(a) the person who referred the matter to the Tribunal; and

(3) If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.

(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following -

(a) make any declaration that it considers appropriate;

(i) the planning authority must not adopt the amendment or a specified part of the amendment; or

(ii) the Minister must not approve the amendment or a specified part of the amendment -

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

(7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.

(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.

1. Other specific provisions relevant to this proceeding are sections 29(1) and 31(1) of the Planning and Environment Act 1987.
2. Section 29(1) provides as follows:
   1. Adoption of amendment

(1) After complying with Divisions 1 and 2 in respect of an amendment or any part of it, the planning authority may adopt the amendment or that part with or without changes.

1. Section 31(1) provides as follows:
   1. Planning authority to submit amendment to Minister

(1) A planning authority other than the Minister must submit an adopted amendment to the Minister together with the prescribed information.

1. The applicant relies upon two grounds. It says:
   • Having adopted the amendment on 16 February 2015 pursuant to section 29(1) of the Planning and Environment Act 1987, the planning authority failed to submit the adopted amendment to the Minister together with the prescribed information pursuant to section 31 of the Act.
   • Further or alternatively, if section 20 of the Meeting Procedures and Common Seal Local Law 2013 (the Local Law) applied to the council acting in its capacity as planning authority (which is denied), by reason of the February resolution having been acted upon prior to the time on 16 February 2015 when notice of the rescission motion was given, neither the purported rescission motion nor the purported abandonment motion were capable of being a valid motion proposed pursuant to section 20 of the Local Law.
2. With respect to the first ground, the applicant contends that having adopted the amendment, the council had performed its function under section 29 of the Act, that its power and function under that provision was accordingly exhausted, and that by section 31 of the Act it was obliged to submit the adopted amendment, together with the prescribed information, to the Minister. Having exhausted its function under section 29 of the Act, the applicant says there was no express or implied power by which the council, in its capacity as planning authority, was entitled to rescind the adoption of an amendment under Division 3 of Part 3 of the Planning and Environment Act 1987. The applicant further contends that the purported revocation of the adopted amendment and the purported resolution to abandon the amendment demonstrated an intention on the part of the council not to comply with the procedural requirements of the Act, specifically the requirement to submit the adopted amendment to the Minister pursuant to section 31 of the Act.
3. The applicant relies upon the principle that where a statute confers a power or function on a decision-maker, once that power has been exercised or the function performed, the purpose of its creation is fulfilled and the power or function is exhausted. Where the decision-maker seeks to reconsider the exercise of the power or performance of function, the power to do so must be conferred by the statute.[2]
4. In some cases involving planning decisions made by a council, it has been held that in the absence of express statutory power, such a decision cannot be subsequently withdrawn.[3] Division 3 of Part 3 of the Planning and Environment Act 1987 contains no express power permitting a planning authority to rescind or amend an adopted amendment once adopted pursuant to section 29 of the Planning and Environment Act 1987.
5. In cases involving different statutory provisions, it has been held that a power of rescission may in some circumstances be implied. Whether such a power will be implied depends upon the construction of the provisions under consideration having regard to their purpose and context.[4]
6. In some cases, an implied power of rescission has been found:

1. where the earlier decision proceeded on a wrong factual basis; 2. where the earlier decision involved a serious and important mistake or error; and

1. where the decision has been affected by fraud or misrepresentation.
2. None of these circumstances apply in the present case. Whitehorse City Council does not contend that the February resolution proceeded on a wrong factual basis, or allege any serious or important error, when purporting to rescind the adopted amendment and abandon the amendment.
3. Generally, interests of finality will tend against a statutory construction that implies a power of rescission on the part of a decision-maker.
4. With respect to the second ground relied upon, the applicant contends that the provisions of the Meeting Procedures and Common Seal Local Law 2013 (Local Law) do not apply to Whitehorse City Council when acting in its capacity as planning authority. Even if section 20 of the Local Law[5] applied to the council acting in its capacity as planning authority, neither the purported rescission motion nor the purported abandonment motion were capable of being a valid motion proposed pursuant to section 20 of the Local Law. The applicant then elaborated on various reasons why this was not so.

