LEGISLATION - interpretation or application of statutory provision

• Interpretation of section 6(3)(d) Planning and Environment Act 1987 - use protected not development .

If the erection of a building and the carrying out of associated works was lawfully being carried out for the purpose of a dwelling before the coming into operation of an amendment, which now requires a permit for the development, the right to continue to use the land for that purpose does not also include a right to complete the construction of the dwelling on the land. Mrocki v Port Phillip CC (No. 1) [2007] VCAT 1719 followed.

• Interpretation of section 28(2)(e) Interpretation of Legislation Act 1984 - there is no accrued right to complete construction of an as-of-right development if the planning scheme changes before construction is complete. Mrocki v Port Phillip CC (No 2) [2008] VCAT 2304 followed.

This case decides that a dwelling, which commenced construction at a time when no planning permit was required, now requires a planning permit to complete construction following a planning scheme amendment that now makes a permit necessary.

The respondent relied on two statutory provisions to argue that a permit was not required to complete construction:

• section 6(3)(d) of the Planning and Environment Act 1987, which raised the issue of whether protection of an existing right includes protection of development that was being lawfully erected immediately before the coming into operation of the planning scheme amendment; and
• section 28(2)(e) Interpretation of Legislation Act 1984, which raised the issue of whether there was a right accrued under the planning scheme to complete construction.

Two recent cases decided by the Tribunal - Mrocki v Port Phillip CC (No. 1) [2007] VCAT 1719 and Mrocki v Port Phillip CC (No 2) [2008] VCAT 2304 - are followed. Other cases, upon which the Mrocki decisions are based, are examined in detail. Earlier AAT decisions of Lucas v Shire of Flinders and Lewitan v City of Prahran cannot be relied upon to reach the contrary conclusion.

The Victorian legislation is contrasted with the Tasmanian Land Use Planning and Approvals Act 1993. This is very similar to section 6(3)(a) - (e) of the Planning and Environment Act 1987 but includes an additional sub-section that is not included in the Planning and Environment Act 1987 dealing with a development, which was lawfully commenced but not completed before the coming into operation of the scheme.

The disparity between rights under a permit and the opportunity to undertake use or development without a permit is also discussed. The conclusion that a right accrues if a permit is granted under a planning scheme, but no right accrues if a person takes advantage of an opportunity to undertake a use or development that does not require a permit, creates a potential disadvantage for so-called 'as-of-right' use and development. The introduction of Part 4A - Certificates of Compliance into the Act in 1993 was an attempt to address this disparity.

Section 149B Planning and Environment Act 1987 - Nature of rights created under section 6(3)(d) Planning and Environment Act 1987 - existing use rights apply to use not development - section 28(20(e) Interpretation of Legislation Act 1984 - nature of accrued right

Glenelg SC v Printz Pty Ltd (includes Summary) (Red Dot) [2009] VCAT 2477

1. Pursuant to section 149B of the Planning and Environment Act 1987, I declare as follows:

Any further construction of a building or carrying out of works at CA18 Section 3A Township of Narrawong, Parish of Narrawong, requires a permit pursuant to the requirements of the Environment Significance Overlay - Schedule 4 of the Glenelg Planning Scheme.

1. This case requires me to decide whether a dwelling, which commenced construction at a time when no planning permit was required, now requires a planning permit to complete construction following a planning scheme amendment that now makes a permit necessary.
2. The council seeks a declaration under either section 149A or section 149B of the Planning and Environment Act 1987 as follows:

Any further construction of a building or carrying out of works at CA18 Section 3A Township of Narrawong, Parish of Narrawong, requires a permit pursuant to the requirements of the Environment Significance Overlay - Schedule 4 of the Glenelg Planning Scheme.

1. I have decided it is appropriate to make the declaration, which means that a planning permit will be needed in order to complete construction of the dwelling.

1. The subject land is 1.037 hectares in area and is located on the south-west corner of the Esplanade and East Street at Narrawong. The township of Narrawong is located on the coast north east of Portland within the Glenelg Shire. It is one of 18 crown allotments between East Street and the Surrey River. They immediately abut the coast[1] and include the coastal dune and estuarine wetlands.
2. The land is within the Township Zone where no planning permit is required for the use or development of a dwelling provided certain effluent treatment facilities, potable water and electricity can be connected to the site.[2] This was the only planning control affecting the land on 27 February 2009 when a building permit[3] was issued for construction of a dwelling and attached garage.
3. It is common ground that construction of the new dwelling commenced in early March 2009. The site of the dwelling is very close (0.658m) to the land's southern boundary, which abuts the coastal reserve, and is located on the primary dune.
4. On 13 March 2009, Amendment C45 to the Glenelg Planning Scheme was gazetted. This included the subject land and the other coastal crown allotments (referred to above) in an Environment Significance Overlay (ESO4). Amendment C45 was a ministerial amendment triggered by the issue of a building approval for the subject land. Pursuant to the provisions of the ESO4, a planning permit is required to construct a building, including a dwelling[4].
5. From 13 March to 25 March 2009, Printz continued to carry out further works related to the construction of the new dwelling until work was halted by agreement between Printz and the council pending resolution of this application. Those works included the part erection of the garage and timber framing for the ground floor of the dwelling.

