Appellant v Respondents

Supreme Court of Victoria|2012-08-03|Before: EMERTON J

PLANNING AND ENVIRONMENT - Appeal from the Victorian Civil and Administrative Tribunal - Declaration by Tribunal that on remittal the Tribunal would apply the law at the time it makes its final decision - Order of remitter had been made by consent limiting the issues the Tribunal could consider - Changes made to the planning scheme before the Tribunal could hear and determine the proceeding again in accordance with the order of remitter - Nature of the Tribunal's jurisdiction to review a decision to refuse a permit where the proceeding has been remitted on limited terms - Whether the permit applicant had an accrued right to have the application determined on the basis of the law at the time the application for review was lodged - Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 - Unger v City of Malvern [1979] VR 259 -Interpretation of Legislation Act 1984 (Vic) - (Vic) , , , (7) - (Vic) , , - Appeal dismissed.

1 This appeal concerns a declaration made by the Victorian Civil and Administrative Tribunal in respect of an application for a planning permit to construct and operate a wind farm in rural Victoria. The issues raised on appeal are not so much about the permit application itself as about the nature of the Tribunal's jurisdiction to review the decision of the responsible authority where the proceeding has been remitted to the Tribunal to be heard and determined again on limited terms and the planning scheme has been amended in the interim.

2 In mid-December 2008, the appellant applied to the Moyne Shire Council for a permit to use and develop a large parcel of land between Mortlake and Terang for a wind energy facility made up of 12 turbines with a generating capacity of 29.99 megawatts (the 'wind farm proposal'). The Council refused the permit application.

3 On 12 August 2009, the appellant applied to the Tribunal to review the Council's decision. On 27 April 2010, the Tribunal affirmed the Council's decision and directed that no permit should be granted for the wind farm proposal (the 'Tribunal's first decision').[1]

4 The Tribunal's first decision was the subject of an appeal to this court (the 'first appeal'). The parties to the appeal agreed that the Tribunal's first decision was attended by error because the Tribunal had applied the wrong noise standard. On 17 December 2010, orders were made by consent setting aside the Tribunal's first decision and remitting the proceeding to the Tribunal to be heard and decided again according to law (the 'remittal order'). The terms on which the proceeding was remitted to the Tribunal, and what the Tribunal could or could not do on re-hearing, are the focus of this appeal.

5 Before the proceeding could be heard and decided again by the Tribunal pursuant to the remittal order, significant changes were made to the Moyne Planning Scheme in respect of wind farm developments.

6 The Tribunal held a preliminary legal hearing to determine whether on remittal it was required to apply the Moyne Planning Scheme as it stood at the time of its first decision, or whether it was required to apply the Moyne Planning Scheme in its amended form.

7 On 21 June 2011, the Tribunal made a declaration pursuant to s 124 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') that the hearing of the application for review by the Tribunal be determined on the basis of the provisions of the Moyne Planning Scheme 'at the time the Tribunal makes its final decision'. The declaration is the subject of this appeal.

8 The Court is now asked to determine whether the Tribunal erred in declaring that the (remitted) application for review be heard and determined on the basis of the law at the time the Tribunal makes its final decision. The parties are at odds as to which version of the Moyne Planning Scheme should be applied by the Tribunal in the remitted proceeding.

9 For the reasons that follow, I have concluded that the decision of the Tribunal must be upheld.

10 In its first decision, the Tribunal identified and considered seven separate issues arising from the wind farm proposal, including noise. In respect of noise impacts, the Tribunal held:

In light of the above assessment of noise impact on sensitive receptors we are of the view that The Sisters application should be refused on this ground alone. We therefore do not intend to address in detail the remaining grounds put forward by the Council and objectors in detail.[2]

11 The Tribunal went on to briefly consider visual impact, adequacy of ecological studies, traffic and access, health and shadow flicker. The Tribunal did not consider that any of these issues would preclude the grant of a permit. However, based on its finding in relation to noise impacts, the Tribunal made an order affirming the decision of the Council and stating that no permit was granted.

12 At the time of the Tribunal's first decision, cl 52.32 of the Moyne Planning Scheme required the Tribunal to assess the noise impacts of the proposal in accordance with New Zealand Standard NZ 6808:1998, 'Acoustics - the Assessment and Measurement of Sound from Wind Turbine Generators' (the '1998 Standard'). However, the Tribunal erroneously assessed the noise impacts of the proposal against a new standard, New Zealand Standard NZ 6808:2010, 'Acoustics - Wind Farm Noise' (the '2010 Standard').[3] Pursuant to the Moyne Planning Scheme as it was at the time of the Tribunal's first decision, the Tribunal was required to apply the 1998 Standard when assessing the noise impacts of the wind farm proposal.

13 The parties agreed that the Tribunal had made an error in applying the 2010 Standard and that the Tribunal was required to apply the 1998 Standard when assessing the noise impacts of the proposal.

14 Accordingly, in the first appeal, the parties filed a Joint Memorandum on Proposed Orders dated 19 November 2010 (the 'Joint Memorandum')[4] asking for the proceeding to be remitted to the Tribunal in accordance with a Minute of Proposed Orders.

15 The Joint Memorandum, signed by the solicitors for the appellant and the Council, set out the background to the first appeal and the agreement of the parties as to the proposed conduct of the remitted proceeding. The proceeding was to be remitted on limited terms. In this regard, the Joint Memorandum recorded the following agreement:

The parties agree that the issue of the noise impacts of the SWF Proposal, including the cumulative acoustic effects of the Sisters Windfarm and the Mortlake Windfarm, should be remitted to the Tribunal for hearing and determination according to law and with the hearing of further evidence. The parties also agree that the Tribunal should be differently constituted, particularly because the parties understand that member Mainwaring is no longer a member of the Tribunal.
Further, the parties agree that the other grounds of objection - conveniently described as visual impact, ecological studies, traffic and access, health and shadow flicker - were either:

(1) the subject of findings made by the Tribunal that would not preclude a permit being issued and have not been the subject of appeal or cross-appeal; or

(2) are no longer in issue between the parties.

For those reasons, it is only the issue of noise impacts that should be remitted to the Tribunal.

16 On 17 December 2010, the Court made the remittal order in accordance with the Minute of Proposed Orders, ordering that the application for leave to appeal be granted, the appeal allowed and the order made by the Tribunal on 27 April 2010 set aside. The remittal order provided that:

The proceeding be remitted to the Victorian Civil and Administrative Tribunal, differently constituted, to be heard and decided again in accordance with law, and with the hearing of further evidence.
On the hearing of the proceeding remitted in accordance with paragraph 4 of these orders:

(1) if the plaintiff's proposal is unchanged from the proposal the subject of planning permit application no PL 08/369 then such further hearing be limited to the issue of the noise impacts of the Plaintiff's proposal, including the cumulative acoustic effects of the Sisters Wind Farm and the Mortlake Wind Farm; alternatively,

(2) if the Plaintiff's proposal is amended in a manner regarded by the Tribunal as material then, in addition to the issue referred to in paragraph 5(1) of these orders, such further hearing may include, at the Tribunal's discretion, any additional grounds of objection directly arising from the amendment(s).

