Mr G Peake of Counsel instructed by Scally Legal and Property, solicitors, appeared for the Permit Applicant.

Ms Starkiewicz and Mr Huczek represented themselves.REASONS

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Mr W Huczek and Ms D Starkiewicz ("the Applicants") to review a decision by Yarra City Council ("the Council") to grant a permit in application no.981125.

2. The subject of the permit application is construction of a three-storey building at 7-11 Dover Street, Richmond ("the subject land"). The Applicants objected to the application for the permit, and following the issue of a notice of the Council's decision to grant a permit, exercised what was at that time their undoubted right to apply to this Tribunal for review the Council's decision.

3. The Applicants own a property which adjoins the subject land to the south. The property has a house on it, but the Applicants reside elsewhere. The Applicants' property has shared the same zoning as the subject land at all relevant times.

4. The Council chose not to take an active part in the argument of the jurisdictional point. Its representative, Ms Connell, was present, and was able to assist with some information regarding various provisions of the Planning Schemes. The fact situation as outlined by Mr Peake, and which we will summarise, was not challenged.

5. When the permit application was lodged, the subject land was zoned Light Industrial under the old Yarra Planning Scheme. Clause 116-3.2 applied:

"Except with a permit, no buildings or works may be constructed higher than 7 metres above ground level."

6. It was the Respondent's contention that no permit was required for the use. This was contested by the Applicants.

7. In both the previous and current Planning Schemes, an overlay related to the City Link development affected the subject land. It did not add any relevant control or permit requirement in either instance.

* On 9 November 1998, the Applicants lodged an objection to the permit application.

* On 1 March 1999, the Council issued a notice of decision to grant a permit to construct a 3 storey building for warehouses and offices.

* On 17 March 1999, the Applicants lodged an Application to Review the Council's decision.

* On 26 May 1999, the new Yarra Planning Scheme was gazetted.

9. The new scheme is a Victoria Planning Provisions format Planning Scheme. It was created under Section 18 of the Planning and Environment (Planning Schemes) Act 1996, in conformity with the "standard planning provisions" which were prepared and approved by the Minister for Planning under Part 1A of the Planning and Environment Act 1987.

10. Under Section 4A of the Planning and Environment Act, the purpose of these standard provisions is to assist in providing a consistent and co-ordinated framework for planning schemes in Victoria.

11. The subject land is within the Business 3 zone under the new Yarra Planning Scheme. The relevant zone controls are found in Clause 34.03 of the Planning Scheme.

12. In the Business 3 zone, no permit is required for use of land for the purposes of Office or Warehouse (subject to conditions which are not applicable in the present case). However, a Caretaker's house does require a permit. The Respondent indicated that it did not intend to proceed with an application for a Caretaker's house at this time.

13. Under Clause 34.03-4, a permit is required for construction of building and works. Application requirements and decision guidelines for applications are also set out in Clause 34.03-4.

14. This new clause applies to the entire building, unlike the limited requirement for a permit only for construction over 7 metres in height under the former Planning Scheme.

15. In addition, Clause 34.03-4 contains exemptions. These are:

"An application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the appeal rights of Section 82(1) of the Act. This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school."

16. The effect of this Clause was the subject of a separate hearing on a preliminary point of law. On behalf of the Respondent, Mr Peake argued that the commencement of the Planning Scheme containing the exemptions had deprived the Tribunal of jurisdiction to hear this Application to Review. The Tribunal was reconstituted by the addition of a member who is a legal practitioner (Mrs Bruce) in order to determine this question, under Clause 66 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").

17. This question was heard by both members and is determined in accordance with the opinion of Mrs Bruce. The balance of the hearing was conducted before Mr O'Leary sitting alone, and the determination is his.

18. Mr Peake argues that the Planning Scheme has widened the provisions that require a permit to construct a building, but limited the part that relates to use. The system has been changed. Part of that change is that the Responsible Authority has greater control over development, widening the field of enquiry when it is necessary for a permit application to be made; but third party rights have been removed.

19. The exemption related to Section 52 means that the Council no longer considers whether or not it is necessary to require that an application be advertised under the terms of Section 52.

20. The exemption related to Section 64 means that the Council no longer gives a notice of decision instead of either granting a permit or issuing a refusal immediately.

21. The exemption that is in issue here is the third one, relating to Section 82. This Section states as follows:

(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.

(2) A planning scheme may set out classes of applications for permits the decisions on which are exempted from sub-section (1).

(3) If a planning scheme exempts a decision of an application for a permit from sub-section (1), an application for review cannot be made under that sub-section in respect of that decision.

22. Accordingly, once the new format Planning Scheme began, the Applicants could no longer make an application for review of the Council's decision.

23. But they had by that time already made their Application. The question is, whether they can pursue it through to a decision from the Tribunal.