1. The council contends that the grounds advanced and the relief sought by the applicant are beyond the Tribunal's jurisdiction.
2. However, if this is not the case, the council submits that the Tribunal should conclude as follows:
   • The Tribunal should be satisfied that the terms of the Planning and Environment Act 1987 (and in particular Part 3 thereof), when properly construed, support the conclusion that a planning authority has an implied power to reconsider, or rescind, a decision made under section 29(1). Thus, if a planning authority can lawfully rescind or vary an earlier decision made by it pursuant to section 29(1) of the Act to adopt the planning scheme amendment at any time prior to the adopted amendment being submitted to the Minister for approval, and it does so, a planning authority is therefore able to subsequently determine to abandon that planning scheme amendment.
   • In the present case, by motion passed on 16 March 2015, the planning authority validly rescinded its earlier decision to adopt the amendment; and by further motion passed on 16 March 2015, the planning authority validly abandoned the amendment.
   • There has accordingly been no failure to comply with any of the relevant provisions of Parts 3 and 8 of the Act and (more specifically) no failure to comply with section 31 of the Act.

1. Before determining the issues contended by the parties about the council's power to rescind the resolution to adopt the amendment and then abandon it, I must first decide if I have jurisdiction to make such decisions.
2. With respect to the applicant's ability to make an application under section 39, it is common ground that Canaan Holdings Pty Ltd (Canaan) is substantially or materially affected by the actions (or inactions) of the planning authority; that the amendment has not yet been approved; and that the application was made within one month of Canaan being aware of the asserted failure to comply with Division 3 of Part 3 of the Act. Consequently the applicant meets the criteria set out in section 39(1) for referring a matter to the Tribunal.
3. It is also common ground that the council adopted the amendment on the 16 February 2015 after complying with Divisions 1 and 2 in respect of the amendment as required by section 29(1) of the Act.
4. Further, it is not disputed that section 31 of the Act provides that the planning authority must submit an adopted amendment to the Minister.
5. Clause 7 of Minister's Direction No.15, The Planning Scheme Amendment Process, provides that a planning authority must submit an adopted amendment under section 31 of the Act, together with the prescribed information, within 10 business days of the date the amendment was adopted. Under section 12(2)(a) of the Act, which sets out the duties and powers of planning authorities, the planning authority must have regard to the Minister's directions. Minister's directions are not mandatory but it is not denied that the council did not comply with the Minister's directions in this instance and that it has not submitted the adopted amendment to the Minister.
6. The critical difference between the positions put by the applicant and the council concern the legal status of the February resolution. Does it remain a validly adopted amendment or was the decision effectively rescinded by the council's rescission motion on 16 March 2015? If the council was able to rescind the February resolution to adopt the amendment, was it then able to abandon the amendment on the grounds set out in the March resolution?
7. These issues raise the fundamental question of whether, upon adopting the amendment, the planning authority was functus officio in respect of its power to decide whether or not to adopt the amendment. Only if this question is determined in the negative will it become relevant to consider whether there was an effective revocation of the adopted amendment and a valid decision to abandon the amendment.
8. These are all questions of law. Before I make any ruling upon them, I must have the power or jurisdiction to do so having regard to the provisions of section 39 of the Act.
9. It is well accepted that there are limits to the ambit of section 39 and the relief it can provide.
10. Section 39 is headed 'Defects in Procedure'. For the reasons set out in Coastal Estates Pty Ltd v Bass Coast Council and Ors[6], section 39 is intended to deal only with procedural defects in terms of a failure of the Minister, a planning authority or a panel to comply with Division 1, 2 or 3 of Part 3 or Part 8 of the Act. Section 39 enables the Tribunal to halt the amendment process and send it back to the point at which it went off the rails. It is not intended that the Tribunal should have any substantive decision making role touching upon the merits of an amendment and whether or not it should be adopted or approved.
11. In support of its argument that the Tribunal has no power to consider the validity of the council's March resolution to rescind the amendment and then abandon it, the council relies upon the limitation on the Tribunal's power set out in section 39(5), which provides as follows:

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

1. The council also says that pursuant to section 4(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998, a person makes a decision if the person "makes, suspends, revokes or refuses to make a decision ...". Further, pursuant to section 4(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998, for the purposes of the Act or an enabling enactment, "a decision is made under an enactment if it is made in the exercise or the purported exercise of a function conferred or imposed by or under that enactment". According to the council, it follows that the Tribunal has no power to vary, or set aside, the decisions of the council to pass the rescission motion or the abandonment motion. The express removal of the Tribunal's powers to set aside or vary a relevant order serves to confirm that section 39 is not intended to be used, and cannot be used, as a vehicle by which to challenge either the merits or the legality of a decision, or a purported decision, made by a planning authority.
2. However, I do not consider that I am being called upon to vary or set aside the decisions of the council to pass the rescission motion or the abandonment motion. I am simply being asked to make declarations about whether the council has complied with its obligation under section 31(1) and, in order to do so, I must determine whether there was a validly adopted amendment to submit to the Minister. I do not consider that this transgresses section 39(5) of the Planning and Environment Act 1987.
3. Coastal Estates was a case that dealt with an alleged failure of a panel to comply with the Act in considering and hearing submissions and in reporting its findings on a variety of issues. The applicant contended for a broad interpretation of this expression and what may constitute a 'failure to comply'. The allegations it raised fell into three main categories:

1. failing to accord procedural fairness; 2. taking into account irrelevant considerations;

1. making findings or recommendations: 1. not open on the evidence; and/or 2. wrong in law; and/or 3. manifestly unreasonable in the Wednesbury sense.