17 On 15 March 2011, Planning Scheme Amendment VC78 came into effect, which changed the planning controls applicable to wind farms in Victoria. Among other things, Amendment VC78:

(a) Amended cl 52.32 of the Moyne Planning Scheme to replace the 1998 Standard with the 2010 Standard;

(b) Amended cl 52.32 of the Moyne Planning Scheme to require additional information to be submitted with permit applications for wind farms, including a plan showing dwellings within two kilometres of a proposed turbine and a concept plan showing associated transmission infrastructure, electricity utility works and access roads;

(c) Amended the policy and planning guidelines for development of wind energy facilities in Victoria to reflect these changes. The old Guidelines (the '2009 Guidelines') were replaced by new Guidelines (the '2011 Guidelines');

(d) Amended the schedule to clause 61.01 of the Scheme to remove the Minister for Planning as the responsible authority for wind energy facilities with a generating capacity of over 30 megawatts; and

18 Clause 52.32-3 (as amended) requires certain matters to be taken into account by the responsible authority, including the 2011 Guidelines and the 2010 Standard.

19 Following the Planning Scheme amendment, there was an exchange of correspondence between the solicitors for the parties reflecting disagreement as to which version of the Moyne Planning Scheme would apply for the purposes of the remitted hearing. As a result, the Tribunal listed a preliminary hearing to consider:

(a) Whether a decision of the Supreme Court of Victoria under s 148 of the VCAT Act affected the jurisdiction of the Tribunal so as to displace the principle that the Tribunal must apply the planning scheme at the time of the Tribunal's final decision; and

(b) Whether the principle in Unger v City of Malvern,[5] required the Tribunal to have regard to Amendment VC78 in finally determining the application.[6]

20 In Unger, the responsible authority refused a permit to use land as a car park and the owner appealed to the Planning Appeals Tribunal. After the appeal had been lodged but before the Planning Appeals Tribunal had heard the appeal, the planning scheme was amended to preclude the grant of a permit to use the land as a car park. The Full Court of the Supreme Court rejected the argument that instituting an appeal to the Town Planning Appeals Tribunal created a right to have an application for a planning permit decided on the basis of the law as it existed at the time the appeal was instituted. The Court held that the Planning Appeals Tribunal was obliged to give effect to the amendments to the planning scheme. The institution of the appeal gave the owner no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. As the grant of a permit was discretionary, the question was open and unresolved, and no right or privilege had accrued to the owner.[7]

21 At the preliminary legal hearing, the Council relied on Ungar to submit that the Tribunal was required to apply the law as it stood at the time it made its final decision on remittal. Noise impacts were therefore to be assessed having regard to the 2010 Standard. By contrast, the appellant submitted that it had an accrued right to have the proceeding determined in accordance with the law as it was at the time of the Tribunal's first decision. That right was preserved by s 28(2) of the Interpretation of Legislation Act 1984 (Vic). The appellant submitted that Unger should be distinguished or, alternatively, that it was no longer good law as a result of the decision of the High Court of Australia in Esber v Commonwealth.[8]

22 In Esber, the applicant sought a review by the Commonwealth Administrative Appeals Tribunal of a decision made by an administrative decision-maker to refuse to allow him to redeem his weekly pension entitlements under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the '1971 Act'). After the application for review had been lodged but before the hearing by the Commonwealth Tribunal, the 1971 Act was repealed and replaced by legislation that provided that weekly payments of compensation over $50 were not redeemable. The applicant's payments fell into that category. By majority, the High Court held that the 1971 Act continued to apply. The applicant had a right to have his claim determined in his favour if the delegate had wrongly refused his claim. That right was a substantive right that was protected by s 8 of the Acts Interpretation Act 1901 (Cth) and was therefore not affected by the repeal of the 1971 Act.

23 The Tribunal followed Unger. In relation to Esber and the operation of s 28(2) of the Interpretation of Legislation Act, the Tribunal said:

In the present case, we are not talking about a repealed Act but rather an amendment to the planning scheme. Nevertheless, the same principle applies. The planning scheme provision that was amended (clause 52.32) did not create any right. All it did was to set out a standard by which noise impacts should be assessed and considered. In my view, it is stretching the imagination to describe this as a "right" acquired or accrued under the amended planning scheme. I agree with the applicant that it has a "right" to have its application for review determined in accordance with law, but that is not a right that is acquired or accrued under clause 52.32 of the planning scheme. The right of review is acquired under section 77 of the Planning and Environment Act 1987. That has not changed. The right to have the review determined in accordance with law is an inherent common law right that the court oversees as part of its jurisdiction under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. That has not changed either.

Whereas in Esber the High Court found that the appellant had accrued a right under the repealed Act, the Court specifically found it was not merely "a power to take advantage of an enactment" such as was the case in Robinson. The Court made this finding based on the facts of the particular case before it and the provisions of the Act in question. I do not consider that Esber establishes a general principle, which is applicable to all situations where there is a successful appeal against the determination of a Tribunal, that when remitted to the Tribunal for rehearing it will always be the law at the time the original decision was made that is applicable to the rehearing. It will depend upon the facts and circumstances of each case as to whether it can be said that a right has accrued within the meaning of section 28 of the Interpretation of Legislation Act 1984.

In the present case, I find that the facts in the present case do not fall within the ambit of section 28. I find that no right was acquired or accrued under the planning scheme. The applicant had no more than "a power to take advantage of an enactment". No right is given under the planning scheme; rather, it establishes a process which is to decide whether a right in the form of a planning permit should or should not be given. It is a situation which, in my view, falls squarely within the principle enunciated in Ungar. It does not matter that the process of decision making is being made upon remittal from the Supreme Court or upon an initial application for review: the task of the Tribunal is the same in each case. It must consider the original permit application de novo (albeit in the present instance confined to the issue of noise).[9]

24 The Tribunal declared that 'the hearing of this proceeding upon remittal from the Supreme Court must be determined on the basis of the provisions of the Moyne Planning Scheme at the time the Tribunal makes its final decision'.

25 The appellant has raised the following questions of law in its Notice of Appeal:

(1) Does the appellant ... have a right to have the proceeding determined in accordance with the provisions of the Moyne Planning Scheme as in force at 12 August 2009, being the date it lodged its application for review, and prior to Amendment VC 78?