1. The key issue is whether or not the introduction of ESO4 on 13 March 2009 had the effect of requiring a planning permit for continuation of construction of the dwelling on the land.
2. The more specific questions that I must consider include:
   1. If the erection of the building and the carrying out of associated works was lawfully being carried out for the purpose of a dwelling before the coming into operation of Amendment C45, does the right to continue to use the land for that purpose also include a right to complete the construction of the dwelling on the land (section 6(3)(d) of the Planning and Environment Act 1987?
   2. Alternatively, in these circumstances, does the respondent have the benefit of some accrued right to complete the construction of the dwelling on the land (section 28(2)(e) of the Interpretation of Legislation Act 1984)?
3. In the event that the answer to each of these questions is "no", the council contends that I should make the declaration.
4. There is a further issue regarding the alleged removal of native vegetation on the site in association with the construction of the dwelling and whether it required a permit. However, the parties have agreed that I should deal with the declaration application without determining whether native vegetation was removed in association with the construction of the dwelling; whether any planning permit was required for any native vegetation removal; and what consequences these matters have for whether the construction of the dwelling on the land was lawfully commenced. I have therefore not considered any issues associated with the alleged vegetation removal.

1. Section 6(3) of the Planning and Environment Act 1987 protects existing use rights. So far as relevant in the present case[5], it provides as follows:
   1. What can a planning scheme provide for?

(3) Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation;

1. The definition of "use" in the Act[6] is:

Use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed;

Land may be used or developed only in accordance with this scheme.

Land must not be developed unless the land as developed can be used in accordance with this scheme.

If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.

1. It follows that the right to develop is contingent in part upon the right to use land, but may also be subject to controls independent of use, as is the case with respect to the overlay now affecting the subject land.[7]

1. The council's primary contention is that assuming the erection of the building and the carrying out of any works associated with the erection of the building was carried out lawfully prior to 13 March 2009, the preservation of rights pursuant to section 6(3)(d) of the Planning and Environment Act 1987 extends only to the preservation of the right to use the land for the relevant purpose. Section 6(3) preserves existing use rights. It does not by some association preserve development rights associated with such use. Given the clear distinction in the Act between "use" and "development", the protection pursuant to section 6(3)(d) is restricted to the continuation of the prior lawful use only. Accordingly, the only benefit the respondent can take from the lawful construction of the dwelling prior to 13 March 2009 is the ability to continue to use the land for the purpose of a dwelling. Amendment C45 does not affect the ability to use the land for the purpose of a dwelling: ESO4 simply regulates the scope of development which may be permitted on the land.

1. The respondent contends that in the case of partially constructed buildings, section 6(3)(d) operates to protect the use by allowing completion of the development to achieve the intended use. By contrast with the other sub-paragraphs in section 6(3), sub-paragraph (d) relates not to the purpose for which land, buildings and works were lawfully used but to the purpose for which buildings and works were being lawfully erected or carried out. In other words, the existing use right is based on lawful development, not lawful use. It was submitted that this reinforces the interrelationship between development and use in the case of buildings and works which are in the process of construction. It manifests an intention that a building is entitled to be used for the purpose for which it is being erected, even if it cannot physically be used until development is complete.
2. The definition of 'use' in the Act includes "use or proposed use for the purpose for which the land has been or is being or may be developed". Based on the definition of 'use', the purpose for which land is proposed to be used as a consequence of development is deemed to have commenced even though the actual use might not physically commence until the development is completed.
3. While development is usually treated as a concept independent of use, in the case of a building being erected the development is fundamentally intertwined with or inherent in the use. Where the works are lawfully commenced prior to the change of planning controls, protection of the existing use rights embodies an implicit right to complete such works in order to realise and hence protect the existing use rights. To enable the use of the partially constructed building for the purpose for which it was being lawfully erected, the construction must be completed. Otherwise, the existing use right is rendered meaningless.

1. In Popular Pastimes Pty Ltd v Melbourne City Council[8] the Court of Appeal was concerned with the interpretation of the Prostitution Control Act 1994 and whether section 74, which provided that the responsible authority must refuse to grant a permit for a use or development of land for the purposes of the operation of a brothel in certain circumstances, applied to prohibit the grant of a permit to extend an existing brothel. The Court held that it did. In so doing, it considered the operation of section 6(3) of the Planning and Environment Act 1987. Osborn AJA commented:

[25] It may be observed the existing use rights created by s.6(3) are formulated by reference to the existing state of development of the land, whether vacant, or the subject of buildings or works either complete or under construction.

1. Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council[9] was a Supreme Court appeal from a Tribunal decision[10] regarding existing use rights and whether they extend to a right to develop. The case concerned land upon which there were 6 existing single storey dwellings. A Design and Development Overlay prohibited the construction of more than one dwelling on a lot. There was a proposal to demolish the existing dwellings and replace them with 6 double storey dwellings. The question was whether the applicant's existing use rights extended to a right to redevelop the land as proposed and override the prohibition in the Design and Development Overlay. The Tribunal held that the existing use rights referred to in section 6(3) of the Act and in clause 63 of the planning scheme do not extend to the development of 6 new buildings on the site. There was no inconsistency between the prohibition in the schedule to the Design and Development Overlay and section 6(3) of the Act and clause 63 of the scheme. The prohibition in the schedule to the Design and Development Overlay prohibited the construction of the 6 new dwellings.
2. Justice Balmford upheld the Tribunal's decision. She held that there is a clear distinction between 'use' and 'development'. In referring to the number of authorities which the applicant had relied upon, she noted that those authorities must be read in the light of the provisions of the particular statute, planning scheme or other enactment which may be operative in a particular case, and that many of them were concerned with the application of provisions significantly different from those with which she was concerned.[11] In reaching her conclusion, Justice Balmford said:

[24] The conclusion which I have reached as to the distinction between "use" and "development" and the effect of that distinction in the present case is consistent with the finding of the High Court (Menzies, Gibbs and Mason JJ), on an appeal from a decision of Gowans J of this Court, in Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 34 LGRA 151, although the Court there was not concerned with the provisions with which I am here concerned, but with the provisions of the Town and Country Planning Act 1961 ("the T&CP Act"), a forerunner of the Act.

[25] The appellant in that case owned land which was being subdivided for sale, in accordance with an appropriate permit. An interim development order came into force prohibiting the use or development of the land, save in accordance with the provisions of the order. Section 17 (1D) of the T&CP Act was in similar terms to section 6(3), providing that nothing in the order "shall prevent the continuance of the use of any land for the purposes for which it was being lawfully used immediately before the coming into operation of the order . . ." The definition of "use" in the T&CP Act was identical with the definition now appearing in the Act and cited in paragraph 17 above. The definition of "development" included "subdivision", as does the present definition. The High Court said at 152:

The appellant's case in essence is that the expression "use of any land" in s 17(1D) comprehends development of land including subdivision and ultimately sale. However, reference to other provisions in the Act makes it clear that the word "use" in the subsection does not extend to development or subdivision, let alone sale. The provision, it will be noted, permits continuance of the use of land but makes no reference to development or subdivision. The omission is significant for in other parts of the section, notably sub-ss. (1), (1B) and (1C), the word "use" appears in association with the word "development" in the expression "use or development".

And at 153, after referring to the definitions of "use" and "development" in the T&CP Act:

When these definitions are read together it is apparent that development and subdivision do not as such fall within the statutory definition of "use"; what the statutory definition does is to include use for the purpose for which the land is being developed or subdivided, e.g. use for residential purposes. The definition suggests, in conformity with what has already been said, that neither development nor subdivision by itself constitutes a "use" in the sense in which that word is used in s.17(1D).

[26] Given the considerable similarity in the relevant provisions, and reading "construction" for "subdivision", those passages are directly applicable to the matter before me.

1. Justice Balmford held that what was proposed was a development that was not protected by the existing use provisions of section 6(3).
2. In Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council the facts fell within the ambit of section 6(3)(b) of the Act. There was an existing development and there was a proposed new development. It was not a case where there was a development in the course of construction, unlike the situation
3. in Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works[12]. This was a High Court case concerning the interpretation of section 17(1D) of the Town and Country Planning Act 1961, which was for all relevant purposes in identical terms to section 6(3) of the Planning and Environment Act 1987.
4. The facts in Nancy Shetland are very similar to those in the present case. Land was in the process of development when a new planning control came into operation prohibiting use or development of any land after the coming into operation of the interim development order. The Court held that sub-section (1D) was limited to "use", thereby exposing "development" to the force of a prohibition contained in the interim development order. What was protected was the future use for the purpose for which the land was being developed or subdivided (eg for residential purposes) rather than the actual development or subdivision itself.[13]
5. More recently, the interpretation of section 6(3) of the Planning and Environment Act 1987 has been considered in Mrocki v Port Phillip CC (No. 1)[14]. In Mrocki (No. 1), the applicants purchased land containing a single dilapidated dwelling with the intention of demolishing it. At the time the land was in a Residential 1 Zone with a Special Building Overlay. No planning permit was required for demolition under this zone or overlay. A building permit was issued for demolition. Several internal fittings and fixtures were removed, and iron lacework from the verandah was also removed. The more significant demolition of the main building structure was due to commence on 26 July 2007. The day before, on 25 July 2007, the land was included in a Heritage Overlay by a site specific ministerial Amendment C66. Under the Heritage Overlay, a planning permit for demolition is required.
6. The applicant sought a declaration that demolition of the dwelling could continue without the necessity of first obtaining a planning permit for demolition.
7. Deputy President Dwyer found that the removal of the external iron lacework constituted the first step of demolition, such that demolition had essentially commenced before the planning scheme was amended. However, as he said, nothing really turned on this finding:

The legal principle that is ultimately determinative in this case does not depend on whether demolition had physically commenced on the land before Amendment C66 commenced operation.

