1 The tribunal has jurisdiction to hear and determine application P3113/2004.

2 The application P1290/2005 is struck out.

3 The application for costs is refused.

(given orally at the hearing and subsequently revised)

1 In November 2004 the applicant for review applied to the tribunal for the review of the refusal of the responsible authority to approve a development plan in relation to land at Burnside Road, Bannockburn (Application P3113/2004). The land is contained within a Low Density Residential Zone. It is also subject to a Development Plan Overlay. In October 2004 the responsible authority had refused to approve plans submitted by the applicant as the development plan.

2 This application for review came on for hearing before Mr Cimino on 19 May 2005. The responsible authority opened the hearing by making the primary submission that the proceeding should be considered to be at an end and the hearing should not proceed. This submission was based upon the fact that subsequent to the decision to refuse to approve the development plan in October 2004 ("the first development plan"), the council had approved another development plan ("the second development plan") and that there was then in force an approved development plan.

3 As this submission involved a question of law, it was referred to me for consideration and determination.

4 To facilitate the present hearing, the parties prepared two questions of law for consideration. The principal question was:

Does the power to approve a development plan pursuant to clause 43.04 include the power to approve an entirely new development plan which supersedes an earlier plan approved to the satisfaction of the responsible authority?

Somewhat unhelpfully both parties answered this question "yes". However they used quite different legal routes to get to that answer. If the responsible authority's route is correct, it means that the tribunal does not have jurisdiction to review the decision to refuse to approve the first development plan. On the other hand, if the applicant's route is correct, it means that the tribunal does have such jurisdiction and that the hearing before Mr Cimino should resume on the date set of 17 June 2005.

5 In order to determine this question it is necessary to have regard to the provisions of the Development Plan Overlay. This overlay is designed to identify areas that require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop land. Clause 43.04-1 of the scheme provides, in part:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the Responsible Authority.

Although this provision does not in terms empower the responsible authority to make an instrument stating that it is satisfied with a development plan, in my opinion, it has this effect. The provisions of the Development Plan Overlay would not work unless one read these provisions as including a power, vested in the responsible authority, to state that it was or was not satisfied with particular documents as being a development plan.

6 The relevance of the responsible authority being satisfied that certain documents form a development plan is that clause 43.04-1 also provides that a permit granted must be generally in accordance with the development plan. Further an application under any provision of the scheme which is generally in accordance with the development plan is exempt from third party notice requirements.

7 Clause 43.04-3 provides that the development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages. Further it provides that the development plan must describe the land to which the plan applies, the proposed use and development of each part of the land and any other requirement specified for the plan in a schedule to the overlay. The relevant schedule in this case does specify an array of other matters that must be addressed in the development plan.

8 The thrust of the provisions forming the Development Plan Overlay mean that, for any particular land the subject of the overlay, there is only intended to be one plan in force at any point in time in relation to a matter which must be addressed by the development plan. Put another way, and adopting the words used by Mr Nelson, who appeared for the responsible authority, there cannot be two development plans for land that are inconsistent with each other.

9 Mr Nelson drew my attention to part of clause 43.04-3, which provides:

The development plan may be amended to the satisfaction of the Responsible Authority.

This was relied upon by Mr Nelson in support of his contention that, once a development plan had been approved, the appropriate method of substituting a fresh development plan was by the process of amendment, utilising this power. He contended that, this being so, the current application for review could not proceed because it was not an application for review in relation to an amendment to the development plan, but was an application for review in relation to the development plan itself.

10 Mr Finanzio, who appeared for the applicant, referred me to section 41A of the Interpretation of Legislation Act 1984. This provides relevantly:

If .... [a] 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 in exercise of that power.

The power contained within clause 43.04-1 of the scheme, whether express or implied, that a responsible authority may be satisfied with a development plan is a power to make an instrument. I say this because the exercise of the power to be satisfied with a development plan would almost always be exercised, and certainly can be exercised, by a written document, such as a stamp on a plan, or a letter, both of which would constitute an instrument.

11 The last words in clause 43.04-3, which specifically enable a development plan to be amended to the satisfaction of the responsible authority, do not indicate the contrary to the general provision contained in section 41A of the Interpretation of Legislation Act. Rather they are intended to clarify and explain the position. They are words designed to assist responsible authorities in the administration of the planning scheme rather than words intended to limit the broader powers articulated in section 41A of the Interpretation of Legislation Act.