(2) Following the orders made by the Supreme Court on 17 December 2010, did the appellant have a right to have the proceeding determined by the Tribunal according to the provisions of the Moyne Planning Scheme as in force on 27 April 2010?

26 The questions of law therefore raise the issue of what, if any, rights had accrued to the appellant:

(a) by reason of it lodging its application for review of the Council's refusal to grant a permit, as at that date; and

(b) by reason of the terms of the remittal order, as at the date of the Tribunal's first decision.

27 The appellant's grounds of appeal are that the Tribunal erred in:

(a) wrongly concluding that the appellant had not accrued or acquired a right to have the noise impacts of the wind farm proposal assessed on the basis of the former cl 52.32, and in particular assessed in accordance with the 1998 Standard;

(b) misapplying s 28(2) of the Interpretation of Legislation Act in concluding that the appellant had not acquired a right to have the noise impacts of the wind farm proposal assessed on the basis of the former cl 52.32, and in particular assessed in accordance with the 1998 Standard; and

(c) wrongly concluding that the noise impacts of the wind farm proposal were to be assessed by reference to the 2010 Standard.

28 The appellant seeks an order pursuant to s 148(7)(c) of the VCAT Act requiring the Tribunal to assess the noise impacts of the wind farm proposal in accordance with cl 52.32 of the Moyne Planning Scheme as it was prior to 15 March 2011, that is, in accordance with the 1998 Standard.

29 The appellant's submissions turn on two sets of propositions:

(a) The effect of the remittal order is to limit the jurisdiction of the Tribunal by excluding from consideration all matters other than noise impacts. By necessity, the redetermination by the Tribunal of the permit application will incorporate elements of the original decision and factual findings of the original Tribunal which were not affected by error of law. The terms of the remittal order preserve the factual findings in the Tribunal's first decision except for the one issue affected by error, that of cumulative acoustic effects. The practical result of the Tribunal's decision will therefore be that the proceeding will fall to be determined under two separate versions of cl 52.32, which is logically untenable and contrary to law;

(b) Further, the appellant has an accrued right to have its application for review to the Tribunal determined on the basis of the law at the time it lodged its application for review by reason of the operation of s 28(2) of the Interpretation of Legislation Act.

According to the appellant, the existence of that right is strengthened by the reasons for and the nature of the remittal order, and if the right did not accrue upon the lodging of its application for review, it accrued when the Tribunal made its first (incorrect) decision.

30 The appellant submits that it was the intention of both the Joint Memorandum and the remittal order that the Tribunal's decision on remitter would be made on the basis that, apart from the issue of noise impacts, none of the issues upon which the Tribunal previously made findings would justify a refusal of the permit. According to the appellant, a favourable determination with respect to noise impacts would mean that a permit would inevitably issue. The appellant submits that the question for the Tribunal as to whether a permit should issue requires it to have regard to the factual conclusions that have been preserved by the remittal order together with the factual conclusion on the cumulative acoustic effects, which the Tribunal is now required to make again based on the correct Standard.

31 It follows, so the appellant contends, that the practical result of having to determine the acoustic effects according to the 2010 Standard would be that the decision to grant or not to grant a permit would be made in part by applying the old version of cl 52.32 and in part by applying the new version of cl 52.32. Such a result would be logically untenable and contrary to law.

32 The appellant further submits that it has an accrued right by reason of s 28(2) of the Interpretation of Legislation Act to have its permit application decided on the basis of the law as it stood at the time of the first Tribunal decision. It bases this submission on Esber, which it says is authority for the proposition that there is a right to have an erroneous administrative decision reviewed on the basis of the law as it stood at the time of the erroneous decision, and such a right is a substantive right protected by s 28(2) of the Interpretation of Legislation Act.

33 The appellant's principal position is that the accrued right that it asserts is derived from the special circumstances in this case, and in particular from the circumstances and terms of the remittal order. In written submissions, counsel for the appellant submitted:

The High Court in Esber found that, although no right had accrued to the applicant in respect of the subject of his application, 'he had a right to have his claim to redemption determined in his favour even if the delegate had wrongly refused his claim'. Even if such a right does not accrue in an application for review which is not concerned with the correctness of the original decision, the inevitable result of the High Court's decision in Esber is that a right must accrue in relation to a remittal which is premised on the existence of legal error in the original decision.[10]

34 The appellant submits that the manner in which s 148(7)(c) of the Act permits a limited remittal brings into sharp focus the way in which the rehearing of a matter on remittal, in contrast to an application for review de novo, is inextricably associated with the matter as originally decided. It is not a new and different proceeding - it is a re-opening of the matter and a reconsideration of the decision made in the same proceeding, in whole or (as in this case) in part, in accordance with law. According to the appellant, this places it in a completely different footing from the applications considered in Ungar and Robertson.

35 In this context, the appellant submits that the amendments to the Moyne Planning Scheme were more than merely procedural in character. Clause 52.32 determines the standards by which various matters are required by law to be assessed in determining an application for review under s 77 of the Planning and Environment Act 1987 (Vic) (the 'P&E Act'). The requirements of cl 53.32 (as amended) operate as a bar or threshold test and it is impossible for the appellant to comply retrospectively with Moyne Planning Scheme and the requirements for review. The amendments therefore affected the content of the appellant's right and were not merely procedural.

36 The appellant's alternative position is that even without the remittal order, it had an accrued right to have the application for review determined on the basis of the law as it stood on the date it made its application for review. Esber, so the appellant says, stands for the general proposition that once an application for review of a decision has been lodged with the body charged with conducting the review, the applicant for review has a right to have it correctly decided. This is a substantive right that brings into play s 28(2) of the Interpretation of Legislation Act.

37 It is not possible to divorce the questions of law on appeal from the statutory context in which the Tribunal exercises its review jurisdiction in respect of planning matters, with or without an order of remitter arising from a previous error of law.

38 The VCAT Act provides that the Tribunal has an original jurisdiction and a review jurisdiction.[11] In its review jurisdiction, the Tribunal has such jurisdiction as is conferred upon it by the enabling enactment to review a decision made by a decision-maker.[12] In this case, the enabling enactment is the P&E Act and the reviewable decision is a decision made by a responsible authority under s 61 of the P&E Act to refuse to grant a permit. Section 77 of the P&E Act provides that an applicant may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant a permit.

39 Section 51 of the VCAT Act provides that when exercising its review jurisdiction, the Tribunal has all the functions of the original decision-maker, and has other functions conferred upon it by or under the enabling enactment, as well as by or under the VCAT Act and Regulations.[13] In determining an application for review, it may affirm or vary the decision under review, or set it aside and make another decision in substitution for it.[14]

40 It is trite law that in exercising its review jurisdiction, the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker.[15] Its task is to 'stand in the shoes' of the original decision-maker and make the correct or preferable decision, having regard to the material before it.[16] The review therefore takes place without any presumption as to the correctness of the decision under review.[17] It is carried out on the basis of the facts and the law at the time the review decision is made.

