Glenelg SC v Printz Pty Ltd

Glenelg SC v Printz Pty Ltd - [2009] VCAT 2477 - VCAT 2009 case summary — Zoe

[43]

Justice Balmford held that what was proposed was a development that was not protected by the existing use provisions of section 6(3).
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
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.
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]
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.
The applicant sought a declaration that demolition of the dwelling could continue without the necessity of first obtaining a planning permit for demolition.
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:

[60]

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.
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]
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.
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?

[88]

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.
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.
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.
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:

At a glance

Court

Decision date

Source

Judgment (142 paragraphs)

Glenelg SC v Printz Pty Ltd (includes Summary) (Red Dot) [2009] VCAT 2477 (19 November 2009)

Parties

Legislation Cited (2)