24. As Mr Peake pointed out, this Tribunal has limited jurisdiction. Under Section 42 of the VCAT Act, its review jurisdiction (relevant to the present Application to Review) is -

"jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker".

25. In the present case, the "enabling enactment" is the Planning and Environment Act 1987, which sets out the rights of parties to bring applications to review the decisions of Responsible Authorities. If the Planning and Environment Act does not create the right to bring the application to the Tribunal, then the Tribunal has no jurisdiction to deal with it.

26. The actual wording of the exemption in Clause 34.03-4 is "An application is exempt...from the appeal rights of Section 82(1) of the Act". When this Planning Scheme commenced, those rights had not been "appeal" rights for nearly a year. They became rights of review on 1 July 1998. But leaving that aside, the subject of the exemption is "the application". Section 82(2) is clear on the point that it is the decision on the permit application that is exempt from review. The application has been completed by a decision before the objector's right of review arises: see Section 81(1).

27. The Respondent submits there are three alternative reasons why the Application cannot proceed. These are (briefly summarised):

1. The commencement of the exemption from review under Section 82 of the Act by Clause 34.03-4 has removed the Tribunal's jurisdiction; or

2. The nature of a review under Section 82 of the Act is that it is a hearing de novo. The Tribunal stands in the shoes of the Responsible Authority. The Council (as Responsible Authority) no longer has power to issue a notice of decision; that is, an objection no longer has its former legal effect, because of the exemption from notice that now applies under Section 64. If no legal consequences flow from an objection, the Tribunal cannot refuse a permit on the basis of objections; or

3. If the Tribunal had jurisdiction, hearing the Application is a fruitless exercise, because the Tribunal is obliged to apply the Planning Scheme as now in force, and Clause 34.03-4 leaves the exercise of the discretion under the Buildings and Works clause as a matter between the Permit Applicant and the Responsible Authority. The purpose of the new powers cannot include giving effect to the concerns of objectors. The Application should therefore be dismissed without a hearing.

28. The Planning and Environment (Planning Schemes) Act 1996 ("the Planning Schemes Act") contains transitional provisions regarding the replacement of the old Planning Schemes by the new VPP format schemes.

29. Section 24 sets out the effect of new scheme. Quoting from the parts that affect the Responsible Authority, the section provides:

(1) On the commencement of a new planning scheme prepared under this Part in respect of an area, any planning scheme in force in that area immediately before that commencement is revoked.

(2) All acts matters or things of a continuing nature made, done or commenced under or in relation to a revoked scheme that could have been made, done or commenced under or in relation to the new planning scheme are to be taken, so far as relates to any period after the commencement of the new planning scheme, to have been made, done or commenced in relation to the new planning scheme.

(3) On and from the commencement of the new planning scheme-

(a) all proceedings commenced by or against a responsible authority under or in relation to the revoked scheme may be continued by or against the responsible authority for the new planning scheme;

(c) all rights and liabilities existing under or in relation to the revoked scheme immediately before the commencement of the new planning scheme continue under or in relation to the new planning scheme, to the extent that the new planning scheme has provisions to the like effect as provisions of the revoked scheme, and may be enforced by or against-

(ii) the responsible authority for the new planning scheme, if they were rights and liabilities of or enforceable against the responsible authority under or in relation to the revoked scheme immediately before that commencement.

30. Mr Peake submitted that Section 24(2) of the Planning Schemes Act did not protect the Application to Review, as the section only protects substantive rights, not procedural matters. He relies on Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259, a decision of the Full Court of the Supreme Court.

31. In that case, the owner of land had applied for a permit under the Melbourne Metropolitan Planning Scheme to use part of his land as a "commercial vehicle park". At the time of the application, and at the date the Council considered the application and made its decision, it was necessary to have a permit for this use. But the owner appealed against the decision, and by the time he got a hearing by the Town Planning Appeals Tribunal, the Planning Scheme had changed. It was no longer possible for a permit to be granted for this use under the Planning Scheme.

32. The facts have much in common with the present case. The difference is that in Ungar's case, the Planning Scheme had taken away the possibility that a permit may be obtained, and had substituted a prohibition. In the present case, the Planning Scheme has changed in such a way that a permit is still required for the development, although the details of what aspects of the development need a permit, and the guidelines to be applied to the decision as to whether a permit should be granted, have altered. If the Applicants for Review (who are objectors, not the permit applicant, so that the question of whether any rights flow from the making of a permit application is irrelevant to them) had obtained a right under the Act with respect to their Application under Section 24(2) of the Planning Schemes Act, the Tribunal could apply the new Planning Scheme to the decision, because it has provisions "to the like effect" as the provisions of the old scheme.