41 Section 84B of the P&E Act sets out the matters for the Tribunal to take account of or have regard to in determining an application for review under the P&E Act. Section 84B(1) provides that the Tribunal must take account of and have regard to any matter which the responsible authority properly took account of or had regard to, or was required to take account of or have regard to in making its decision.

42 In this regard, s 60 of the P&E Act provides that before deciding on an application for a permit, the responsible authority must consider the relevant planning scheme. It may also, if circumstances appear to so require, consider any amendment to the planning scheme which has been adopted by a planning authority but not yet approved.

43 Section 84B(2) provides that, in addition to the matters referred to in sub-s (1), the Tribunal must take into account a variety of things, including 'any relevant planning scheme'. It must also (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but has not, as at the date on which the application for review is determined, been approved by the Minister or the planning authority.

44 Consideration of a relevant planning scheme is therefore central to the exercise by the Tribunal of its review jurisdiction under the P&E Act.

45 This underlines the importance of planning schemes under the P&E Act. Section 4(2)(b) describes one of the objectives of the planning framework established by the P&E Act to be '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'. Section 14 of the P&E Act imposes a duty on a responsible authority to efficiently administer and enforce 'the planning scheme', and s 16 provides that a planning scheme is binding on every Minister, government department, public authority and municipal council.[18]

This Act applies to any planning scheme approved under this Act as in force from time to time under this Act.

47 This reflects an intention that the provisions of the P&E Act be read so as to automatically pick up amendments to planning schemes. Where there is a reference in a provision of the P&E Act to a planning scheme, it is a reference to the planning scheme as in force from time to time. Section 6(3) of the P&E Act is a complementary provision that protects existing uses and provides that nothing in a planning scheme or planning scheme amendment requires the removal or alteration of any lawfully constructed building or works.

48 Hence, by reason of the operation of the relevant provisions in the P&E Act, when the Tribunal has regard to or takes account of the Moyne Planning Scheme at the remitted hearing (as it must by reason of s 84B of the P&E Act), it will be the Moyne Planning Scheme as then in force.

49 It is in this context that the effect of the remittal order and s 28(2) of the Interpretation of Legislation Act is to be analysed.

50 The appellant contends, in substance, that by the remittal order, the Court has sent the matter back to the Tribunal to be picked up and concluded on the basis of the consideration of noise impacts only. As no further evidence or argument is to be led or advanced on the six remaining issues in respect of which findings were made in the first hearing, those findings have been preserved and it would be 'logically untenable and contrary to law' for the Tribunal's findings on noise impacts alone to be made under the Moyne Planning Scheme (as amended) when the previous findings were made by reference to policy as it stood at the time.

51 The appellant submits that the findings already made by the Tribunal that were not challenged in the first appeal were informed by the policy framework then in force. The matters in cl 52.32 of the Moyne Planning Scheme are intended to be read as a whole and the task of the Tribunal will be to decide the ultimate question - whether a permit should issue - by reference to the requirements of cl 52.32 in its totality, albeit on the basis that the only issue before it is noise impacts. The Tribunal's subjective conclusions in relation to matters such as visual impact were necessarily informed by the policies in the Moyne Planning Scheme then in effect. The same findings might not survive a change in underlying policy. Visual impact, for example, might become 'unacceptable' if the underlying support for or encouragement of wind farms as an alternative energy source was removed. As a result, so it was contended, integrated decision-making might require the existing findings to be revisited if policy has been changed, yet the revisiting of findings is precluded by the remittal order.

52 In my view, the proposition that the Tribunal will integrate 'preserved' findings from the first Tribunal hearing with its own findings on noise impacts and that the Tribunal will be picking up where it previously left off (minus the legal error), misconceives the effect of the remittal order. It is predicated on the remittal order altering the jurisdiction of the Tribunal, which cannot be the case. To the contrary, the character of the Tribunal's jurisdiction informs the nature and scope of the remitted hearing and the remittal order must be construed by reference to the statutory power to make such an order and the statutory jurisdiction conferred on the Tribunal.

53 The remittal order was made by the Court in the exercise of the power conferred by s 148(7) of the VCAT Act, which provides:

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal -

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

54 By the remittal order, the order of the Tribunal was set aside as contemplated by s 148(7)(a). That means that the individual orders which in combination disposed of the proceeding have been set aside. The Tribunal's decision has been quashed and no part of it has survived.[19] What was remitted, in the language of s 148(7)(c) and the remittal order, was 'the proceeding'. The proceeding as a whole was remitted to be heard and decided again as contemplated by s 148(7)(c), having regard only to the issue of noise impacts.

55 It follows that the jurisdiction of the Tribunal invoked by the appellant on 12 August 2009 when it made an application for the Tribunal to review the Council's decision to refuse a permit remains unexercised. The Tribunal is obliged to exercise its review jurisdiction afresh, but on the basis that the issues before it have been limited by the terms of the remittal order. The Tribunal's findings on the other issues are not preserved; rather, it is as though the only question that arises for consideration is the question of whether the wind farm proposal is acceptable having regard to the noise impacts of the proposal.

56 Nothing in the remittal order changes the nature of the review proceeding or the decision that the Tribunal is required to make under the P&E Act. Pursuant to s 85 of the P&E Act, the Tribunal may direct that a permit must not be granted, or grant the permit and direct the Council to issue it. In making this decision, the Tribunal is required to apply the provisions of the Moyne Planning Scheme 'as in force from time to time', that is, at the time it makes its decision.

57 The remittal order was made in the context of a statutory framework for the determination of planning appeals that has as one of its central planks s 5 of the P&E Act, that the P&E Act applies 'to any planning scheme approved under the Act as in force from time to time under the Act'. In taking account of 'any relevant planning scheme' as required by s 84B(2)(a) or s 84B(1),[20] the Tribunal must have regard to the planning scheme that is in force from time to time. An order of remitter made in the context of a challenge to a decision made under the P&E Act must be taken to presuppose the operation of, and must be construed consistently with, s 5 of the P&E Act.