12 It follows that if a council expresses its satisfaction with a development plan it can subsequently revoke, rescind, amend or alter that approval. It is likely that before doing so the responsible authority would have to provide an opportunity for affected stakeholders to be heard, but I need not pursue that matter further in this proceeding.

13 I now turn to the powers of the tribunal which are relevantly set out in section 149(1) of the Planning and Environment Act and in section 51 of the Victorian Civil and Administrative Tribunal Act. Section 149 allows the owner of land directly affected by the matter to apply to the tribunal for the review of "a decision" of a responsible authority in relation to "a matter" if a planning scheme specifies that the matter must be done to the satisfaction of the responsible authority. In this case the responsible authority has made a decision in relation to the question of whether it should be satisfied with the first development plan. It is that decision that the applicant for review seeks to have set aside and for which it seeks to have another decision made in lieu. Section 51 of the VCAT Act provides that in exercising its review jurisdiction in respect of a decision the tribunal has all the functions of the decision maker. It also provides that in determining a proceeding for review of a decision, the tribunal may by order affirm the decision under review, vary the decision under review or set aside the decision under review and make another decision in substitution for it.

14 Hence, the present matter is to be approached this way. Could a responsible authority, having given its approval or satisfaction in relation to a development plan, subsequently give its approval or satisfaction in relation to a subsequent development plan (being inconsistent with the approved plan), not by way of amending the approved plan, but by way of a fresh approval? If the answer is that it can, then it follows that the tribunal also has that power.

15 In my opinion there are sound reasons for concluding that a responsible authority can approve, or be satisfied with, a subsequent development plan in circumstances where a development plan has been approved or is to the responsible authority's satisfaction. The effect of such an approval (or expression of satisfaction) will be that the former plan, being superseded, will be effectively revoked or rescinded by the subsequent approval of the inconsistent development plan. This outcome is consistent with the power in clause 43.04, as enlarged by the Interpretation of Legislation Act. It is also a practical outcome, consistent with the underlying policy of the Development Plan Overlay.

16 Although it is true that the power to amend a plan is a broad one, in my opinion the scheme anticipates that a totally fresh development plan might be approved even though such a plan is, in truth, not an amendment but is a new plan. For example, the ownership of land may change and the new owner may have quite different ideas as to how land should be developed. Alternatively the composition of the responsible authority may change and the new responsible authority may have quite different ideas as to how land should be developed. I think that the provisions are designed to work flexibly to deal with diverse circumstances. This makes it appropriate to interpret the power so as to permit the approval of a fresh development plan in lieu of an existing development plan.

17 In the present case the applicant for review seeks to have the first development plan approved in place of the second development plan. As the tribunal has all the functions of the decision maker, I conclude that the tribunal does have jurisdiction to be satisfied with the first development plan and, as part of this process, may revoke the satisfaction of the council in relation to the second development plan.

18 It may be that another method of achieving this outcome would be to impose a condition on the approval of the first development plan. In this context, I note that the tribunal's power to impose a condition pursuant to section 130 of the VCAT Act is a broad power. However I prefer to interpret clause 43.04 of the scheme, together with the powers of the tribunal in section 149 of the Planning and Environment Act and section 51 of the VCAT Act, as enabling a subsequent development plan to be approved in lieu of an earlier development plan. This is a preferable approach as it does not depend upon a power available to this tribunal, but not available to a responsible authority at first instance. It also accords with what I regard as the preferable way of interpreting the development plan overlay so as to give it flexible operation.

19 In the light of my decision in relation to the first question of law and as to the route to be achieved to get the positive answer to it, it is strictly unnecessary to finally determine the question as to whether or not the second application for review can proceed. However, I do not believe that a reasonable time has elapsed since the council was asked to amend the development plan. Three days is hardly a reasonable time. As a consequence that application for review is premature and it should not proceed to a hearing on 17 June 2005.

20 I was asked by the applicant to make an order as to costs. I decline to do so as this case involved a difficult legal issue and the responsible authority has acted in good faith in taking the point it did. It is true it took it without notice before Mr Cimino, but as the point had only recently arose this is not of great moment. Costs incurred in resolving this dispute between a substantial subdivider and a responsible authority should be seen as part of the rub of the green.