33. Exemptions from Section 52, Section 64 and Section 82 are a feature of the VPP format Planning Schemes. There is an express reference to the possibility of exemptions applying in Section 25 of the Planning Schemes Act:

(3) If notice had been given of an application under section 52 of the Principal Act before the commencement of the new planning scheme-

(a) any exemption in the new planning scheme from the giving of that notice does not apply; and

(b) any additional requirements for notice in the new planning scheme do not apply.

34. The legislature therefore turned its mind to the subject of exemptions as part of the new system. Section 25 gives notice already given under Section 52 continuing effect, and ensures that there is no duplication of notice. It also addresses possible arguments that the new Planning Scheme has created a different or additional procedural requirement that has not already been met, disposing of doubts as to the validity of a Council decision to grant a permit in an application lodged before the new Planning Scheme commenced.

35. Insofar as exemptions have been expressly dealt with in the transitional provisions, the Act gives the completion of notice of an application continuing effect, despite the commencement of the new Planning Scheme. This does not indicate an intention that the exemptions should necessarily apply at once to an application in progress from the moment the new Planning Scheme commences. It provides for a smooth transition, without loss of rights under notices already given.

36. Section 26 of the Planning Schemes Act governs what were at the time the Planning Schemes Act was passed known as "appeals", but which have now been replaced by Applications for Review. Omitting the irrelevant part that applies in the case where the new Planning Scheme commences before an "appeal" was lodged, it states:

(2) If before the commencement of a new planning scheme prepared under this Part-

(a) the responsible authority had decided an application for a permit under the Principal Act in respect of land to which the new planning scheme applies; and

(b) an appeal had been lodged but not determined before that commencement -

the new planning scheme as in force at the date of the determination by the Tribunal applies to the hearing and determination of the appeal.

(3) If on an appeal referred to in this section, the Tribunal determines that a permit should be granted, the new planning scheme as in force for the time being applies to the grant of the permit and anything done under or in relation to the permit.

37. These provisions envisage that there will be a determination of an Application to review a decision made on a permit application that started under the old Planning Scheme; and that the new Planning Scheme will apply to that determination. There is no indication in the wording of this Section that an Application to Review that has already been lodged with the Tribunal is going to be invalidated by an exemption from review in the new Planning Scheme, operating against a Council decision made months previously. But if the new Planning Scheme had caused the proposed development to become prohibited, the pursuit of the Application for review would indeed become futile.

38. The exemptions clause is worded so as to exempt permit applications from "appeal rights". It is the actual right to commence an Application to review under Section 82 that is the subject of the exemption, not merely the content of the Planning Scheme provisions that apply to the subject land. While it can readily be seen that this will operate with respect to Council decisions made after the commencement date of the new Planning Scheme, the Respondent seeks to disturb a right to apply to this Tribunal that has already been exercised by the Applicants.

39. The Applicants' response is a simple one. Ms Starkiewicz, speaking of behalf of both Applicants, submitted that they had lodged a valid Application to Review, at a time when they had a right to do so. Nothing in the Act specifically takes that away.

40. Ms Starkiewicz then relied on Section 24(3) of the Planning Schemes Act, arguing that this Application is a "proceeding" for the purpose of the Section.

41. The Application is a "proceeding" by definition under Section 3 of the VCAT Act. This does not necessarily mean that the definition applies in the Planning Schemes Act. However, having regard to the inclusion of a specific transitional clause for review proceedings that are in progress, the Tribunal agrees with Mr Peake that it is Section 26 that governs this Application. In any event, Section 24 deals with rights and liabilities under the revoked scheme and their continuance; while the right to review the Council's decision is what the Respondent seeks to dispose of, and that right comes straight from the Act.

42. The Applicants accepted that the new Planning Scheme provisions applied to the determination of their Application, as far as the substance of the Planning Scheme provisions was concerned. They accepted that some things no longer require permits, although they had previously been told by Council that the application partly related to the use of the subject land for a "showroom", for which a permit had been required.

43. Mr Peake agreed that if (contrary to his submission) there was jurisdiction, it would be the new Planning Scheme provisions that applied to the review.

44. Ms Starkiewicz pointed out that if the exemption were to apply, it would be unfair. Instead of a balance of controls over fewer uses but with greater control over development, the permit applicant would "get it both ways". The use element of the application no longer needed a permit; and the development aspect would (if the Respondent's argument was accepted) be protected from challenge by the exemption.

45. She added that if the Application to Review is invalidated for the reasons advanced by Mr Peake, the Applicants would have lost their rights because the Tribunal did not hear them quickly enough.

46. Mr Peake responded that if the Application had been heard before the new Planning Scheme commenced, the only matter that required a permit would have been the height of the building over 7 metres.

47. If the Applicants had been made aware of the imminence of the change, and the effect that it would be alleged to have on their rights, they could have applied for a speedy hearing before the commencement of the new Planning Scheme. However as there have been a number of delays in the approval of the new schemes, it may well have been impossible for the Council to provide accurate information of the commencement date before gazettal actually occurred.