The Tribunal concluded that the jurisdiction of the Tribunal under section 39 of the Planning and Environment Act 1987 does not enable a review of substantive errors by the panel, but is limited to procedural defects.

1. Deputy President Dwyer concluded that errors by the panel under the first two categories, even if proven, are not open to challenge before the Tribunal, and fall outside of the limited jurisdiction of the Tribunal under section 39.[7] With respect to the third category, he said:

[27] But what of the substance of the panel's findings? It is clear that s 39 is not intended to allow for the Tribunal to conduct a merits review of the panel's findings and recommendations. Equally, in my view, s 39 is not intended to facilitate a broader administrative law review of the panel's findings and recommendations. If the panel has failed to take into account relevant considerations, or taken into account irrelevant considerations, or misdirected itself on the application of the law, or reached a seemingly untenable conclusion on the evidence, these are more substantive errors that stem from the panel's reasoning or use of the information before it rather than defects in the procedures followed by the panel in gathering that information or preparing its report. In my view, substantive errors of this nature are not reviewable under s 39.

1. In support of this conclusion he relied upon the Court of Appeal decision in East Melbourne Group Inc v Minister for Planning[8] saying:

[30] First, there is recent case-law support for this view. In East Melbourne Group Inc v Minister for Planning, the Court of Appeal, (whilst allowing the appeal on other grounds) endorsed the trial judge's interpretation of what was meant by the expression "failure to comply..." etc in s 39(7). The trial judge had essentially held that:

• the provision was concerned with procedural non-compliance, and not with jurisdictional error or substantive ultra vires; and
• by reference to the history of the provision, s39 was plainly directed to 'defects in procedure' as the heading to the section states.

The majority judgement of the Court of Appeal concluded that "substantially for the reasons stated by His Honour", s 39(7) "only addresses non-compliance with procedural requirements" and "does not apply to decisions that are tainted by jurisdictional error".

1. In reaching this conclusion in East Melbourne Group, the Court of Appeal said[9]:

[370] ... The provision, when considered within the context of the whole legislative instrument,[10] is not intended to remove the Court's capacity to ensure that administrative powers are exercised according to law.[11] In consequence, the end product of a fatally flawed exercise of the exemption discretion is not protected against relief at the instance of a person with sufficient standing.

1. In the present case, I am not being asked to make any rulings about the merits of the amendment. I am being asked to make declarations about procedure only. Was the council obliged to refer the adopted amendment to the Minister pursuant to section 31(1)? The only reason why the council would not be obliged to submit the adopted amendment to the Minister is if the decision to adopt the amendment has been lawfully rescinded. In my view, this is a finding on a question of law that I must make in order determine whether the council has failed to comply with this procedural requirement. In my view, this falls within the ambit of the type of procedural defects the Tribunal is entitled to consider under section 39.
2. I am not purporting to determine whether the council exercised its purported discretion to rescind the adopted amendment in accordance with law in terms of whether it accorded procedural fairness, took into account irrelevant considerations or was manifestly unreasonable in the Wednesbury sense. These would constitute substantive administrative law errors. Rather, I am concerned with whether it had any power at all to even purport to make a decision to rescind, not with how it made that decision. Consequently, I consider that this is a jurisdictional finding I am entitled to make that is fundamental to determining whether there has been a failure of procedure by the council to comply with section 31(1).
3. For these reasons, I find that I do have jurisdiction to determine the key issues in this case.

1. The question to be determined is whether the council, as a planning authority, had power to rescind the February motion to adopt the amendment and then pass a subsequent motion to abandon the amendment. This turns on whether the council, as a planning authority, was functus officio once it adopted the amendment.
2. The question depends on whether there is an express or implied power on the part of a planning authority to rescind a decision to adopt an amendment.