58 The Tribunal on remitter therefore continues to be required to make a contemporaneous, de novo decision having regard to the Moyne Planning Scheme as in force from time to time. Nothing in the nature of the Tribunal's jurisdiction has changed. Although its inquiry is limited to one issue, in making its decision having regard to the Moyne Planning Scheme, it must endeavour to integrate the policies relevant to the issue to be determined (noise impacts) and balance any conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

59 I reject the submission that the manner in which s 148(7)(c) of the Act permits a limited remitter means that the rehearing of a matter on remittal, in contrast to an application for review de novo, is 'inextricably associated with the matter as originally decided'. Although the proceeding that is remitted is not a new and different proceeding, it involves the Tribunal exercising its jurisdiction afresh. Because the Tribunal's order was set aside, there is no 'original decision' and the task of the Tribunal cannot be described as 'a reconsideration of the decision made in the same proceeding'. There has been no binding determination and there are no surviving findings of fact supporting a binding determination. The Tribunal can only exercise the jurisdiction that has been conferred on it by the VCAT Act and the P&E Act, and the remittal order must be construed having regard to that constraint.

60 It follows that the remittal order did not affect a 'partial' remittal as contended by the appellant.

61 The authorities relied upon by the appellant are consistent with this analysis. In Repatriation Commission v Nation,[21] the Full Federal Court had occasion to consider what had been remitted to the Administrative Appeals Tribunal (the 'AAT') when the Court set aside the AAT's decision. The AAT had affirmed a decision refusing the respondent a disability pension for neurosis which he claimed to have developed following surgery for sinusitis. There had been a concession before the AAT that the sinusitis itself was a war-caused disease. This concession was withdrawn at the second AAT hearing and it held that the material before it did not raise a reasonable hypothesis connecting the sinusitis with the war service. The claimant appealed. Justice Northrop, in considering the AAT's powers when hearing the remitted matter, said:

The order remitted "the matter" to the tribunal. The word "matter" means all things in dispute between the parties. In the Federal Court, the things in dispute were limited to the issue of causation from the nasal operation to the existing disease of obsessive compulsory neurosis. That was the matter remitted to the tribunal to be heard and determined. Nothing else was remitted. To use the terminology of Gray J, the order of the court limited the ambit of the issues with which the tribunal was to deal upon the matter being remitted to the tribunal.[22]

62 On appeal, Beaumont J (with whom Black CJ and Jenkinson J agreed) identified the question as being whether, on its true construction, the order of remitter should have been read down in this way so as to remit only that part of the claim that was concerned with the question of whether the neurosis (rather than the sinusitis) was war-caused. His Honour referred to legal principles for the construction of judgments and concluded that the language of the order of remitter was susceptible of more than one meaning: the word 'matter' could have meant the whole question, being the claim for a further pension, but it could also have meant the specific dispute then agitated before the court, that is, the sequela issue. Justice Beaumont therefore had resort to the surrounding circumstances to find the true interpretation and concluded that the meaning given to 'matter' in the relevant context was the more restrictive one. 'That was the only issue tendered for determination by the Court... It follows that I agree with Northrop J that the Tribunal went beyond its jurisdiction in embarking on the sinusitis issue'.[23]

63 Although Beaumont J referred to the Tribunal going beyond its jurisdiction when it went beyond the terms of the order of remitter, the real question was whether the remitter limited the issues to which the Tribunal could have regard. The Full Court held that it did.

64 In the present case, the remittal order was made on the basis that the Tribunal would have to engage in an integrated process of decision-making and balance a range of factors to reach its determination, just as it did in the first hearing, but in respect of only one issue. The remittal order limits the ambit of the Tribunal's inquiry by requiring it to determine whether a permit should issue having regard to the single issue of noise impacts. However, it is not a question of some issues having been determined as at 27 April 2010 and those finding being preserved and the determination of some issues remaining outstanding. In law, nothing has yet been determined by the Tribunal, and the Court has limited the issues which the Tribunal can consider on hearing the application de novo in the exercise of its review jurisdiction.

65 In Minister for Immigration and Multicultural Affairs v Wang,[24] the High Court considered an order made by the Full Court of the Federal Court remitting a matter to the Refugee Review Tribunal 'as previously constituted' in an attempt to preserve findings made by that tribunal that were thought to be favourable to the applicant for review. Chief Justice Gleeson held that orders setting aside a decision and remitting the matter to be determined according to law meant that all questions of fact and law relevant to the claim before the tribunal (in that case, the Refugee Review Tribunal) had to be determined again.[25] Justice McHugh noted that the tribunal was not bound to make the same findings that it had made on the first occasion[26] and Gummow and Hayne JJ held that on remittal, the tribunal was required to carry out its task afresh and to make whatever findings of fact were appropriate at the time of its decision. Justices Gummow and Hayne first approached the question of preserving findings by reference to the difficulty in divorcing findings from the tribunal's decision and its reasons.[27] Their Honours then said:

When the Tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the Tribunal's decision, a person to whom Australia owes protection obligations. So much follows from the fact that the Tribunal exercises afresh the powers of the original decision-maker. Seeking to "preserve" some findings of fact made at an earlier review assumes that no circumstance relevant to those facts has changed in the intervening time.[28]

66 As this passage makes clear, the concept of 'preserving' findings of fact for the purposes of a remitted merits review sits uneasily with an administrative tribunal exercising the jurisdiction conferred upon it to decide matters afresh on the basis of the material before it.

67 In Wang, Kirby J took a different position, and said of the power to remit there in question:

The very purpose of providing such a power was to allow the Tribunal, in appropriate circumstances, to pick up its consideration of the matter, at the point at which the earlier decision was reached. The decision-maker is then obliged to give "further consideration" to the earlier decision, freed from the error of law identified by the Federal Court. The inquisitorial character of the Tribunal is completely untouched. How it goes about its decision-making on remitter is a matter entirely for it in light of the evidence and material placed before it. [29]

68 The power to remit in the Migration Act 1958 (Cth) enabled the Federal Court to make an order referring the matter to the person who made the decision for 'further consideration', subject to such directions as the Court thinks fit. The terms of s 148(7) confer a power to make an order 'remitting the proceeding to be heard and determined again ... in accordance with the directions of the court'. There is no reference to 'further consideration' in s 148(7) of the VCAT Act. In my view, the formulation in the VCAT Act more closely reflects the nature of the jurisdiction exercised by administrative tribunals and the character of the decisions that they make. Where the order of the Tribunal has been set aside and it is directed to hear and determine a proceeding again, there is no capacity for the Tribunal to 'pick up' where it left off or for its factual findings to be preserved.

69 It is, of course, less than ideal that since the remittal order, the Moyne Planning Scheme has been amended in respect of the very type of development with which the remitted proceeding is concerned. This may make it more difficult than it would otherwise have been for the Tribunal to hear and determine the review application having regard to evidence on a single issue. As the correspondence between the parties indicates, questions may arise about compliance with other requirements of the amended cl 52.32, such as the requirement to provide plans and consents under cl 52.32-3.

70 Inelegant as the outcome is, that is what the law dictates. The power to give directions on remittal under s 148(7) of the VCAT Act does not extend to fundamentally changing the nature of the Tribunal's jurisdiction on review of a decision to refuse a planning permit.