48. Mr Peake's argument implies that the "making" of an Application for review must be a continuous process from lodging, to hearing, and then to determination; and that every part of this process is vitiated by the exemption of a permit application from "appeal" rights under Section 82(1). Section 26(2) of the Planning Schemes Act, however, distinguishes between these three steps. If the first has been taken, the others continue under the new Planning Scheme. In this Tribunal's opinion, the right of review itself is not taken away, and the lodging of the Application is not nullified by the commencement of the new Planning Scheme.

49. If it were the intention of Parliament to repeal rights of review that had already been exercised under the Act by the lodging of an Application with the Tribunal retrospectively by an exemption clause in the new Planning Scheme, it would be expected that that intention would be clearly stated or indicated.

50. What is in question is an exemption that would operate in effect as a partial repeal of the right to review. Although contained in the Planning Scheme, the exemptions operate against rights under the Act, not against the provisions of the Planning Scheme itself. If the exemption from review of decisions affects Applications that have already been lodged at the Tribunal before the date of commencement of the exemption, the statutory right of review will have been repealed in respect of decisions made under the previous zone controls by a provision of the new Planning Scheme, after that right has been acted on. This is different in nature from the situation in the cases where it is the substance of the planning or subdivision controls that has been changed by the commencement of the provision. The development does not become as-of-right under the new scheme, thereby rendering the review futile.

51. The Hansard report of the Second Reading Speech made by the Minister for Planning and Local Government, Mr Maclellan, on 14 November 1996 in the Assembly, refers briefly to the relevant transitional provisions as follows:

"Clauses 25 and 26 ensure that applications for permits to responsible authorities and appeals to the Administrative Appeals Tribunal are able to be determined even though the scheme under which they were made or lodged has been revoked. Decisions on these matters must be made in accordance with the provisions of the new scheme. "

52. It is possible to make the decision on this Application under the new Planning Scheme, because that scheme neither prohibits the proposed development, nor allows it as of right. There is nothing in the exemption clause itself, of in Section 26 of the Planning Schemes Act, that indicates a clear and unambiguous intention that the Applicants should be deprived of the opportunity to have their Application determined in accordance with the Planning Scheme provisions that now apply.

53. There has been a previous application in which similar exemptions were considered by the Tribunal: Spowers Architects v Melbourne City Council & Acland Investments Pty Ltd (unreported, No.1998/49493, decided 1 April 1999 by Mrs Rickards). The circumstances there were somewhat different, as there were two sets of exemptions. The parties accepted that the exemptions that were imposed by the new Melbourne Planning Scheme itself on its original commencement had partially removed third party rights; but there were two overlay controls which were not subject to those exemptions. At the date of the hearing, additional exemptions which were to cover all permit requirements that applied to the proposed development were due to be gazetted the following day. It was accepted that this would have the effect of nullifying all third party rights. But the parties had reached an agreement, and a consent order was granted. The effect of the existing exemptions was apparently not disputed; and it was unnecessary for the Tribunal to finally determine the impact of the new exemptions.

54. Returning in more detail to the unanimous judgment of the Full Court in Ungar's case, the main argument was about whether, because the appellant in that case had instituted an appeal at a time when it was permissible to grant the permit he sought, he should be held to have acquired a right or privilege which entitled him to have his appeal heard in accordance with the law as it existed at the time the appeal was instituted. It should be noted that this is not what the Applicants in our case claim: they concede that the substance of the Planning Scheme in operation now applies. In Ungar's case (at p.264) the Court summed up the difference between what the Applicants argue in the present case and what had happened in that case as follows:

"In the present case there is no issue as to whether the appellant had a right of appeal to the Appeals Tribunal. That right was in no way affected by the amendment of the Planning Scheme. The amendment to the Planning Scheme did no more than alter the law applicable to the appellant's application for a permit_."_ [underlining added].

55. The Court referred to the common law principle against retrospectivity, quoting two classic statements, which were also relied on in Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, to which further reference is made below.

"The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events" - Dixon J in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267.

"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language if the enactment" - cited by Gibbs J in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, at p.22, from a judgment of Wright J in In re Athlumney; ex parte Wilson [1898] 2 QB 547 at 551-2.

57. In Ungar's case (at p.264) because the Court was dealing with a case where what had happened was that the law applicable to determination of the application for permit had been altered, it applied the principles enunciated by the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901. That case dealt with the position of parties to an appeal from one authority with discretionary powers to another body with like discretionary powers, where the power to grant permission is repealed during the pendency of the appeal. The Privy Council determined that the institution of the appeal left the question of whether a permission would be granted "quite open and unresolved". The appellant had no more that a hope or expectation that he would be given the permission he wanted.