1. The issue in Mrocki (No 1) was whether the land had an existing use right for a 'residential' purpose and that, as a matter of law, this existing use right encompassed demolition of the dwelling as part of the protected use. In other words, was the ability to demolish the dwelling without a planning permit protected by section 6(3) of the Act, such that Amendment C66 could not and did not alter that position?
2. Deputy President Dwyer found that the land had existing use rights for a broad 'residential' purpose, but they did not encompass demolition.[15] He relied on Nancy Shetland and Sorrento Apartments to conclude that:

[23] There is nothing in s 6(3) of the Act that prevents a planning scheme or amendment from introducing a development control over land that enjoys existing use rights. Height, design, heritage, neighbourhood character, and many other development controls commonly operate in this way without interfering with the purpose for which the land is used. The introduction through Amendment C66 of the requirement for a planning permit for the demolition of dwelling on the land cannot be said in any way to interfere with the purpose for which the land is used, or is intended to be used - ie for residential purposes. The control introduced by Amendment C66 operates only as a potential fetter on "development" in the course of the enjoyment of the existing use rights, in the same way as the building and works controls regulate future development of the land under the Residential 1 Zone and Special Building Overlay already applying to the land.

[24] Existing use rights are simply as the name suggests - rights which protect "use". They are not existing "development" rights, and no such protection over the introduction of development controls arises under s 6(3) of the Act. For the applicants, the consequence of Amendment C66 is that the continuation of demolition of the dwelling on the land is now subject to a planning permit requirement.

1. By contrast, two earlier decisions of the Administrative Appeals Tribunal in Lucas v Shire of Flinders[16] and Lewitan v City of Prahran[17] have held that section 6(3)(d) contains the necessary implication that a building being lawfully erected on the commencement date can legally be completed for the purpose of enabling the protected use to be carried on in it.
2. In Lucas v Shire of Flinders, Senior Member Byard considered an enforcement order application in relation to the construction of extensions to an existing dwelling. No planning permission was required for the construction of the extensions at the time the works commenced, although a building permit was required and obtained. Prior to completion of the extensions, the planning scheme was amended to introduce a height limit with which the extensions did not comply. The issue was whether having lawfully commenced the project, the landowner was entitled to carry on and complete it, even if later changes occurred to the planning controls. Referring to section 6(3) of the Planning and Environment Act 1987, the Tribunal said:

In turning to these provisions it is necessary to bear in mind that they deal with the preservation of the right to use land. The question of use is not in issue in this case. The use is, and at all material times has been a matter of right. The thing complained of by the Applicants does not concern the use the Respondents are making of their land, it is directed at the development constituted by the upper extension to the house.

[Section 6(3)(d)] in its terms protects the use, not a development, or the right to complete a development. However, it appears futile and absurd to protect the right to use the building if there is not also a right to complete it. If the building is partially complete at the date, but has only half its walls and no roof, then the use right is useless. A house to be used for residential purposes needs to have all its walls and roof. For this reason I find that Section 6( 3)( d) contains a necessary implication that a building being lawfully erected on the commencement date can legally be completed for the purpose of enabling the protected use to be carried on in it.

I find that the building in this case was being lawfully erected on the relevant date (whenever that date was), and that its completion after that date is protected.

1. In Lucas, the Tribunal acknowledged the separate operation of the building and planning legislation but observed:

The building approval obtained in this case is nevertheless relevant because it defines the extent of the extensions project that was lawfully commenced in August 1986.

1. In Lewitan v City of Prahran, the Tribunal, which comprised Judge Smith (President) and Deputy President Webb, dealt with an application for declaration that alterations to a dwelling which were legally commenced were allowed to be completed without the need for a planning permit on the basis that such works and their subsequent use were protected by section 6(3) and its predecessor. In its reasons for making the declaration, the Tribunal said:

Although it is not disputed that aside from the "continuing user rights" provided for in S.6(3) of the Planning and Environment Act 1987, planning permission would be required for the works because of the introduction of Amendment No 480 to the Planning Scheme, it has been consistently the contention of the applicant that the requirements introduced into the Planning Scheme by Amendment No 480 did not apply to him by reason of the fact that at the time of the coming into operation of Amendment 480 he had both (a) entered into a contract for the carrying out of works, and (b) the works were in progress. The works were suspended by the applicant at a later point of time after he was made aware of the City of Prahran's contention, based on legal advice it had received, that the applicant would have to apply for a planning permit and that he may face a prosecution if he proceeded with the works without one.

The difficulty which we have with the application of s 6(3)(d) to the facts of this case is that the sub-section is talking about "the use of the any [sic] building or work or any purpose for which it was being lawfully erected or carried out immediately before ... the coming into operation of the Amendment. Although the owners will want to use the building when it is completed, the immediate need is to be able to complete the works, i.e. is to complete the development of them so that the building can be used in its completed form as a detached house. Being allowed to use the partially completed works is not much good to the applicant unless he is allowed to complete the works.

1. The Tribunal then referred to the recent decision in Lucas, quoting the passage extracted above, and said:

For our part, we would endorse those remarks and apply the same reasoning to the facts of this case.