Does the appellant have an accrued right to have the 1998 Standard applied?

71 Section 28(2) of the Interpretation of Legislation Act provides that the repeal or amendment of a subordinate instrument or a provision thereof shall not affect any right accrued under the instrument or provision, unless the contrary intention expressly appears.

72 The appellant submits that it has an accrued right to have its permit application decided on the basis of the law as it stood at the time of the first Tribunal decision based on the following propositions:

(a) The present circumstances are materially different from those in Unger. The accrued right arises from the fact that the Tribunal made a decision affected by a vitiating error of law and is now required by the remittal order to remake that decision in respect of a discrete matter while preserving its findings in respect of all other relevant matters;

(b) The decision in Esber establishes that, whether or not an applicant has an accrued right in respect of the ultimate object of the application, he or she does have a substantive right to have the review undertaken by reference to the power exercised by the primary decision maker under the law as it stood at the time of the original decision. To the extent that Unger says otherwise, it is no longer correct in the light of Esber.

73 The appellant's submissions regarding its accrued right to have the review application determined in accordance with the 1998 Standard are therefore derived from it characterisation of the effect of the remittal order and from the decision in Esber, the facts of which are set out above. In accordance with what it describes as 'the second limb' of Esber, it submits that it has an accrued right to have the application for review determined in accordance with the law as it was at the time of the Tribunal's first decision, before the Moyne Planning Scheme was amended.

74 In Esber, the High Court held that by reason of the Commonwealth equivalent to s 28(2) of the Interpretation of Legislation Act, Mr Esber's application for review of an administrative decision had to be determined on the basis of repealed legislation. The case was determined on the basis of transitional provisions in the amending legislation. However, the Court went on to consider whether Mr Esber had an accrued right to have his claim determined on the basis of the legislation in force at the time he made his application for review. The majority held that while the Tribunal was required to stand in shoes of the original decision-maker and arrive at its own decision, and had to make the correct or preferable decision on the material before it rather than on the material that was before the original decision-maker,[30] that was not the point. It said:

If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister [The Winbar Claim]:

The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure 19; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent". This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.[31]

75 In the passages extracted, the accrued right was described in two ways:

(a) The appellant had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim; and

(b) Once the appellant lodged an application to the Commonwealth Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal.

76 Assuming that these sentences describe the same right, the right to have the claim correctly decided if the delegate has wrongly refused it is, in effect, a right not to be deprived of the opportunity to have the incorrect decision of the delegate reconsidered and correctly determined by the Tribunal on review. In Esber, the effect of the repeal of the 1971 Act was that Mr Esber lost his entitlement to redeem his pension, and his application for review would have been futile had the new law applied to the review that he had initiated. He would have been deprived altogether of his right to have the decision of the delegate reconsidered and correctly determined by the Tribunal. That is not the case here. The appellant has not lost its right to have the Tribunal reconsider and correctly determine whether a permit should issue (although it has lost the benefit of the 1998 Standard).

77 The appellant contends, however, for a broader entitlement. It finds support for its contentions in the decision of the majority of the Full Court of the Federal Court (Cooper and Moore JJ) in Lee v Secretary, Department of Social Security.[32] Lee involved an application to review a discretionary decision by the Secretary of the Department of Social Security (or the Secretary's delegate) not to waive a social security debt. Justice Cooper applied the language of the High Court in Esber to find that the applicant 'had a right to have [her] claim to [waiver] determined in [her] favour if the delegate had wrongly refused [her] claim'.[33] Justice Moore, after extracting a lengthy passage from Esber, concluded that a statutory right to seek a review of a decision made under a repealed Act was a right for the purposes of s 8 of the Acts Interpretation Act. Moreover, it was 'a right to have the review undertaken by reference to the power exercised by the primary decision maker under the repealed Act'.[34] According to Moore J, s 8 conferred on a person affected by the exercise of a statutory power a right to have the exercise of the power reviewed and exercised again as it might have been exercised initially.[35]

78 The difficulty in applying Esber was alluded to by Kiefel J (sitting as a judge in the Full Court of the Federal Court) in Repatriation Commission v Keeley,[36] where the issue was whether the applicant had a right to have her application for a pension determined according to Statements of Principles that had been replaced. Although her Honour found it unnecessary to consider the nature of the applicant's rights to review as 'rights' which had 'accrued', Kiefel J considered what the High Court meant when it held that Mr Esber had 'a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim'. Her Honour said:

The difficulty, with respect, in the application of Esber is in understanding precisely what it proposes. Moore J in Lee thought that it is to be regarded as authority for the proposition that "a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s 8 of the Acts Interpretation Act" (at 515). It would appear that his Honour also took Esber necessarily to say that the right was one to a review according to the prior claim to redemption (at 515-516). No finding of accrued right was however made in Esber, and any relationship between the matter applied for and the review is not explained in detail. Davies J took Esber to mean that the principle that the law as it then exists, and not some earlier law, is applied to a rehearing de novo, as a review is, was overridden by the Acts Interpretation Act provision (at 495-496). Cooper J in Lee at 505 observed that the majority in Esber applied the analogy of a right of appeal to the review, in holding that it was not to be altered, and reiterated their Honours' reference to cases such as Australian Coal & Shale Employees' Federation v Aberfield Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 and Colonial Sugar Refining Co v Irving [1905] AC 369. Those decisions were, however, concerned with new statutory provisions which would have altered the right to an appeal itself. The right in question under the Interpretation Act provision is of course that which accrued under the provision which is repealed or amended. The statutory change in Esber was to the provision relating to the claim for redemption, not to the right to review.[37]

79 I agree, with respect, with her Honour's analysis of the difficulties in applying Esber. In my view, the difficulty is a function of the hiatus between the right which seems to have been identified in Esber as a right to have an incorrect decision reviewed, and the rights (if any) created by or under the legislation or subordinate instrument that has been repealed or amended. Most apparently, it is rights of the latter kind that are protected or preserved by provisions like s 28(2) of the Interpretation of Legislation Act. As Kiefel J observed, Esber did not explain in detail the relationship between the matter applied for (a pension or a permit) and the rights arising on review. This makes it difficult to know whether, and if so how, Esber applies.

80 The right to have the decision of the original decision-maker reconsidered and determined by the Tribunal is not a right that accrued under the Moyne Planning Scheme per se or was lost by reason of the amendment of the Moyne Planning Scheme. On its face, s 28(2) of the Interpretation of Legislation Act requires the right in question to have accrued under the subordinate instrument that has been repealed or amended. The instrument that has been amended is the Moyne Planning Scheme, which contains policies for the development and use of land for wind farms. Neither those policies, nor the P&E Act as a whole, confer any right on a permit applicant to a planning permit.

