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[2006] VCAT 1958
Victorian Civil and Administrative Tribunal
2006-09-20
Original judgment source is linked above.
Notice of decision to grant a permit - Objector's application for review withdrawn - Change in zoning which means use now prohibited - Responsible authority bound to issue permit to implement notice of decision to grant a permit notwithstanding amendment to planning scheme - Section 28(2) Interpretation of Legislation Act 1984 - Section 64(3) Planning and Environment Act 1987 - Section 50 Victorian Civil and Administrative Tribunal Act - considered - Existing use rights
Bass Coast SC v Christian Brethren Trust [2006] VCAT 1958
1 The following declaration is made pursuant to section 149B of the Planning and Environment Act 1987:
a
The responsible authority must issue a planning permit in accordance with the Notice of Decision to Grant a Permit issued on 17 May 2006 in respect of permit application No 060072.
Mr Greg Garde QC, instructed by McCracken & McCracken
(given orally at the hearing and subsequently revised)
1 In May 2006 the council decided to grant a permit for construction of a games room, boat shed, five accommodation units and vegetation removal in accordance with endorsed plans. A Notice of Decision to Grant a Permit subject to conditions was issued on 17 May 2006.
2 There was one objector who lodged an application for review with the Tribunal on 25 May 2006. On 12 July 2006 the objector applied to withdraw the application for review. The withdrawal was consented to by the council. By order dated 13 July 2006 the Tribunal gave leave for the application for review to be withdrawn.
3 On the same day, 13 July 2006, the Minister for Planning approved Amendment C58 to the Bass Coast Planning Scheme, which changed the zoning of the land from Rural Zone to Farming Zone.
4 The council is concerned that the five accommodation units constitutes "group accommodation". With the change in zone, group accommodation has become a section 2 use in the Farming Zone subject to conditions. The conditions are not met in this case. Consequently, the use is prohibited and a permit could not now be granted.
5 The question that the council asks the Tribunal to determine by way of declaration is whether it may issue a permit in accordance with the notice of decision to grant a permit or whether it is precluded from doing so by reason of the change in zoning and the fact that the use is now prohibited.
6 I find that the council can issue the permit notwithstanding the change in zoning of the land. The pivotal step was the decision to grant a permit in May 2006. At that time, there was no legal impediment to the grant of a permit. Once a decision to grant a permit is made under section 61 of the Planning and Environment Act 1987, a responsible authority is obliged to issue the permit unless there are objectors. If there are objectors, the responsible authority must not issue the permit to the applicant unless there is no application for review to the Tribunal by an objector or, if an application for review is made, until the application is determined by the Tribunal or withdrawn.[1] In the present case, the application for review was withdrawn with the result that there is now no impediment to the issue of the permit.
7 The issue of a permit is an administrative action that implements a decision. The decision to grant a permit and the issue of the permit are separate actions. The relevant law is the law that applied at the time the decision to grant the permit was made, which in the present case was the law on 17 March 2006. Following withdrawal of the application for review, no further decision was required to be made. Rather, the decision made by the council is the basis upon which the permit must be issued pursuant to section 64(3)(b) of the Planning and Environment Act 1987. The amendment to the Bass Coast Planning Scheme does not affect the validity of this decision to grant the permit for several reasons.
8 Section 28(2) of the Interpretation of Legislation Act 1984 expressly preserves acts done under the previous planning scheme in the case of amendments and preserves rights and privileges acquired or accrued under the previous provisions.[2] Planning schemes are subordinate instruments within the meaning of section 38 of the Interpretation of Legislation Act 1984. The decision to grant a permit was something that was duly done under that subordinate instrument within the meaning of section 28(2)(d). Thus the amendment does not affect the decision previously made under the planning scheme. In addition, the Christian Brethren Trust could be said to have acquired or accrued a right under the planning scheme to have a permit issued in accordance with that decision in the event that an objector's application for review was withdrawn.[3]
9 Once a valid decision to grant a permit is communicated to the permit applicant that decision cannot, in the absence of statutory authority, be revoked or recalled by the responsible authority.[4] The council is therefore bound to implement its decision by the issue of a permit.
10 Section 50(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that subject to sub-section (2), the commencement of a proceeding for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. Sub-section (2) states that this does not apply if the enabling enactment provides otherwise. Section 64(3) of the Planning and Environment Act 1987 operates to prevent a responsible authority taking action to implement its decision to grant a permit by issuing the permit in certain circumstances if there are objectors. But once the circumstances that prevent the taking of action to implement the decision no longer apply, the original decision can be implemented. The commencement of a proceeding for review of the decision has not affected the operation of the decision or the validity of the decision, but has simply prevented the taking of action to implement the decision. Upon withdrawal, action can then be taken to implement the decision.
11 If the application for review had not been withdrawn and the Tribunal was called upon to make its own decision about whether or not to grant a permit, the situation would be different. In that circumstance, the pivotal decision would be the decision by the Tribunal and it would be required to make a decision in accordance with the planning scheme as at the date of determination of the application for review in accordance with the principle established in Ungar v City of Malvern[5].
12 However, in making this observation I am not thereby concluding that if the application for review had been required to be decided by the Tribunal rather than being withdrawn, the Tribunal would have been bound to set aside the council's decision and decide not to grant a permit for construction of the five accommodation units because of the change in zoning and the fact that "group accommodation" is now a prohibited use if the conditions opposite it in section 2 of clause 35.07-1 of the planning scheme cannot be met. It seems likely that the land may have existing use rights in which case the existing use provisions of clause 63 would apply. In particular, clause 63.05 provides that a use in section 2 or 3 of the zone for which an existing use right is established may continue provided no building works constructed or carried out without a permit. It may therefore have been possible to grant a permit for construction of five additional accommodation units pursuant to clause 63.05 notwithstanding the change in zoning, the permit being for construction not use.
13 Ultimately, it is not necessary for me to decide this issue because, for the reasons which I have set out above, I can make a declaration that the council must issue a permit in accordance with its Notice of Decision to Grant a Permit dated 17 May 2006.
[1] See section 64(3) of the Planning and Environment Act 1987
[2] Section 28(2) of the Interpretation of Legislation Act 1984 is in the following form:
Where a subordinate instrument or a provision of a subordinate instrument -
(b) expires, lapses or otherwise ceases to have effect -
the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -
(c) ...
(d) affect the previous operation of that subordinate instrument or provision or anything duly done or suffered under that subordinate instrument or provision;
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;
(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that subordinate instrument or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect. (emphasis added)
[3] Based on the reasoning of the Court of Appeal in Felman v Law Institute of Victoria [1998] 4 VR 324, 333 and High Court of Australia in Esber v Commonwealth [1992] HCA 20; [1992] 174 CLR 430, 440-1
[4] See J R Hunt Real Estate Pty Ltd v Hornsby SC [1997] NSWLEC 34; (1997) 130 LGERA 45, 50; [1997] NSW LEC 34
Bass Coast SC
Christian Brethren Trust [2006] VCAT 1958
(1997) 130 LGERA 45