1. Neither Lucas or Lewitan refer to Nancy Shetland or any other authority.

1. The facts in this case are on all fours with the facts in Nancy Shetland and Mrocki (No. 1). Development for a dwelling has been commenced, which a new control now requires a permit for. When the development commenced, the land acquired existing use rights for the purpose of residential use. A new planning control could not prohibit or restrict those existing use rights for the purpose of residential use because of section 6(3)(d) of the Act. However, ESO4 does not purport to affect the way in which the land can be used. The planning scheme now simply requires a permit for development. In a situation where no planning permit for development exists, any further development of the land subsequent to gazettal of Amendment C45 requires a permit. This is notwithstanding that the building is partially constructed. In my view, the cases of Nancy Shetland, Sorrento Apartments and Mrocki (No 1) put this proposition beyond doubt.
2. The cases of Lucas and Lewitan cannot be relied upon to reach the contrary conclusion. They do not refer to the High Court decision in Nancy Shetland. The decisions of the High Court in Nancy Shetland and the Supreme Court in Sorrento Apartments are higher authority than decisions of the Tribunal in Lucas or Lewitan. Decisions of the High Court and Supreme Court are binding on the Tribunal.[18]
3. If it was intended to protect a right to complete development for the purpose of a use where a building or work was being lawfully erected or carried out immediately before a planning scheme came into operation, different words would be required to those which appear in section 6(3) of the Act.
4. An example of where such different words have been used is to be found in the Tasmanian Land Use Planning and Approvals Act 1993. Section 20(3) sub-sections (a) - (e) are very similar to the provisions of section 6(3)(a) - (e) of the Planning and Environment Act 1987. However, there is an additional sub-section (f) in the Tasmanian legislation that is not included in the Planning and Environment Act 1987. It provides as follows:
   1. What can a planning scheme provide for?

(3) Subject to subsections (4), (5) and (6), nothing in any planning scheme is to -

(f) prevent a development, which was lawfully commenced but not completed before the coming into operation of the scheme, from being completed within -

(ii) any lesser or greater period specified in respect of the completion of that development under the terms of a permit granted before the coming into operation of the scheme.

1. In Calvary Health Care Tasmania Inc v Hobart CC[19], the Full Court of the Supreme Court of Tasmania said with respect to the interpretation of section 20(3):

[20] ... Paragraph (d) [which is identical to section 6(3)(d) Planning and Environment Act 1987] protects the use of any building or works for any purpose for which the building was being lawfully erected or for which the works were being lawfully carried out immediately before that coming into operation. Section 20(3) also makes it clear that developments (which by s3(1) include a building and works) have no protection from the application of a planning scheme that relates to them except, as provided by para(f), developments lawfully commenced but not completed before the coming into operation of the planning scheme, provided they are completed within a limited period of time.

[21] With those exceptions [as set out in section 20(3)], the use of land, whether it consists of bare land or has a building or works upon it, is provided with no relevant protection from the application of a planning scheme that relates to it.

1. In my view, the findings in Calvary Health Care Tasmania Inc, in circumstances where there is specific legislation which deals with the protection of development rights, supports a finding that in the absence of such a specific provision there is no necessary implication inherent in section 6(3)(d) of the Planning and Environment Act 1987 to allow completion of the development of the dwelling on the subject land to enable use of the land for residential purposes. Rather, the case reinforces my conclusion that a permit is required to complete the development or for any other development.[20]
2. The council has not suggested that the ability to use the land for the purpose of a dwelling is affected by Amendment C45. A question that may need to be determined at some stage is whether the council could refuse to issue a permit to complete the development either in the particular location and to the particular design currently proposed or to construct the dwelling in some other location on the land and/or to some other design. However, I do not need to deal with this issue for the purpose of this case.
3. In conclusion, I find in response to the first question regarding existing use rights that if the erection of the building and the carrying out of associated works was lawfully being carried out for the purpose of a dwelling before the coming into operation of Amendment C45, the right to continue to use the land for that purpose does not include a right to complete the construction of the dwelling on the land. A permit for development under ES04 is now required to complete construction.

1. Section 28(2)(e) of the Interpretation of Legislation Act 1984 provides as follows:
   1. **Provisions as to effect of repeal etc. of subordinate instruments - **

(2) Where a subordinate instrument or a provision of 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 -

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;

1. Put in simple terms, the effect of section 28(2) in the present case is as follows:

Where a planning scheme is amended, the amendment shall not, unless the contrary intention expressly appears, affect any right accrued under that planning scheme.

1. The council contends that no accrued right or privilege within the meaning of these terms in section 28(2)(e) of the Interpretation of Legislation Act 1984 exists in favour of Printz. The ability to use land and carry out related activity is not, properly construed, a right or privilege for the purposes of section 28(2)(e). Even if it could be said that the carrying out of works to construct a dwelling prior to 13 March 2009 conferred some right on the respondent, the clear terms of section 6(3) of the Planning and Environment Act 1987 and the terms of ESO4 are such that any such rights did not survive the amendment. The scheme of the Act and the planning scheme is to preserve existing 'use' rights. That being so, any recognition of an 'accrued right' to develop land would be contrary to the scheme of the planning legislation and, therefore, in contravention of the contrary intention contemplated in section 28(2) of the Interpretation of Legislation Act 1984.

1. The respondent contends that Amendment C45 does not affect the accrued right to construct a single dwelling on the land. The respondent says there is an accrued right to complete construction of the dwelling in accordance with the building permit.