58. The distinction was between adjudication of rights that have already accrued, and the determination of the question of whether the applicant shall be given a right which he did not have when he set the procedure in motion. The Full Court stated the position (at 265):

"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. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park ... the Appeal Tribunal was bound to refuse to give such a permit to the appellant."

59. The Applicants in this case are not the persons seeking a permit, but persons who have exercised a right to have the Council's decision reviewed. This is all they claim. This right was given to them by Section 82(1) of the Act. There is no question of privileges or rights being granted to them at the Tribunal's discretion. Their right is to have their Application determined in accordance with law. The planning controls under which the development proposal should be assessed by the Tribunal may have altered, but the Applicants do not need to try to tie their Application to Review to the revoked scheme.

60. The provisions of the new scheme govern the question of whether or not a permit is required, provide definitions for the terms used in the zone clause, and set out the criteria as to how the discretionary decision is to be reached. They are not identical in content to the repealed Planning Scheme provisions; but they are substantially equivalent. They can readily be applied to the determination of the present Application, without resort to artificial interpretations, and in accordance with the ordinary presumptions applied to interpretation.

61. In Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, one of the cases relied on in Ungar's case, a unanimous Full Court considered an attempt by an applicant for approval of a plan of subdivision to apply the law in force at a date earlier than the date of decision to his application, then made under the Local Government Act 1958. In that instance, the relevant Act had changed after the application was made, in a manner that would impose an extra charge on the applicant, if it applied to plans already lodged. The right to apply for subdivision was not curtailed; an extra cost was imposed. The Court was dealing with construction of the relevant Act, not the provisions of a Planning Scheme.

62. The Court looked first at the construction of the new provision, to ascertain the intention of the legislature in enacting it. It found nothing which would prevent it from applying as much to the plan submitted before the new provision came into force as the plan submitted after (p.823). As the new provision was neutral, the Tribunal then looked at presumptions which operate to indicate what was intended, and to the interpretative statutory provisions. At that point, the two passages set out above were quoted. The Court went on to quote Fullagar J in Ku-Ring_Gai Municipal Council v Attorney-General (NSW) 91957) [1957] HCA 61; 99 CLR 251 at 269:

"What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences, of past events and transactions."

63. The reasoning then proceeded on the basis that the new charge could only apply if it did not impair or affect some right which the owner already enjoyed as a result of submitting his plan under the previous law. Because his subdivision was of a sort that had previously been exempted from a charge that had now been extended to subdivisions of that nature, the Court was concerned with the survival of exemptions or "immunities". This is a complication not present in our case, which deals with the imposition of exemptions not previously present. In more general terms, the Full Court continued:

"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 itself 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 application determined irrespective of the repeal of the enactment. The making of the application sets on 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."

64. The Applicants in our case are not seeking to have their Application determined irrespective of the "repeal" of the right to review the Council's decision. Their argument did not depend on Section 26(2) of the Planning Schemes Act; but in the Tribunal's opinion, this is the relevant provision. Section 26(2) applies the new Planning Scheme to "the hearing and determination of the appeal". It does not purport to retrospectively remove the right of an objector to review a Council decision which is conferred by Section 82 of the Act. The Applicants seek to have the case heard and determined under the new scheme, and the Tribunal considers that Section 26(2) provides for that to occur.

65. It is still possible to grant a permit for the development under the new scheme; so the effect on the permit applicant is that it has retained its "hope or expectancy" of a permit. Ungar's case and Robertson v City of Nunawading do not justify a conclusion that the permit applicant's previous "hope or expectancy" must be converted into an accrued right to a permit by the commencement of the exemption, although the right of review has already been lawfully invoked.

66. The exemption included in the new Planning Scheme is envisaged within the Section creating the right of an objector to review a decision to grant a permit. Section 82(2) and (3), however, do not demonstrate an intention of the part of the legislature that, upon the commencement of an exemption in the Planning Scheme, the exemption should be able to disturb an Application to Review already lawfully commenced (or "made", to use the word in the Section) when an exemption under Section 82(2) commences. Nor do they have that effect.

67. The Full Court also referred to R v Registrar of Titles ex parte John Wolbers Constructions Pty Ltd [1973] VicRp 71; [1973] V R 723, which again dealt with a plan of subdivision, and an amending Act that included a new prohibition among the matters which the Council had to consider. Newton J found (at 827) that any rights the company had acquired on lodging its plan under the old Act did not include a right to have its plan sealed, but were at most rights of a procedural character. Alternatively, if any right it acquired had fallen within the protection of the Acts Interpretation Act (the predecessor of the Interpretation of Legislation Act 1984):

".... it was a right to have the plan dealt with in accordance with the legislation from time to time; in other words, there was no right to have the legislation remain unaltered."