81 In this regard, I note that the reason Keifel J in Keeley found it unnecessary to consider the nature of the applicant's rights to review as 'rights' which had 'accrued' was because her Honour held that the protected right was the applicant's right to the pension itself. The Veterans' Entitlements Act 1986 (Cth), recognised a liability for the payment of a pension so long as a veteran's death was war-caused and that the entitlement to a pension did not depend on discretionary factors or levels of satisfaction held by a decision-maker.[38] Justice Kiefel observed that the right was not dissimilar to a cause of action in negligence, with the remedy being compensation by way of a pension.[39] The Statements of Principles operated as a bar or limitation operating on the right to the pension.[40]

82 In the present case, the right asserted is not based on any right to a permit.

83 In Attorney-General (Qld) v Australian Industrial Relations Commission,[41] the High Court had occasion to consider Esber in the context of applications by unions to the Industrial Relations Commission under the Industrial Relations Act 1988 (Cth) (the '1988 Act') for 'roping in' awards. The applications in question were commenced but not completed before the introduction of s 111AAA of the Workplace Relations Act 1996 (Cth), which provided that the Commission was obliged to cease dealing with industrial disputes in certain circumstances. The unions asserted that they had acquired or accrued the right to have their disputes arbitrated under the 1988 Act.

84 Justices Gaudron, McHugh, Gummow and Hayne commented that the 'right' which had 'accrued' reflected the susceptibility of the Commission to mandamus under s 75(v) of the Constitution.[42] Their Honours then went on to consider the character of industrial awards and the nature of the arbitral function. They continued:

The requirement, enforced by mandamus, that the arbitrator hear and determine a matter according to law allowed for changes in the content of that law which founded the duty which attracted the remedy. If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award, then the obligation to make a determination according to law was correspondingly modified. In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of "accrued" rights in the law as it stood at any particular stage in the arbitral processes had no place.[43]

85 Their Honours distinguished the 'accrued right' in Esber, which was 'concerned with the continuation of an application for review by the Administrative Appeals Tribunal and the determination of Mr Esber's entitlement to redeem his rights to further payments of compensation under the earlier legislation', with the rights said to flow from the duty imposed upon the Commission by the 1988 Act, which allowed for changes in the content of the law that founded the duty.[44]

86 In the present case, even if there was a right to continue proceedings to a conclusion under the statutory regime in force when the application for review was lodged (August 2009) or when the Tribunal first made its (incorrect) decision (April 2010), this statutory regime provided for the responsible authority, and the Tribunal standing in its shoes, to have regard to the Moyne Planning Scheme 'in force from time to time'.[45] The statutory regime contemplates that the content of planning schemes is not fixed, but can be changed in accordance with the procedures set out in the P&E Act. The responsible authority has a duty to administer and enforce the planning scheme, to comply with the planning scheme and to implement the objectives of the planning scheme 'as in force from time to time' under the P&E Act.

87 This, in my view, is very similar to the situation in AIRC, where the Commission was required to hear and determine matters 'according to law'. The legislative scheme itself provided for the content of the policies to be applied in the grant or refusal of a planning permit to be fluid rather than fixed. The 'right' to have the Council's decision to refuse the permit reviewed (so as to reach the correct and preferable decision), was a right conferred by s 77 of the P&E Act to have the Tribunal re-make the decision and in so doing, to apply the policies of the Moyne Planning Scheme as in force from time to time. It was not a right to have the Tribunal apply policies in a manner that conflicted with a central tenet of the P&E Act, namely that that Act applies to 'any planning scheme approved under this Act as in force from time to time under this Act'.

88 This follows from a proper analysis of the statutory framework. Section 28(2) of the Interpretation of Legislation Act does not effect any change to this framework.

89 In AIRC, Kirby J emphasised that the starting point for analysis must be the language of the applicable statute (or, in this case, statutes). His Honour held that the court below 'erred in proceeding directly to the suggested application of the Interpretation Act. The question raised by that Act was, and could only ever be, a subsidiary one.'[46] The starting point for the legal task is the construction of the text applicable to the case.[47]

90 Furthermore, in AIRC, Kirby J distinguished Esber based on the nature of the statutory entitlement in issue. Mr Esber 'had an uncontested statutory entitlement to weekly compensation payments. This afforded him the foundation of a legal right for a fairly simple determination of entitlement to a redemption sum and the calculation of the amount.'[48] This was to be contrasted with the award making task of the Commission in the proceedings that the unions sought to maintain on the basis of an Esber-like accrued right. His Honour further held that the entitlements of the unions before the Commission did not represent rights or privileges of the kind contemplated by s 8 of the Acts Interpretation Act because the entitlement to have the Commission make an award was, in accordance with the reasoning of the Privy Council in Director of Public Works v Ho Po Sang,[49] not an investigation in respect of a right, but 'an investigation which is to decide whether some right should or should not be given.'[50]

91 I respectfully agree with the reasoning of Kirby J. A permit applicant has no statutory entitlements affording the foundation for 'a fairly simple determination of entitlement' to a permit. Planning permits are granted or refused having regard to the consideration of overall community benefit. The grant of a planning permit, whether it be by the responsible authority directly or pursuant to the direction of the Tribunal, involves consideration of objections by persons 'who may be affected by the grant of the permit',[51] and the responsible authority must decide to refuse to grant the permit if a relevant referral authority has objected to the grant of the permit.[52] Permits are matters of public record that can be enforced by 'any person' applying to the Tribunal for an enforcement order.[53] This demonstrates the nature of an application for a planning permit under the P&E Act and the character of the task assigned to the responsible authority when considering that application. Once an application has been made, be it to the responsible authority at the outset or to the Tribunal on review, the responsible authority or the Tribunal (as the case may be) is concerned to establish, not whether a right exists, but whether a right should be given. In so doing, it must endeavour to integrate the policies relevant to the issue to be determined and balance any conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. The overriding consideration is the net community benefit.

92 For these reasons, Esber is distinguishable from the present case. The Tribunal was correct to distinguish Esber and to declare that the Tribunal would apply the Planning Scheme as in force when it made its decision.