1. Whilst there is express power to adopt an amendment with or without changes,[12] there is no express provision in the Planning and Environment Act 1987 to rescind an adopted amendment. Nor is there any express power in the Local Government Act 1989.
2. I do not consider that the council can rely on the Local Law as the source of its power to rescind the amendment. The Local Law is subordinate legislation. It does not confer a separate power on a council, but simply sets out the procedure which must be followed in order to rescind a resolution. The power to rescind must be derived from another source.
3. As the council could not refer me to any express power, it relies upon an implied power to rescind its previous resolution to adopt the amendment. The council relies on section 40(a) of the Interpretation of Legislation Act 1984 as conferring such an implied power. This provision provides as follows:
   1. Exercise of powers and performance of duties

Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed -

1. The council says that the power given by section 29(1) to adopt an amendment can be exercised from time to time and this implies a power to rescind and exercise the power again.
2. However, I am not persuaded that section 40(a), of itself, necessarily implies that the power to do something carries with it the power to undo that thing. The wording of section 40(a), which deals with the exercise of powers and performance of duties under an act or subordinate instrument, must be contrasted with section 27 of the Interpretation of Legislation Act 1984, which deals with the implied power to repeal or amend subordinate instruments. Section 27 provides:
   1. Implied power to repeal or amend subordinate instruments

Where an Act confers power to make a subordinate instrument the power shall, unless the contrary intention expressly appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any), to repeal or amend a subordinate instrument made in the exercise of that power.

1. Section 27 sets out expressly that a power to make a subordinate instrument includes a power to repeal or amend such instrument, unless the contrary intention expressly appears. The express mention of an implied power to amend or repeal (or rescind) in the context of making a subordinate instrument and the absence of express mention of such implied power in the context of exercising a power or performing a duty under an act or subordinate instrument implies that section 40(a) was not intended to carry with it an implied power of rescission. Rather, it means what it says. A power may be exercised and a duty may be performed from time to time as the occasion requires.
2. So what does this mean - the exercise of a power "from time to time as occasion requires"?
3. First, there must be a power to exercise the relevant power or perform the relevant duty conferred by an Act or subordinate instrument. It is not section 40(a) which confers this power.
4. Second, the power may be exercised at any time when the set of circumstances exist that give rise to the power to exercise the power or perform the duty. Those circumstances will be determined by the Act or subordinate instrument conferring the power. The circumstances giving rise to the power may arise repeatedly in different factual scenarios; for example, under the Planning and Environment Act 1987 when different amendments require adoption or different planning permit applications need to be determined. The power may even be exercised in respect of the same set of factual circumstances so long as any previous exercise of power regarding those same circumstances has been lawfully set aside or the Act or subordinate instrument enables a further exercise of power to occur. "As occasion requires" means when a lawful occasion arises.
5. One example of such a lawful occasion arising in respect of an adopted amendment could be upon a referral to the Tribunal under section 39 of the Planning and Environment Act 1987 alleging a procedural defect. If the Tribunal found that there had been a failure by the Minister, a planning authority or a panel to comply with Division 1, 2 or 3 of Part 3 or Division 8, and the Tribunal directed that the Minister must not approve the amendment unless the planning authority or a panel takes actions specified by the Tribunal, this might, by necessary implication, require a planning authority to reconsider whether to adopt or abandon an amendment.
6. However, this is different to a power to rescind and it is not a circumstance that has arisen in the context of this case. Further, the implied power to reconsider would arise under the provisions of the Planning and Environment Act 1987, not section 40(a) of the Interpretation of Legislation Act 1984. It is a situation though where the power to adopt an amendment under section 29(1) could be exercised a second time in respect of the same amendment - i.e. "from time to time" - because, in the words of section 40(a), the "occasion requires".
7. In my view, there is no justification for reading into section 40(a) an implied power to rescind or revoke a decision to exercise a power or perform a duty. That implied power is conspicuous by its absence in the wording of section 40(a) compared to the express inclusion of such an implied power in section 27 regarding the making of a subordinate instrument and section 41A regarding the making of an instrument, which is not a subordinate instrument.
8. I do not consider that section 27 applies in the present case. In and of itself, the adoption of an amendment is not the making of a subordinate instrument. A planning scheme is a subordinate instrument. A planning scheme may be amended by an amendment approved pursuant to the provisions of the Planning and Environment Act 1987. However, the adoption of an amendment by the planning authority is no more than one necessary procedural step along the way to approval of the amendment.
9. The council also contended that the power to rescind the decision to adopt the amendment could be implied from section 41A of the Interpretation of Legislation Act 1984, which provides as follows:

41A Power to make instrument includes power to revoke or amend

If an Act or subordinate instrument confers power to make, issue or grant an instrument (not being a subordinate instrument) the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any), to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.