68. This is essentially the right the Applicants are seeking. They are not seeking to have the Planning Scheme "remain unaltered", but to apply the new provisions to the determination of the application. The John Wolbers Constructions case is not inconsistent with that.

69. Mr Peake argued that, if there is any continuing right under the Act, by which the new Planning Scheme applies to this Application, then the whole Clause 34.03-4, and indeed the whole of the new Planning Scheme must apply, not just a part of it. It followed that the new exemptions must also apply.

70. Clause 34.03-4 deals with "applications", meaning permit applications. The permit application in this case had been completed by a decision before the new Planning Scheme started. It was never an "application" under the new Planning Scheme. A literal reading of Clause 34.03-4 does not require that it include the review of a decision made under the repealed scheme.

71. The effect of an exemption under Section 82(2) is explained by Section 82(3): "an application for review cannot be made". If the exemption as set out in the Planning Scheme is worded so as to be any wider than that, it exceeds the enabling power. Section 6(2)(kd) of the Act does not assist in that regard, as it authorises exemptions from "the requirements" of Section 82(1), not the rights which it confers.

72. In this case, an Application for Review has been made. Section 26(2) of the Planning Schemes Act provides for its continuance and specifies which scheme provisions are to be applied in determining it.

73. Mr Peake's second argument relies on the nature of the review hearing; it places the Tribunal literally in the position of the Responsible Authority. An objector, it is argued, can be in no better position at the Tribunal than at the Council decision stage. The Applicants would still be able to lodge an objection with the Tribunal, as Section 57 does not make a right to object dependent on receipt of notice of an application, which would not be given under the new Planning Scheme, but on the objector being a person affected by the grant of the permit. However, no legal consequences flow from the objection. Logically, it is argued, the Tribunal cannot refuse a permit based on objections from which no legal consequences could flow.

74. The Tribunal cannot go quite as far as that. Even if the exemptions in the new scheme had all applied at the relevant time, we see no reason why the Council should not have taken the Applicants' objection into account in reaching a decision. Indeed, under Section 60(1)(a) of the Act, the Council would still have been obliged to consider an objection that it had received. The consequence of the exemptions, if they had operated at that time, would be that the Council would have had to issue either a permit or a refusal; not a notice of decision. The Applicants may not have been able to review the decision, but their objection was not totally futile. It may have influenced the Council with respect to the imposition of conditions, for example.

75. Alternatively, Mr Peake applies the policy of the new Planning Scheme in broad terms. He argues that the intention is that no third parties should intervene in permit decisions in relation to development of a building under Clause 34.03-4. The decision is a matter solely between the permit applicant and the Responsible Authority. The purpose of the new powers cannot include giving effect to the concerns of an objector. No weight could be given to the Applicants' case; and therefore the Application should be dismissed.

76. The intention of the new provisions to have a decision made on a permit application without the intervention of third parties, when the third parties have already brought their Application to the Tribunal under Section 82 , has to be found in the legislation. Hansard was found to be of no assistance to Mr Peake on this point.

77. In summary, it is the Tribunal's opinion that the objectors' statutory right of review has not been excluded by the commencement of an exemption from review in a new Planning Scheme, after their Application had already been lodged with the Tribunal. The effect of an exemption on the right to bring a review of a decision is not the same issue as the question of which Planning Scheme provisions apply to the determination of the review. The Planning Scheme as in force at the date of the decision applies to the determination; and if the right to review has been robbed of content by a change in the Planning Scheme, the Application is indeed rendered futile.

78. To take away the right of review of persons who had already lawfully exercised that right by the commencement of the exemption in the new Planning Scheme needs stronger and more precise language than appears in either Section 82(3) of the Act or Section 26(2) of the Planning Schemes Act. The Tribunal is of the view that, on the contrary, Section 26(2) is effective to protect the continuation of the right of review. Whether the right still has substance and content depends on the provision of the new scheme, and whether a permit is still required. But the Tribunal has jurisdiction to proceed with a determination of the Application to Review.

79. This concludes the part of the decision related to the hearing of the preliminary legal point, determined in accordance with the opinion of Mrs Bruce. Following the completion of the preliminary legal point, the hearing resumed under Mr O'Leary sitting alone.

* In the Light Industrial zone, "Office" was a use that required a permit. "Warehouse" and "Caretaker's House" were as-of-right; and .

* "Warehouse" was defined in the Regional Section of the scheme as:

"A building or enclosed land used to store and display goods and to sell them only by wholesale."

81. By contrast, "Commercial display area" was defined as:

82. If the proposed use did not include storage and/or wholesale sales, as a "Commercial Display Area" it needed a permit. The combined use of storage and/or wholesale sales together with display of goods constituted a "warehouse" and did not need a use permit.

"A building used for public or other administration or to conduct a business, on the site of which no materials or goods intended for manufacture, sale or hire are stored."