1. The most recent and directly relevant case is Mrocki v Port Phillip CC (No. 2)[21]. This decision is a 'companion piece' to the earlier decision in Mrocki (No. 1) referred to earlier and arises from the same set of facts. The issue in Mrocki (No. 2) was whether the issue of the building permit for demolition and/or the commencement of demolition had created an 'accrued right', which enabled demolition to continue without a planning permit, based on section 28(2)(d) and (e) of the Interpretation of Legislation Act 1984.
2. Deputy President Dwyer decided that section 28(2)(e) of the Interpretation of Legislation Act 1984 only protects any accrued right arising under the same subordinate instrument as that being amended - in this case the Port Phillip Planning Scheme. He found that although there was a right to demolish under the building permit, there was no 'accrued right' to demolish arising under the planning scheme. Specifically, he said:

[20] I agree with the applicants that, upon the issue of the building permit, the applicants had acquired something that could properly be described as a 'right' - that is, a right to demolish the dwelling under the Building Act 1993 and the Building Regulations, without fear of prosecution or enforcement under that Act and Regulations.

[21] However, I disagree with the applicant's assertion that, for the purposes of this 'right', there is no material difference between the building permit and a planning permit. There are many uses and developments of land where multiple and separate approvals need to be obtained under various pieces of legislation and regulations. The obtaining of an approval under one Act or Regulation does not necessarily obviate the need to obtain approval under the others, nor does the 'right' acquired through one approval create automatic rights under another.

1. Deputy President Dwyer held that the pre-existing exemption from the requirement to obtain a planning permit (i.e. the absence of any pre-existing planning control over demolition on the land) does not create a 'right' (including a contingent right) for planning purposes. It only creates an opportunity that could be taken advantage of for so long as the exemption existed. The removal of the exemption through the amendment did not therefore impair any accrued right, as no right previously existed. In reaching this conclusion, he discussed earlier authorities such as Robertson v City of Nunawading[22]. The fact that demolition had commenced in part, through the removal of the iron lacework, did not assist the applicants on this issue.
2. Section 28(2)(d) of the Interpretation of Legislation Act 1984 was held not to be relevant because it only protects something already 'duly done or suffered' before the commencement of the amendment. It therefore only protected the existing completed portion of the demolition, and did not protect the applicant from the operation of the new control now requiring a planning permit to continue or complete the demolition. The partial demolition already undertaken was simply a lawful act of demolition undertaken whilst the opportunity existed in the absence of a specific planning control over demolition.[23]
3. In Robertson v City of Nunawading[24], the Full Court of the Supreme Court distinguished between a right created by legislation and -

... a mere gap in the field covered by the legislation which left the person concerned free of statutory control in that area. There cannot, in any relevant sense, or perhaps in any sense, be a "right" to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purpose of the principle.

The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment: cf Abbot v Minister for Lands, [1895] AC 425 at 431). There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the applicant determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted.

If the conclusion is justified (as it appears to be) that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute.

1. The issue being considered in Robertson was whether an application for subdivision created a right to have the application considered in accordance with the legislation at the time of the application. The answer was no.
2. In Mathieson v Burton[25] Gibbs J of the High Court said:

That section [of the NSW equivalent of section 28(2)(e) of the Interpretation of Legislation Act 1984] in refereeing to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v Minister for Lands) and does not apply where there is merely a hope or expectation that a right will be created (Director of Public works v Ho Po Sang) but it does protect anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" (Free Lanka Insurance Co Ltd v Ranasinghe).

1. The principles established by the decided cases are consistent. The critical issue is whether a right has accrued. The law on this issue was appropriately summarised by Justice Morris in Simpson v Bass Coast Shire Council[26] where he said:

[20] In Abbott v Minister for Lands, it was pointed out that the repeal of any Act must affect rights in the general sense as the law will henceforth be different from what it was. For a right to be protected it must have been accrued; hence it is necessary to establish that the right that is claimed to be preserved is a real one and not one that is still in abstracto. Channell J expressed the matter this way in Starey v Graham, that a right acquired means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. (See also Boyce v Hughes). A mere hope or expectation that a right will be created is not preserved: Director of Public Works v Ho Po Sang and Ungar v City of Malvern. However in Free Lanka Insurance Co Ltd v Ranasinghe it was said that a section equivalent to section 28(2) would save a right, even though that right was inchoate or contingent. Further, the fact that a right may be qualified, limited or transitory in nature will not prevent its maintenance: see Mathieson v Burton.

1. The respondent argued that a right accrued to Printz when development commenced in reliance on the planning controls. This was not a procedural right, in terms of making an application for a permit. Nor was it a situation where there was a "field in which there was no legislative action" as referred to in Robertson. The provisions of the Township Zone reflected a considered and nuanced approach to the regulation of use and development of single dwellings, rather than a blanket exemption or vacating of the regulatory field. The commencement of construction was an act done by Printz to avail itself of the advantage created by the Township Zone, and this is properly regarded as an accrued right. It is a specific right acquired by the respondent, which it had and others did not.
2. I am not persuaded by these arguments for the reasons given by Deputy President Dwyer in Mrocki (No. 2). I consider the situation falls squarely within the principles stated in Robertson that "the taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right". I find that no right had been acquired under the planning scheme. Rather, the respondent took advantage of a gap in the field covered by the legislation (ie the planning scheme) that left the respondent free of statutory control in this area.
3. The Township Zone does not require a permit for development. This can be characterised as 'a gap in the field'. If a permit had been required under the Township Zone (or any other planning control) and one was obtained, then it might be said that a right accrued (see Brimbank CC v L S Planning Pty Ltd[27]). Then it could be said that Printz had something that other landowners did not have. But in the absence of such a control, and the grant of a permit, the opportunity to take advantage of this gap in the legislation was not a specific right which had been acquired by Printz and which other landowners in the Township Zone did not have as the opportunity was open to everyone.
4. Whilst it was suggested by Stephen J in Eaton and Sons Pty Ltd v Warringah Shire Council[28] that it was inappropriate to speak of a consent (or permit) under a planning scheme as conferring a "right" or "privilege" within the context of legislation similar to section 28(2) of the Interpretation of Legislation Act 1984, principally because it was said that it was not acquired by, or accrued, to an individual but is "a consent to the world at large in relation to the land which is its subject", there are other cases[29] that take a different view. Thus in Lakkis v City of Wyndham[30], Deputy President Macnamara observed:

