[31] Reasons [107]. Reference was also made to explanatory materials relating to the amending instrument, which, strictly speaking, are not relevant to the question whether the planning scheme conferred a right prior to the amendment: see Reasons [109].

[33] Medical Practitioners Board v Lal [2009] VSCA 109; (2009) 23 VR 702, 713 [41] (Maxwell P, Weinberg JA and Kyrou AJA) ('Lal'); see also Commissioner of State Revenue v Mondous (2018) 55 VR 643, 662 [77] (McLeish JA, McDonald AJA agreeing at 700 [266]) ('Mondous').

[34] Water Board v Moustakas (1998) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ).

[35] Lal [2009] VSCA 109; (2009) 23 VR 702, 714 [42] (Maxwell P, Weinberg JA and Kyrou AJA).

[36] See Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

[37] Mondous (2018) 55 VR 643, 661-2 [76]-[77] (McLeish JA, McDonald AJA agreeing at 700 [266]).

[38] See, eg, Fraser v Sperling [2017] VSCA 53 [55] (Maxwell P, Santamaria and McLeish JJA); McSteen v Architects Registration Board [2018] VSCA 96 [6] (Maxwell P, Priest and McLeish JJA); Coliban Heights Pty Ltd v Citisolar Victoria Pty Ltd [2018] VSCA 191 [38] (Tate, Kyrou and McLeish JJA).

[39] See Carr [1982] HCA 43; (1982) 150 CLR 139, 151 (Mason, Murphy and Wilson JJ); Mathieson [1971] HCA 4; (1971) 124 CLR 1, 12-13 (Windeyer J); Chang [2007] HCA 37; (2007) 234 CLR 1, 34 [117] (Hayne, Heydon and Crennan JJ);

cf Transport Accident Commission v Lanson [2001] VSCA 84; (2001) 3 VR 250, 274-5 [60]-[61] (Phillips JA, Charles JA agreeing at 278 [69]); Victorian WorkCover Authority v Kenman Kandy Pty Ltd [2002] VSCA 190; (2002) 6 VR 666, 673 [15] (Batt and Vincent JJA, Ormiston JA agreeing at 668 [1]); Shire of Corangamite v Transport Accident Commission [1999] VSCA 220; [1999] 3 VR 304, 309-10 [18]-[19] (Buchanan JA, Ormiston JA and Charles JA agreeing at 305 [1] and [2]).

[40] See Resort Management Services [1996] QCA 441; [1997] 2 Qd R 291, 302 (Fryberg J) in relation to Acts Interpretation Act 1954 (Qld) s 20.

[41] Chang [2007] HCA 37; (2007) 234 CLR 1, 15-17 [38]-[46] (Kirby J).

[42] See [31] above.

[43] This was said to be so at least in respect of later amendments which would have the effect of restricting 'rights'. But cl 61.05 was said to be ambulatory to the extent that it could accommodate later amendments which would have the effect of expanding 'rights', for instance an amendment which removed, rather than introduced, a planning permit requirement.

[44] See ss 1, 4(1)(b) and (e), 6; see also [16]-[20] above.

[45] See [10]-[11] above.

[46] See Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126, 146 [86] (Emerton J); [2012] VSC 324 ('Sisters Wind Farm').

[47] It is not necessary, however, to decide whether any common law rights to use or develop land survived the enactment of the Act, as Mr and Mrs Anderson do not assert or rely on any such right in this litigation: cf Chang [2007] HCA 37; (2007) 234 CLR 1, 35 [121] (Callinan J); Ashworth v Victoria [2003] VSC 194 [39], [86]-[87] (Gillard J) in relation to s 8(7) of the Water Act 1989.

[48] Mathieson [1971] HCA 4; (1971) 124 CLR 1, 12-13 (Windeyer J); Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 68 [96] (Gummow and Hayne JJ) ('Temwood'); Chang [2007] HCA 37; (2007) 234 CLR 1, 34 [117] (Hayne, Heydon and Crennan JJ).

[49] Temwood [2004] HCA 63; (2004) 221 CLR 30, 68 [96] (Gummow and Hayne JJ).

[50] Ibid 45-6 [31] (McHugh J); Chang [2007] HCA 37; (2007) 234 CLR 1, 6 [5] (Kirby J).

[51] Chang [2007] HCA 37; (2007) 234 CLR 1, 34 [116] (Hayne, Heydon and Crennan JJ).

[52] [1996] QCA 441; [1997] 2 Qd R 291, 302.

[54] Ibid 295 (McPherson JA), 299 (Moynihan J). See also Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, 135-6 [32] (French CJ, Crennan and Kiefel JJ).

[55] See [26]-[27] above.

[56] See [31] above.

[57] [1973] VicRp 81; [1973] VR 819, 825.

[59] [1895] UKLawRpAC 18; [1895] AC 425, 431 (Lord Herschell LC).

[60] See, eg, Mathieson [1971] HCA 4; (1971) 124 CLR 1, 23 (Gibbs J); Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440 (Mason CJ, Deane, Toohey and Gaudron JJ).

[61] See, eg, APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231, 243 [52] (Cavanough J); [2012] VSC 8.

[62] See Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448; Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council (2001) 117 LGERA 43; [2001] VSC 302.

[63] See the discussion in Printz [2009] VCAT 2477 [33]-[38].

[64] (1974) 48 ALJR 448, 448-9 (Menzies, Gibbs and Mason JJ).

[65] [2001] VSC 302; (2001) 117 LGERA 43, 49 (Balmford J); [2001] VSC 302 .

[66] Section 5 of the Act provides that the Act applies to any planning scheme as in force from time to time. See Sisters Wind Farm [2012] VSC 324; (2012) 193 LGERA 126, 137 [46]-[47], 146 [86] (Emerton J); [2012] VSC 324.

[67] Lucas v Shire of Flinders (Application No 1989/46988) and Lewitan v City of Prahran (Application No 1990/39212), considered in Printz [2009] VCAT 2477 [33]-[38].

[68] (1974) 48 ALJR 448.

[69] (2001) 117 LGERA 43; [2001] VSC 302.

[70] Mrocki v Port Phillip City Council [2007] VCAT 1719 [23]-[24].

[71] [2001] VSC 302; (2001) 117 LGERA 43, 46 [10]; [2001] VSC 302.