84. If the offices were intended for separate occupation, a permit would have been required for the use. If they had been ancillary to the warehouse use, no separate permit would have been needed for the use.

85. The subject site is now zoned Business 3. Both warehouse and office are Section 1 uses, for which no Permit is required.

"Land used to store or display goods. It may include the distribution and the wholesale selling of the goods."

87. Mr Huczek argued that "Showroom" was not properly considered to be within the definition of "Warehouse" in the new scheme, but was a Section 2 use, as an innominate use not otherwise included in the Use Table. However, the new definition plainly covers "display of goods, thus including both the "showroom" and "warehouse" element of the proposal as shown in the application documents. No use permit is therefore required for this use under the present scheme.

88. One of the conditions under which use as a "Warehouse" retains "as of right" status has to do with distances between the subject land and nearby uses identified in the Section 1 use table. One of these relates to the distance of the subject land from land which is in a residential zone.

89. Although the Applicants' property is included in the Business 3 zone, the Applicants submit that it is residential. It may be, as regards its present use, but it is the distance from land "in a residential zone" which must be measured to meet the condition on the use. The condition is met by the proposal.

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To encourage the integrated development of offices and manufacturing industries and associated commercial and industrial uses.

91. The Decision Guidelines are set out in Clause 34.03-2. In addition to the matters set out in Clause 65, and the standard clause as to policies, the zone guidelines considered relevant may be summarised as:

* The effect that existing uses may have on the proposed use.

* The effect of traffic to be generated on roads.

* If an industry or warehouse, the effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.

92. The application for permit is for the construction of a three storey warehouse building with offices. The development will be divided into two distinct warehouse occupations. The warehouse on the northern side of the property will be three storeys, whilst the warehouse on the southern side will be two storeys in height. Eight car parking spaces, loading facilities and access will be provided from the front. The height of the building will be 11.45 metres although the southern boundary wall height varies between 3 metres and 8.9 metres.

93. The subject site is located on the east side of Dover Street, 5 metres south of the intersection with Stephenson Street. It has a frontage of 16.3 metres and a depth of 28.66 metres giving an area of 467.16 square metres. The site is flat and is currently occupied by a plant nursery without any built improvements.

94. Dover Street is a mixed industrial/residential street. The industrial uses comprise warehouse/light industry type uses, whilst residential uses principally comprises remnant attached workers cottages. To the north of the site is a small 5 metre wide "park" located on the south side of Stephenson Street and is opposite a high concrete embankment which forms part of the Dandenong/Frankston railway line and an at-grade car park. Land to the rear comprises a small at-grade car park and a brick industrial building which is about 8.5 metres in height. The sites to the immediate south comprise a row of attached single storey workers' cottages. Dover Street is a one-way street with traffic movements in a southerly direction. The road has a pavement width of 6.2 metres with parking provided on the west side only.

95. During the course of the hearing, the Tribunal was provided with a substantial array of information relevant to a decision being made. The Tribunal also inspected the subject site and neighbourhood. It as considered the issues raised by the Applicants, the purpose of the zone, and the Decision Guidelines. The Tribunal considers that the Application for Review should not be allowed, on the following grounds.

96. The property owned by the applicants for review is a single storey workers' cottage situated immediately to the south of the subject development which is at 13 Dover Street. The Tribunal was advised during the review hearing that the applicants for review had purchased this property about 18 months ago and were intending to move into this house in the future.

97. Examination of the development plans for 7 - 11 Dover Street showed that the southern wall of the proposed building abutting 13 Dover Street will be two storey in height for most of its length, although it will be reduced to about 3 metres where it abuts the open space area on 13 Dover Street. The Tribunal considers that the height and siting of the proposed development is satisfactory in a Business Zone. Whilst it is three storeys on its northern boundary, there has been a deliberate attempt to lower it where it abuts the dwelling at 13 Dover Street, and the result is considered satisfactory. Neither the zone purpose, nor the decision guidelines, indicate an intention that residential amenity should be an issue in this zone, or residential standards of amenity applied within it.

98. The Tribunal has viewed shadow diagrams of the proposed southern wall together with shadowing of the other adjoining building to the rear of the objectors' property. Whilst there will be some increase in overshadowing, the increase in overshadowing is considered to be acceptable given the zoning of the land and the form of development in this area.

99. The Tribunal considers that daylighting levels are satisfactory given that light is predominantly sourced from the front and rear of 13 Dover Street. The Tribunal is also satisfied that the responsible authority has not ignored daylighting issues. Condition 1(a) of the Notice of Decision requires removal of glass blocks in the southern boundary wall of the proposed development. This condition is to ensure that future development opportunities for 13 Dover Street are not compromised by the location of glass blocks in the side wall of the development. Such measures have previously been imposed by the responsible authority and are acceptable (see Wood Marsh Architects v Yarra City Council 1997/81886).