[29] ... Permits create substantive rights. Changes to the substantive law are presumed not to operate retrospectively. See Maxwell v Murphy [1957] HCA 7; (1957) 96, CLR 261, 267 per Dixon CJ. Where a subordinate instrument such as a planning scheme expires, lapses or ceases to have effect, the expiry, lapsing or ceasing to have effect does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision (Section 28(2)(e) of the Interpretation of Legislation Act 1984). In my view these principles preserve the operation of [the permit under consideration in that case] ...

1. Further, Deputy President Macnamara said: "I find the rationale for the continuing operative nature of the permit [is] in its persistence as an accrued right."[31]
2. Similarly in Ungar v City of Malvern[32] the Full Court of the Supreme Court held that a landowner had not acquired a right or a privilege to have his application determined in accordance with the law as it existed at the time his appeal was instituted, and the Tribunal was required to give effect amendments to the planning scheme. The Court said:

In the present case the institution of the appeal by the appellant gave him no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. [Tribunal emphasis]

1. In Castellano v City of Port Melbourne[33], Beech J also referred to "the right acquired by the applicant as a consequence of the issue of the permit".
2. Based on these views expressed by the Supreme Court and the Tribunal, I therefore find that a permit granted under a planning scheme is a right accrued under the planning scheme within the meaning of section 28(2) of the Interpretation of Legislation Act 1984 and that this view is to be preferred to that expressed in Eaton.

Disparity between rights under a permit and the opportunity to undertake use or development without a permit

1. The conclusion that a right accrues if a permit is granted under a planning scheme, but no right accrues if a person takes advantage of an opportunity to undertake a use or development that does not require a permit, creates a potential disadvantage for so-called 'as-of-right' use and development.
2. In general terms, planning schemes create three categories of use and development - use and development that is permitted as-of-right and does not need a planning permit; use and development that requires a permit; and use and development that is prohibited. On the one hand, it might be thought that planning controls which permit use and development as-of-right would be more advantageous to a landowner than those which require a permit. My analysis of the law relating to as-of-right use and development, which is exemplified by my findings in this case and in the decisions in Mrocki (No. 1) and Mrocki (No. 2), demonstrates that this is not the case.
3. Subject to the protection offered to uses section 6(3) of the Planning and Environment Act 1987, a right to use or develop land without a permit can be removed at any time by an amendment to a planning scheme. Whilst a use that has commenced will be protected by section 6(3) of the Act, a development that has commenced but not been completed will not be protected and a permit will be required to complete it. This contrasts with a use or development for which a permit is required and where one has been granted, which will be unaffected by an amendment to a planning scheme either as to commencement or completion.[34]
4. To overcome the uncertainties and lack of security for as-of-right use and development, (development in particular), Part 4A - Certificates of Compliance was introduced into the Act in 1993.[35] Section 97N(1) provides as follows:

(1) Any person may apply to the responsible authority for -

(a) a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate; or

(b) a certificate stating that a proposed use or development (or part of a use or development) of land would comply with the requirements of the planning scheme at the date of the certificate.

1. Section 97N(1)(b) relates specifically to an as-of-right use or development under a planning scheme.[36]
2. The Planning and Environment (Amendment) Act 1993 also introduced sub-section (ke) into section 6(2) of the Act, which sets out what a planning scheme can provide for. It provides that a planning scheme may -

(ke) subject to subsection (3), specify what effect (if any) the planning scheme will have on a use or development of land for which a permit or certificate of compliance has been issued;

1. It is instructive to consider the second reading speech regarding these provisions[37].

One of the uncertainties under the Act is that if under a planning scheme a use or development does not require a permit, an applicant must proceed on the basis of his or her interpretation of the relevant provisions of the scheme. If detailed conditions are set in the scheme this can be a complex matter. Also if the scheme changes before the use or development commences, additional requirements may need to be met.

Currently there is no provision for a statement to be made that a proposed use or development meets the requirements of a scheme and does not need a permit. As I intend to ensure that schemes provide for more permitted development subject to conditions it is likely that there will be a greater demand to have a statement to this effect.

Clause 23 [Part 4A] allows a certificate of compliance to be granted not only for proposed use or development but also for existing use or development. The certainty of a certificate will often be attractive to a person proposing a type of use or development which complies with the scheme. It will also be attractive to that person's financiers.