1. The council contended that whilst it accepted that the decision of a planning authority to adopt an amendment is not a decision that concerns the grant of an administrative instrument, such as a planning permit, that is not the end of the matter because the word "instrument" in section 41A covers both administrative and legislative instruments.[13] An amendment constitutes documents and when adopted it has immediate consequences, such as under section 60(1A)(h) and section 84B(2)(a) of the Planning and Environment Act 1987[14]. The council says that if an adopted amendment is an instrument, ipso facto it is an instrument to which section 41A of the Interpretation of Legislation Act 1984 applies. Therefore, the planning authority has power to rescind an adopted amendment.
2. I am not persuaded by this argument. I do not consider that an adopted amendment can be characterised as an "instrument" for the purpose of section 41A. It has been held in a context within which the equivalent provision in the Commonwealth Acts Interpretation Act 1901 was under consideration that the ordinary meaning of an "instrument" as a "formal or official legal document" is the appropriate meaning.[15] An adopted amendment may evidenced by written documents and maps but I do not consider that such evidence constitutes an "instrument" within the meaning of section 41A. As previously noted, a planning scheme is a subordinate instrument and there is a power under section 27 to repeal or amend such subordinate instrument. However, the type of instrument referred to in section 41A is not a subordinate instrument. The adoption of an amendment under section 29 of the Planning and Environment Act 1987 is one step in the process of amending a planning scheme. In my view, it is a procedural step that will be evidenced in writing, but in itself is not an instrument to which section 41A applies.
3. However, even if I am wrong about this and it could be said that an adopted amendment is an instrument under section 41A, the power given by section 41A to repeal, revoke or rescind the instrument must be exercised in the same manner and is subject to the same conditions or limitations as the original exercise of the power to make the instrument. This would mean that the same procedure required under Divisions 1 and 2 of the Planning and Environment Act 1987 must be complied with as required by section 29(1) when adopting an amendment before the adopted amendment could be revoked or rescinded under section 41A of the Interpretation of Legislation Act 1984. That has not occurred. This is a further reason why section 41A is not relevant.
4. Therefore, because I do not consider that section 40(a) of the Interpretation of Legislation Act 1984 implies a power to rescind, such a power must be found elsewhere.
5. Under section 3(F) of the Local Government Act 1989 the council has very wide powers. It is generally accepted that a council has power in the ordinary course of carrying out its business to rescind or vary its resolutions[16]. At times, that power has been upheld when the decisions relate to town planning matters[17]. However, those decisions have been made in the context of the relevant planning legislation applicable. Such legislation is not the same as applies to amendments under the Victorian Planning and Environment Act 1987.
6. In the present case however, the council is not acting as the local council under the provisions of the Local Government Act 1989. Rather, it is acting as a planning authority under the provisions of the Planning and Environment Act 1987.
7. The Planning and Environment Act 1987 sets out who may be a planning authority. Various persons and bodies may fulfil this function:
   • Section 8 - the Minister is a planning authority under this Act;
   • Section 8A - a municipal council is a planning authority for any planning scheme in force in its municipal district;
   • Section 8B - a municipal council may be a planning authority for any planning scheme applying to an area adjoining its municipal district for which it is authorised; and
   • Section 9 - authorised Ministers and public authorities may be planning authorities also.
8. Section 12 sets out the duties and powers of planning authorities. There is no mention in this section of any procedure for decision making or powers of rescission of decisions by planning authorities.
9. In my view, it is reasonable to assume that all the different persons and bodies that may be a planning authority under the Act must have the same powers with respect to amendments to planning schemes. It would not be reasonable to have one planning authority able to exercise powers that another planning authority could not exercise unless this was specifically set out. Thus, I do not consider that the legislation contemplates having a planning authority, which happens to be a municipal council, able to exercise an implied power to rescind a decision to adopt an amendment on the basis that as a municipal council it may rescind its motions, if the same power to rescind is not open to a planning authority that is the Minister or some other authorised public authority, which does not have the same general powers of a municipal council.
10. Therefore, I find that any power to rescind an adopted amendment must be available to any planning authority and cannot rely upon the status of the council as a municipal council under the Local Government Act 1989.
11. Decisions by Courts and Tribunals are consistent in holding that whether a person or body has exhausted its power to make a decision upon the making of a decision, i.e. whether it is functus officio, will depend on the provisions of the relevant legislation. Different outcomes invariably turn upon the interpretation of the relevant legislation. This was recognised in the decision of Finkelstein J of the Federal Court of Australia in Leung v Minister for Immigration and Multicultural Affairs[18] in his discussion of the principal of functus officio where he said:

... If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Blacks Law Dictionary (5th ed 1979) functus officio is defined as "a task performed" and it is applied to "an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue".