100. The Tribunal considers that overlooking from the proposed development would be negligible. The proposed first floor level is offset at the rear so as to ensure there is little direct overlooking into the rear yard of 13 Dover Street. Any other overlooking from the development would be across Dover Street or towards the Dandenong/Frankston railway line.

101. The Applicants raised concern about potential noise from the warehouse operations. Amenity matters are now controlled by the first part of Clause 34.03-2 of the Planning Scheme. Clause 34.03-2 contains a separate provision relating to use of land and the amenity of the neighbourhood, in addition to the decision guidelines. The first section in this Clause states:

"A use must not detrimentally affect the amenity of the neighbourhood, including through the:

* Transport of materials, goods or commodities to or from the land,

* Appearance of any building, works or materials,

* Emission of noise, artificial light, vibration, smells, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil."

102. Later the clause refers to application requirements, which also refer to amenity matters. The remainder of Clause 34.03-2 refers to consideration of applications for "use", which are inapplicable in this case because the subject application refers to "buildings and works" only.

103. Although there are no operative clauses relating to applications for development alone, the "Amenity" section of Clause 34.03-2 is general in its application, and is not related only to "applications for use". In the Tribunal's view, it applies to all use in the zone, whether a permit is required or not. Further, the application requirements include references to "use" in the case of a warehouse, which is a use allowed as of right, implying that the use of a building should be adverted to in the application, even if no permit is required for that aspect. This is consistent with the provision in the decision guidelines that in the case of an application for an industry or warehouse, "the effect that the use may have" (in certain circumstances) must be considered.

104. As the "amenity clause" is applicable to all use in the zone, and no other relevant provision is applicable to a development application in these circumstances, there is no necessity to impose additional requirements on this development.

105. Concern was raised about potential traffic difficulties particularly for commercial vehicles entering Dover Street and attempting to manoeuvre into the subject site for loading purposes. During its inspection the Tribunal noted there were other factories in Dover Street which seem to cope with trucks undertaking loading and manoeuvring activities. It is acknowledged that it is not ideal, but given the size and layout of the proposed development, it is considered that the access, manoeuvring and loading facilities are acceptable.

106. The applicants for review claimed the proposal would be unsympathetic to the streetscape and the appearance of their cottage, and was of poor architectural design. The Tribunal viewed the plans and documentation with the application, and considers that the proposed design, whilst not being outstanding, is commensurate with other contemporary commercial buildings in the locality. The Tribunal acknowledges the building will be different to the architecture and streetscape of some properties in Dover Street, but this is not necessarily a requirement of the zone. There is no requirement for the development to meet the "character" of the area as it would in a "Good Design Guide" situation. Rather it is necessary for it to meet standards which are applicable in a Business 3 Zone.

107. The Applicants raised concerns about density, neighbourhood character, site layout and landscaping, building envelope, visual and acoustic privacy. These issues are usually addressed in residential development cases, or cases where there are specific design and development or heritage overlays. The Applicants made particular reference to the Good Design Guide for Medium Density Housing. Use of the Good Design Guide in this case is inappropriate. It may have been appropriate if the site was to be rezoned Residential or Mixed Use. However in this case, the site has recently been rezoned from Light Industrial to Business 3 under the new VPP based planning scheme. This rezoning exercise involved a substantial review of Council planning provisions and policies The Tribunal was told there was no objection from the applicants for review or any persons in Dover Street to the Business 3 zoning. Whilst the owners of 13 Dover Street have expectations that certain standards of residential amenity should be maintained or observed in a new development, these expectations are at odds with the purposes of the zone.

108. The applicants for review claimed the cottages to the south of the subject site will not be redeveloped for commercial purposes. This is a matter of conjecture, and may vary over time.. It is not for the Tribunal to refuse a commercial development which complies with the zone requirements in a "Business" zone on the basis that if residential standards of amenity are applied, it would have an adverse impact on a non-conforming residential use. Such assertions would render the planning controls unwieldily, cumbersome and unpredictable, and would lead to a reduction in confidence in those particular planning controls.

109. The car parking provision for the proposed development is considered to be adequate. It is noted that the car parking provision is greater than the requirements in the Planning Scheme for a warehouse use although it is acknowledged that it would be low if it was for an office use only. In this case, the Tribunal considers that the eight car parking spaces provided for the two warehouse occupancies will adequately cater for the use, noting that the offices will be ancillary to the warehouses.

110. For the above reasons, the Tribunal has jurisdiction to entertain this Application, but this application is disallowed on the planning merits. It is appropriate for a permit to be granted in accordance with the Notice of Decision issued by the responsible authority on 1 March 1999.

111. None of the parties sought an order for the costs of this hearing.