Clause 4 [section 6(2)(ke)] makes it possible to provide additional security to a proposed use or development because the scheme can specify what effect, if any, amendments to the scheme have on the use or development before it is commenced or completed. I intend to prepare a Statewide amendment to schemes to specify that additional requirements which may be introduced into the scheme do not have to be complied with if the use or development commences within two years of the date of the certificate.

Clause 4 [section 6(2)(ke)] also allows a scheme to clarify the related issue of what effect, if any, changes to a scheme have on the validity of a permit for a use or development which has not been commenced or completed. It is commonly believed that a permit can generally be used, even if the scheme is changed to prohibit the use or development or to introduce new requirements, such as additional car parking. However, there is no provision in the Act to that clear effect. I propose an amendment to schemes to make a general Statewide provision along the lines of what is commonly believed.

A certificate about existing use or development will add certainty to prospective owners and occupiers of land in cases in which there may be doubts about compliance. It should not normally be needed n straightforward cases such as buying a standard detached house in a standard residential zone.

1. It is evident that the combined effect of these provisions was intended to provide a mechanism that could be used to provide security for an as-of-right development, which might be commenced but not completed, in the event of an amendment that introduced additional requirements affecting the development.
2. Whilst there is no certificate of compliance in the present case, it is arguable that if one had been issued before Amendment C45, it would constitute a right accrued within the meaning of section 28(2) of the Interpretation of Legislation Act 1994 in similar fashion to a planning permit.
3. To my knowledge, no amendment to planning schemes (as foreshadowed in the second reading speech) was ever introduced to specify that additional requirements which may be introduced into the scheme do not have to be complied with if the use or development commences within two years of the date of the certificate of compliance. There is no such provision in the current planning scheme. Such a provision would have been akin to section 20(3)(f) of the Tasmanian Land Use Planning and Approvals Act 1993 discussed earlier.
4. The second reading speech is instructive in terms of setting out the understanding which existed at the time that if a scheme changes before an as-of-right use or development commences or is completed (in the case of development) additional requirements need to be met. This accords with the conclusions that I have reached in this case on both the issues of existing use right and accrued right.

1. In respect of the specific questions I was asked to consider, I have concluded as follows:
   1. If the erection of the building and the carrying out of associated works was lawfully being carried out for the purpose of a dwelling before the coming into operation of Amendment C65, the right to continue to use the land for that purpose does not also include a right to complete the construction of the dwelling on the land.
   2. The respondent does not have the benefit some accrued right to complete the construction of the dwelling on the land within the meaning of section 28(2)(e) of the Interpretation of Legislation Act 1994.
2. According, I consider it is appropriate to make the declaration that the council seeks.

[1] The coastal reserve is included in a Public Park and Recreation Zone

[2] Clause 32.05-2 Glenelg Planning Scheme

[4] Clause 42.01-2 Glenelg Planning Scheme

[5] Sub-sections (4) and (4A) are not relevant

[6] Section 3 of the Planning and Environment Act 1987

[7] Popular Pastimes v Melbourne City Council [2007] VSCA 188 at [19]

[8] [2007] VSCA 188

[9] [2001] VSC 302

[10] Sorrento Apartments v Mornington Peninsula SC [2001] VCAT 367

[11] [2001] VSC 302 at [20]

[12] (1974) 34 LGRA 151

[13] (1974) 34 LGRA 151 at 153

[14] [2007] VCAT 1719. There is a later 'companion piece', Mrocki v Port Phillip CC (No 2) [2008] VCAT 2304, which I will refer to later in the context of accrued rights.

[15] Demolition is "is included in the definition of "development" in section 3 of the Planning and Environment Act 1987.

[18] The weight to be placed on the Tribunal's decision in Lucas is also diminished by the concession by counsel for the respondent/landowner in that case that "there was no argument that it was lawful to complete a building lawfully started."

[19] [2006] TASSC 10

[20] I was also referred to the case of Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 54 LGRA 99. This is another example where the wording of the legislation was different and referred to the carrying out or completion of a development.

[21] [2008] VCAT 2304

[22] [1973] VicRp 81; [1973] VR 819

[23] [2008] VCAT 2304 at [33]

[24] [1973] VicRp 81; [1973] VR 819 at 825-826

[25] (1970 - [1971] HCA 4; 1971) 124 CLR 1 at 23

[26] [2007] VCAT 165

[27] [2006] VCAT 2218

[28] [1972] HCA 33; 25 LGRA 369 at 387

[29] In addition to Brimbank CC v L S Planning Pty Ltd [2006] VCAT 2218

[30] [2001] VCAT 863

[31] [2001] VCAT 863 at [31]

[32] [1979] VicRp 25; [1979] VR 259 at 266

[33] (1983) 57 LGRA 231 at 240

[34] Section 68 of the Planning and Environment Act 1987 governs when such a permit will expire.

[35] Planning and Environment (Amendment) Act 1993

[36] Section 97O(5) provides that the responsible authority must refuse to issue a certificate applied for under section 97N(1)(b) if the use or development would require a permit or is prohibited under the planning scheme.

[37] Planning and Environment (Amendment) Bill 11 November 1993, Hansard page 1698 - 1699