It is for this reason that where it is sought to reconsider the exercise of a statutory power or the performance of a statutory function it is necessary to find the power to do so in the statute. That power may be express or it may exist by way of implication. In the case of some statutes the power will be implied as a result of the application of s 33(3) of the Interpretation Act. The circumstances in which s 33(3) of the Interpretation Act will be held to apply to reconsider the grant or issue of an instrument have not been finally settled. There are cases that have held that s 33(3) only applies to the grant or issue of a document of a legislative character: see e.g. Australian Capital Equities Pty Ltd v Beale (1993) 41 FCR 242 at 256-257 per Lee J. There are other cases that support the view that the section can have application to the grant or issue of any instrument: see e.g. Re Brian Lawlor 1 ALD 167 at 172 per Brennan J. It is not necessary to resolve this difference of opinion.

When one turns to consider the circumstances in which a power of reconsideration will be implied an examination of the cases shows that no coherent set of principles has as yet been developed. The courts have been required to choose between two competing interests. On the one hand there is the desirability for the administration to be able to correct decisions arrived at as a result of an error of law or an error of fact. In some cases it may also be desirable that an administrative decision be altered when there has been a change in policy. On the other hand, if a decision is favourable to an individual its reconsideration may cause a real sense of grievance: see generally M Akehurst, "Revocation of Administrative Decisions" [1982] Pub Law 613.

1. Finkelstein J then proceeded to examine a range of decisions where the power of reconsideration has not been implied and other cases where it has been held that a power to reconsider should be implied.
2. With respect to those cases where a power to reconsider was implied, invariably it was a situation where there was some form of error associated with the decision, for example:
   • Where the earlier decision proceeded on a wrong factual basis;
   • Where the earlier decision involved a serious and important mistake or error; or
   • Where the decision was affected by fraud or misrepresentation.
3. Usually such errors would constitute substantive administrative error. Having regard to what was said in Coastal Estates and East Melbourne Group Inc v Minister for Planning, they would not be open to relief under section 39 of the Planning and Environment Act 1987. In such cases the Supreme Court may set aside the decision of a planning authority tainted by such error. If such errors could be characterised as procedural and constitute a failure to comply with Division 1, 2 or 3 of Part 3 or Part 8 of the Act, the Tribunal could make declarations or directions under section 39. Alternatively, if such matters were brought to the attention of the Minister, the Minister might exercise his discretion to refuse to approve the amendment pursuant to section 35(1)(b) or may propose to make changes to the amendment and direct the planning authority to give notice of any changes to the amendment pursuant to section 33.
4. Hence, if such serious errors affecting the decision of a planning authority to adopt an amendment were discovered, there are various ways in which those errors might be addressed. However, none of them contemplate a rescission of the amendment. Each of these courses of action involve a procedure or process, which is not reliant on the planning authority rescinding its decision to adopt the amendment. In my view, the discovery of such serious errors would not necessitate or justify implying into the Planning and Environment Act 1987 a power on the part of the planning authority to rescind a resolution found to be tainted by such error because there are other ways of dealing with the error.
5. However, in the present case, there is no suggestion that such errors exist. There is no assertion that the February resolution proceeded on a wrong factual basis, and no allegations of any serious or important error in the decision to adopt the amendment. Therefore, I consider this case falls within that category of cases considered by Finkelstein J in Leung where the power of reconsideration is not implied.
6. One such case was Sloane v Minister for Immigration, Local Government and Ethnic Affairs[19]. In considering the proposition that reconsideration of a statutory decision may be contemplated or authorised by the statute, French J said:

[30] ... The question is one of statutory construction. It is not without difficulty and is attended by policy considerations which are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances. ...

[31] Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken.

[32] The general question whether an implication should be found in the express words of a statute has been said to depend upon whether it is proper, having regard to accepted guides to construction, to find the implication and not on whether the implication is "necessary" or "obvious" - Bennion - Statutory Interpretation (1984) p 245. While implication can often be justified by necessity, it should not be limited by that condition. The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention. Where a statute confers a power there is ample support for the proposition that the donee of the grant will enjoy the rights and powers necessary to the exercise of the primary grant. The so called "inherent jurisdiction" or "implied incidental power" of a statutory court derives from that general principle - Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 623; [1987] HCA 23; 71 ALR 457 at 463.

[33] While it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act 1958 as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.

