Whether reference to the Residential 1 Zone in DDO3 of the scheme is a reference to the General Residential Zone that, at the hearing of the Application, had replaced the Residential 1 Zone in respect of the subject land

LEGISLATION - interpretation or application of statutory provision

Interpretation of Legislation Act 1984 s 30

On 1 July 2014, the Residential 1 Zone was repealed from the Mornington Peninsula Planning Scheme and land in that zone at that date was included in a General Residential Zone.

The Design & Development Overlay Schedule 3 provides that buildings and works in a Residential 1 Zone must comply with or meet specified ResCode provisions.

The question of law raised in this proceeding is whether, in effect, those requirements continue to apply even though the subject land is no longer included in the Residential 1 Zone.

Having regard to the relevant provisions of the Interpretation of Legislation Act 1984, the Tribunal held that the reference to the repealed Residential 1 Zone in DDO3 must be construed as a reference to the re-made General Residential Zone.

Section 82 of the Planning & Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone; Design & Development Overlay Schedule 3; Dwelling; Application to amend permit; Effect of reference in DDO3 to repealed Residential 1 Zone; Question of law

Evans v Mornington Peninsula SC (Includes Summary) (Red Dot) [2014] VCAT 1178

1. On the questions of law raised in this proceeding, I decide as follows -

Question 1 - Should the reference to the Residential 1 Zone in Clause 2.0 of Schedule 3 to the Design and Development Overlay of the Mornington Peninsula Planning Scheme be construed as a reference to the General Residential Zone as introduced by Amendment VC116??

Answer - Yes

Question 2 - If no, do the specified Clause 54 requirements apply to this Application to amend a planning permit?

Answer - Unnecessary to answer

1. Mr Hills applied to the Mornington Peninsula Shire Council under section 72 of the Planning and Environment Act 1987 to amend permit no. P07/2735 (the permit) issued by the Council under the Mornington Peninsula Planning Scheme (the scheme) to develop a dwelling and remove vegetation on the subject land.
2. The Council decided to issue a notice of decision to amend the permit. Mr & Mrs Evans, who had objected to the Council against the amendment of the permit, applied to the Tribunal to review the Council's decision.
3. When the Council decided the application, the subject land was zoned Residential 1 (R1Z) under the scheme and was subject to a number of overlays, including Design & Development Overlay Schedule 3 (DDO3).
4. On 1 July 2014, the subject land was rezoned General Residential Zone (GRZ).

1. At the subsequent Tribunal hearing of the application on 4 August 2014, the Tribunal identified the following questions of law -

Question 1 - Should the reference to the Residential 1 Zone in Clause 2.0 of Schedule 3 to the Design and Development Overlay of the Mornington Peninsula Planning Scheme be construed as a reference to the General Residential Zone as introduced by Amendment VC116??

Question 2 - If no, do the specified Clause 54 requirements apply to this Application to amend a planning permit?

1. The Tribunal gave leave for the parties to make submissions on the question. Mr & Mrs Evans and the Council made submissions. No party requested to be heard on the question.

1. I have been nominated pursuant to clause 66(1)(b) of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, as the member who is a legal practitioner to determine the question of law set out above.

1. This amendment implemented the GRZ into the scheme because the Government's new residential zones had been not applied before 1 July 2014. The amendment deleted the R1Z (ie clause 32.01) from the scheme.[1]
2. In its submission, the Council stated that the GRZ is to be the default zone in the absence of strategic work that informs the application the new residential zones in a municipal district. I infer from the Council's submission that, after that work is done, the scheme will be further amended to rezone all or some of land in the GRZ to other new residential zones.

1. Clause 2.0 of DDO3, in part, relevantly provides -

An application to construct a building or construct or carry out works should meet the General requirements of this schedule except where it has been demonstrated to the satisfaction of the responsible authority, that compliance is unreasonable or unnecessary and no loss of amenity will result.

Note: The Mandatory requirements of this schedule also apply.

In the Residential 1 zone, an application to construct a building or construct or carry out works associated with one dwelling on a lot:

• Must comply with Clause 54.01.
• Must meet all of the objectives and should meet all of the standards of Clause 54.02, 54.03-3, 54.03-4, 54.03-5, 54.03-6, 54.03-7; 54.04-2; 54.04-3, 54.04-4, 54.04-5, 54.04-6, 54.05, 54.06-1.
• Must meet the objectives of Clauses 54.03-1, 54.03-2 and 54.04-1.

1. The only decision relevant to the question that the parties referred to in their submissions was Kleinert.[2] In that decision, the Tribunal briefly considered the effect of clause 2.0 of DDO1 of the scheme. Clause 2.0 of DDO1 is not in identical in terms to clause 2.0 of DDO3. The Tribunal proceeded on the basis that it appeared the clause did not apply. The reasons show that the matter was not argued and considered in detail.

1. The question of law can be readily determined having regard to the provisions of the Interpretation of Legislation Act 1984 (the IL Act).
2. The IL Act makes provisions relating to the interpretation of Acts of Parliament and subordinate instruments. The scheme is a subordinate instrument because it is an instrument made under an Act and, although it is not a statutory rule, it is of a legislative character.[3]
3. Section 30 of the IL Act makes provision for repeal and re-making of a subordinate instrument. It provides -
   1. Repeal and re-making

Where a subordinate instrument or a provision of a subordinate instrument is repealed and re-made (with or without modification) then, unless the contrary intention expressly appears -

(a) any reference in any subordinate instrument or Act to the repealed subordinate instrument or provision shall be construed as a reference to the re-made subordinate instrument or provision; and

(b) insofar as any subordinate instrument made or other thing done under the repealed subordinate instrument or provision, or having effect as if so made or done, could have been made or done under the re-made subordinate instrument or provision, it shall have effect as if made or done under the remade subordinate instrument or provision.

1. In applying section 30 of the IL Act, it helps to insert the expressions relevant to the circumstances in this proceeding, as follows -
   • The subordinate instrument is the scheme.
   • A provision of a subordinate instrument includes the R1Z.
   • The repealed provision of the subordinate instrument is the R1Z.
   • The re-made provision of the subordinate instrument is the GRZ.
   • Anything done under the repealed provision of the subordinate instrument includes the grant of the permit.
2. The proper effect of section 30(a) is that any reference to the R1Z in the scheme must be construed as a reference to the GRZ.
3. The proper effect of section 30(b) is that the permit must have effect as if were granted under the GRZ.
4. One exception applies and that is if 'the contrary intention expressly appears'. I have examined the amendment documents relating to VC116, including the explanatory report for the Amendment. There is nothing in those documents indicating that its drafters expressly (or even, impliedly) intended that section 30 of the IL Act would not apply.

1. Clause 2.0 of DDO3 in the scheme applies to the application as if the reference to the R1Z were a reference to the GRZ.
2. The Tribunal constituted to determine the application, comprising Member Sibonis, will now proceed to determine the application in accordance with the ruling in this order.

[1] Mornington Peninsula Planning Scheme, Amendment VC116, Explanatory Report.

[2] Kleinert v Mornington Peninsula SC (Correction) [2014] VCAT 820 (Baird SM, 8 July 2014).