93 In reaching this conclusion, I have carefully considered the planning decision that was brought to the Court's attention, the decision of Barker J sitting as President of the State Administrative Tribunal in Western Australian Planning Commission and CPP Pty Ltd.[54] His Honour there confirmed that a review application lodged under the Town Planning and Development Act 1928 (WA) before that Act was repealed should be determined on the basis that the repealed Act continued to apply to the review proceeding, notwithstanding its repeal by the Planning and Development Act 2005 (WA).[55]

94 Section 20(5) of the repealed Act provided that in giving approval, the discretion of the Commission was not fettered by the provisions of any town planning scheme. However, the 2005 Act required the Commission to have regard to the provisions of any local planning scheme and not to give approval that conflicted with any such provisions. Justice Barker had regard to s 37 of the Interpretation Act 1984 (WA),[56] and to Ho Po Sang, Robertson, Esber and Lee. His Honour commented that based on AIRC, the majority decision in Esber had to be approached with caution, in the sense that not every administrative procedure created by an earlier law will be treated as having created in the applicant a substantive right to have a matter determined on the basis of that procedure as it applied before the change. However, although Mr Esber's existing entitlement to redeem his rights to further payments of compensation helped to explain the decision in Esber, nothing in AIRC expressly disapproved the majority finding in Esber that where a person commences an administrative review proceeding before the law is changed, that proceeding should be determined according to the law as it stood prior to the repeal.[57]

95 Justice Barker considered there was a strong case to be made in support of the view that no right was acquired prior to the repeal of the repealed Act, as the owner of land had no existing right to subdivide and could only do so if a statutory prohibition was removed by a relevant authority. However, his Honour concluded that Esber stood as high authority for the contrary view and he could see no persuasive ground to distinguish Esber.[58] As a result, Barker J felt compelled to follow Esber and to make orders to confirm that the repealed Act remained the applicable law.

96 Whether or not Barker J has correctly analysed the effect of the repeal of the 1928 Act, the circumstances in WA Planning Commission can be distinguished. There, the law that was repealed and replaced was a law governing the exercise of the power to grant subdivision approval which provided that the decision maker's discretion was unfettered by town planning schemes. The new law fettered the discretion by requiring the decision maker to have regard to relevant town planning schemes. There has been no equivalent amendment to the P&E Act. It continues to provide for the application (and amendment) of the Moyne Planning Scheme in the way that it did at the time of the Tribunal's first decision.

97 The decision in WA Planning Commission does not cause me to change my view that the appellant has no accrued right to have the Tribunal on remitter apply the Moyne Planning Scheme in its unamended form.

98 The Tribunal's declaration was correctly made. The appellant had no accrued no right to have the proceeding determined in accordance with the Moyne Planning Scheme as in force on 12 August 2009 when it lodged its application for review. Moreover, the appellant had accrued no right to have the proceeding determined in accordance with the Moyne Planning Scheme as in force on 27 April 2010 by reason of the Tribunal's error and the making of the remittal order. The remittal order did not alter the jurisdiction of the Tribunal to carry out the review as a de novo hearing having regard to the Moyne Planning Scheme as in force at the time of its decision.

99 This result may seem harsh for the appellant, which has been deprived of the opportunity to have its application for a planning permit determined by reference to the more lenient 1998 Standard through an error by the Tribunal in its first decision that was apparently brought about by incorrect submissions as to the applicable Standard made by the Council. However, the result is a product of the statutory framework for the review of planning decisions by the Tribunal or, as the Council puts it, the 'building blocks' of planning law, the Tribunal's review jurisdiction and judicial review of administrative action in Victoria.

100 The grounds of appeal are not made out. The appeal must be dismissed.

[1] The Sisters Wind Farm Pty Ltd v Moyne SC [2010] VCAT 719.

[2] The Sisters Wind Farm Pty Ltd v Moyne SC [2010] VCAT 719, [29].

[3] The Tribunal accepted that under the Interpretation of Legislation Act 1984 (Vic), the reference to the 1998 Standard should be read as a reference to the 2010 Standard. In fact, there was nothing in the Interpretation of Legislation Act that authorised the Tribunal to read references in the Planning Scheme to the 1998 Standard as references to the 2010 Standard.

[4] In accordance with Practice Note 4 of 2009 in the Judicial Review and Appeals List.

[6] The order also referred to consideration of procedural directions in relation to the final hearing including with respect to any additional material required to be filed by the parties, and the basis on which evidence is to be prepared to enable the Tribunal to finally determine the application.

[7] Unger v City of Malvern [1979] VicRp 25; [1979] VR 259, 265. Similarly, in Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 ('Robertson'), the Full Court held that the lodging of a plan of subdivision with the council gave the subdivider no right to the continuance of his proceeding unaffected by an amendment to the statute requiring the payment of security to the council before a plan of subdivision was sealed. The council was entitled to require the payment of security by the subdivider.

[9] The Sisters Wind Farm Pty Ltd v Moyne SC [2011] VCAT 1133, [25]-[27] [Citation omitted].

[10] Outline of Submissions on Behalf of the Appellant dated 3 February 2012, [66] [Emphasis in original].

[12] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 42; R v Perkins [2002] VSCA 132, [16]; Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7, [27].

[14] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 51(2)(a), (b) and (c). It also has a power to remit the matter for reconsideration by the original decision-maker (s 51(2)(d)) although this is rarely used.

[15] Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd (Unreported, Victorian Court of Appeal, Nettle and Ashley JJA, 1 September 2006, [29]).

[16] Drake v Minister for Immigration (1979) 24 ALR 577.

[17] Stewart v Shuey [1999] VSC 114, [114]; Davidson v Victorian Institute of Teaching [2006] VSCA 193, [6].

[18] Except to the extent that an Order of Governor in Council may otherwise provide.

[19] The order made by the Court setting aside the order of the Tribunal was akin to an order in the nature of certiorari. Such orders 'expunge the decision and wipe the slate clean': Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269, [21].

[20] The planning scheme being a matter that the responsible authority was required to take account of.

[22] Nation v Repatriation Commission (No 2) [1994] FCA 1536; (1994) 37 ALD 63, 68-69.

[28] Ibid 542 [77] [Emphasis in original].

[30] Drake v Minister for Immigration (1979) 24 ALR 577, 589.

[31] Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440-441 (Mason CJ, Deane, Toohey and Gaudron JJ) [Citations omitted].

[49] [1961] AC 901, 922 ('Ho Po Sang').

[50] Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, 537 [137].

[54] [2006] WASAT 379 ('WA Planning Commission').

[55] The primary decision-maker had rejected related applications for subdivisions on the grounds of non-compliance with Design Codes and Structure Plans, and because the subdivisions would be detrimental to the existing character of the area.

[56] Which was the equivalent of s 8 of the Acts Interpretation Act 1901 (Cth).

[57] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [76].

Government Employees) Act 1971(Cth)

Legislation Act 1984

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Interpretation Act 1901

Entitlements Act 1986

Planning and Development Act 1928

Development Act 2005

Government Employees) Act 1971(Cth)

Legislation Act 1984

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Interpretation Act 1901

Entitlements Act 1986

Planning and Development Act 1928

Development Act 2005

Government Employees) Act 1971(Cth)

Legislation Act 1984

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Interpretation Act 1901

At a glance

Court

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Before

Source

Judgment (180 paragraphs)

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Legislation Cited (80)

Cases Cited (9)