1. The proposition that arises from these authorities is whether it would be proper to imply a power for the planning authority to reconsider a decision to adopt an amendment having regard to the purpose and context of the Planning and Environment Act 1987.
2. Nothing put to me by the council persuades me that it would be necessary or proper to imply such a power of reconsideration or rescission. There is a clear procedure set out in the Planning and Environment Act 1987 of the steps necessary to amend a planning scheme. These steps require the implementation of principles of natural justice in terms of giving notice to various people and appropriate public participation in the decision making by way of submissions and panel hearings. Such participation is in accordance with the objectives of the planning framework established by the Act pursuant to section 4(2)(h) of the Act.
3. A planning authority has two clear opportunities to decide to abandon an amendment - first when it needs to consider submissions under section 23(1)(c) and then after it receives and considers the panel report under section 27(1). By contrast, the planning authority is only provided with one opportunity under the Act to adopt the amendment (with or without change). That may only occur in accordance with section 29(1) after complying with Divisions 1 and 2 of the Act. Once adopted, an amendment that is adopted but not yet approved acquires a particular status as something that the responsible authority may consider and the Tribunal must (where appropriate) consider when determining any permit application[20]. After adoption, the next step is for the planning authority to submit the adopted amendment together with the prescribed information to the Minister under section 31. There are then a whole series of further steps that the Minister must or may undertake before finally approving an amendment or refusing to approve it.
4. I consider that considerable uncertainty could arise if a power was implied that planning authorities could rescind their adoption of an amendment. This would affect the status of the adopted amendment and any decisions by a responsible authority or the Tribunal based on it. For the reasons I have previously outlined, if an error of fact or law is discovered after adoption but before approval by the Minister, there are mechanisms by which that error may be addressed. But just because the planning authority has a change of heart about the substance of an amendment after it adopts it does not constitute, in my mind, a proper reason to imply a power in any planning authority to subsequently revoke or rescind the decision to adopt.
5. There is no requirement under the Planning and Environment Act 1987 for a planning authority to give notice of its decision to adopt an amendment to any person. The requirement to submit an adopted amendment to the Minister together with the prescribed information cannot be equated with the requirement in the Act for a responsible authority to give notice of its decision to grant or refuse to grant a planning permit to various persons. Therefore, there can be no argument that before the planning authority 'perfects' its decision by giving notice it is free to reconsider its decision and rescind the decision to adopt.
6. For this reason, I do not consider that comments by Courts or Tribunals relating to whether a person is functus officio once a power is exercised in circumstances when notice is required to be given to someone are relevant. Therefore, although the applicant says that it was given notice of the decision by reason of a company representative being present in the gallery on 16th February 2015 when the council resolved to adopt the amendment, I do not consider this is relevant.

1. One of the issues raised in this case is whether the council, as planning authority, had power to abandon the amendment by way of the March resolution. This depends upon the status of the February resolution and whether the council had power to rescind its decision to adopt the amendment.
2. The power to abandon an amendment does not arise expressly under section 29 of the Planning and Environment Act 1987. The power to abandon is explicitly conferred by section 23(1)(c) at the time when a planning authority considers an amendment before referring it to a panel. The power is also impliedly conferred by section 27(1), which provides that the planning authority must consider the panel's report before deciding whether or not to adopt the amendment.
3. Section 28 confers an obligation on the planning authority to tell the Minister if it decides to abandon an amendment or part of an amendment. It is the equivalent of section 31 relating to adoption of an amendment.
4. The power to abandon an amendment after considering the panel's report is also implied by section 29(1), which confers a discretion on the planning authority to adopt an amendment - "the planning authority may adopt the amendment ... with or without changes".
5. By reason of the operation of the provisions of the Planning and Environment Act 1987 relating to the power to abandon an amendment and the ability of council to exercise its powers under the Act from time to time as occasion requires by virtue of section 40(a) of the Interpretation of Legislation Act 1984, I find the council had power to abandon the amendment by way of its March resolution provided it had the power to rescind its decision to adopt the amendment.
6. However, as I have not found the council had any express or implied power, as a planning authority, to rescind its February resolution to adopt the amendment, I find that the March resolution to abandon the amendment was not valid. This is because the council's power under section 29 to either adopt the amendment or part of it, or to abandon it was exhausted once it had performed its function under section 29 on 16 February 2015. I find that when the council decided to adopt Amendment C153 to the Whitehorse Planning Scheme in line with the recommendations made by the Panel, with the exception of the numbering sequence recommended, the council was functus officio with respect to the adoption or abandonment of the amendment.

Conclusion as to whether the council was functus officio

1. In summary and for the reasons set out above, I find that there is no express or implied power in the Planning and Environment Act 1987 or elsewhere for a planning authority to reconsider or rescind its decision to adopt an amendment properly made under section 29(1) of the Planning and Environment Act 1987.
2. I therefore conclude that once the council, as planning authority, made its decision on 16 February 2015 to adopt the amendment it was functus officio. Its power to adopt or abandon the amendment in whole or in part was spent. The March resolution to rescind and abandon the amendment was of no force or effect.

1. The implications of my finding that the council, as planning authority, had no power to rescind its resolution to adopt the amendment means that the amendment as adopted by the February resolution remains a valid decision and the council, as planning authority, is obliged to submit it to the Minister pursuant to section 31(1).
2. Having made these findings, it is not necessary to examine the second ground relied upon by the applicant relating to compliance with the Local Law.
3. I am satisfied that the council, in its capacity as planning authority, has properly adopted the amendment under section 29(1) and this adoption has not been rescinded. I therefore find it is appropriate to make the first declaration.
4. The council has not submitted the amendment to the Minister with the prescribed information. The council has not done so because of its March resolution. However, because I find that the council had no power to pass either aspect of the March resolution - to rescind the amendment or to abandon it - I am satisfied that the council has failed to comply with section 31 and it is appropriate to make the second declaration.
5. With respect to the third declaration, I consider that it is also appropriate to make this declaration.
6. Under section 39(4)(a) I may determine a matter referred to the Tribunal under section 39 and make any declaration that I consider appropriate. I am limited in what I may direct the planning authority or Minister to do, but I do not propose to direct the planning authority in any way. A declaration that, as the planning authority, the council is obliged to submit the adopted amendment to the Minister in accordance with section 31 of the Act together with the prescribed information should be sufficient to ensure that the council complies with the law.

[1] The applicant originally sought declarations under both section 39 and section 149B of the Planning and Environment Act 1987. At the commencement of the hearing, the applicant was given leave to amend its application under section 39 of the Act and to withdraw its application under section 149B. The applicant now only seeks those declarations under section 39(4) set out following. The application under section 149B was withdrawn.

[2] Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313; (1997) 150 ALR 76 at 84 (per Finkelstein J with whom Beaumont J agreed)

[3] JR Hunt Real Estate Pty Ltd v Hornsby Shire Council [1997] NSWLEC 34; (1997) 130 LGERA 45 at 49; Pearson v Leichhardt Municipal Council ((1997) 93 LGERA 206 at 211

[4] Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 311

[5] Section 20 of the Meeting Procedures and Common Seal Local Law 2013 provided as follows:

20.1 A Councillor may propose a motion to amend or rescind a previous resolution of the Council provided:

20.1.2 the notice of motion is signed by three (3) Councillors and delivered to the Chief Executive Officer no later than 24 hours following the meeting of Council at which the motion proposed to be rescinded or amended is adopted.

20.2 A resolution will be deemed to have been acted upon if:

20.2.1 its contents have or substance has been formally communicated to a person whose interests are materially affected by it;

20.2.2 a statutory process has been commenced so as to vest enforceable rights in or obligations on Council or any other person.

20.3 Rescission motions are to be lodged in the form of Appendix B

[6] [2010] VCAT 1807

[7] [2010] VCAT 1807 at [25]

[8] [2008] VSCA 217

[9] [2008] VSCA 217 at [370] (per Ashley and Redlich JJA)

[10] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 614-617 (Dixon J)

[11] Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 157 (Gaudron J); Saap v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162, 211 (Hayne J)

[12] Section 29(1) Planning and Environment Act 1987

[13] R v Ng [2002] VSCA 108 at [50] - [52]

[14] Section 60(1A)(h) of the Planning and Environment Act 1987 provides:

60 What matters must a responsible authority consider?

(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -

(h) any amendment to the planning scheme which has been adopted by a planning authority but not, as at the date on which the application is considered, approved by the Minister or a planning authority; and

Section 84B(2)(a) of the Planning and Environment Act 1987 provides:

(2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -

(g) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority;

[15] Re Target Australia Pty Ltd and CEO Customs [2013] AATA 176 at [84]

[16] Ex parte Renouf [1924] NSWStRp 47; (1924) 24 SR (NSW) 463

[17] Ex parte Renouf [1924] NSWStRp 47; (1924) 24 SR (NSW) 463; Shanaghan v Strathfield Municipal Council [1993] 2 NSW LR 740

[18] [1997] FCA 1313; (1997) 150 ALR 76 at 84 - 85;

[19] [1992] FCA 414; (1992) 28 ALD 480

[20] Section 60(1A)(h) and Section 84(B)(2)(g) of the Planning and Environment Act 1987