For Lend Lease Apartments (Armadale) Pty Ltd and Larkfield (Orrong Road) Pty Ltd

Chris Canavan QC and Nick Tweedie of counsel, instructed by Rigby Cooke

Stuart Morris QC and Jennifer Trewhella of counsel, instructed by Norton Rose Fulbright

Counsel for the Department of Transport, Planning and Local Infrastructure advised the Tribunal in writing that the Minister did not propose to participate in the proceeding or make any submissions.

1. Lend Lease Apartments (Armadale) Pty Ltd and Larkfield (Orrong Road) Pty Ltd (Lend Lease) own the land at 590 Orrong Road & 4 Osment Street, Armadale.
2. The land is the subject of Amendment C153 to the Stonnington Planning Scheme, for which Stonnington City Council (Council) is the planning authority. A version of the Amendment has been adopted by the Council and forwarded to the Minister for Planning (Minister) for approval, but has not yet been approved.
3. Lend Lease seeks to contest certain 'defects in procedure' that it alleges have occurred through a failure by the Council to comply with the Planning and Environment Act 1987 (P&E Act) in the processing of Amendment 153. In particular, Lend Lease alleges that the Council:
   • exhibited the Amendment in a form that included a mandatory height limit of 17 metres, and a maximum dwelling yield of 250 dwellings;
   • after considering submissions, resolved to change the height limit to 24 metres and abandon the dwelling density restriction;
   • appeared before a panel and led expert evidence in support of its changed position, leading Lend Lease and the panel to focus at the panel hearing on the changed (rather than exhibited) version of the Amendment;
   • contrary to the panel and officer recommendations, and without giving further notice or reasons, adopted a version of the Amendment that re-instated the 17 metre height limit and 250 dwelling density restriction; and
   • referred to the Minister for approval a version of the Amendment that differed from what the Council had adopted (i.e. including further changes), and without providing proscribed information including the reasons for its changes in relation to the height limit and dwelling density, and the reasons for its departure from the panel recommendations.
4. Lend Lease contends that the Council's conduct has undermined the integrity of the Amendment C153 process, and has serious implications for the planning scheme amendment process generally. Lend Lease argued that the Tribunal should not condone a Council tactically manipulating the version of an amendment debated or scrutinised at a panel hearing, which may bear little resemblance to what was exhibited or what is ultimately adopted. The Council countered that Lend Lease's position may be one of 'moral outrage', but did not expose any defect in procedure for the purpose of s 39 of the P&E Act. The Council contended that it was entitled to change and later reverse its stance in relation to Amendment C153, and had not failed to comply with the P&E Act in doing so.
5. This proceeding is brought by Lend Lease under s 39 of the P&E Act, which allows the Tribunal to determine whether there has been a failure to comply with Divisions 1, 2 or 3 of Part 3, or Part 8, of the P&E Act in relation to a planning scheme amendment. The Tribunal is therefore called upon to consider and determine any specific failures to comply with these provisions, rather than to review the process generally. Lend Lease provided amended grounds and particulars detailing its allegations of certain specific failures to comply.
6. I have considered these allegations in these reasons, in turn, in two parts:
   • allegations relating to the consideration of submissions and panel processes for Amendment C153; and
   • allegations relating to the adoption of Amendment C153 and forwarding it to the Minister for approval.
7. As will be seen, although some of the Council's actions in the pre-panel and panel phases of the Amendment was confusing, I have not found any specific defects in procedure for that period by either the Council or the panel. However, an examination of the adoption phase of Amendment C153 exposes flaws in the process. At best these can be described as simple failures to comply with the P&E Act but, at worst, they reflect a concerning course of conduct by the Council.

1. The land is a significant and strategic development site. The Tribunal has previously granted a permit for redevelopment of the land at a level that would not now be permitted if it were to be considered under the Stonnington Planning Scheme with Amendment C153 approved in its adopted form. The grant of the permit was vigorously opposed by the Council and a number of community objectors. An appeal by the Council to the Supreme Court has been recently dismissed, with the judgement in that appeal delivered since the hearing before me. However, the parties were agreed that, save for this background context, the permit and Supreme Court proceeding are not relevant to the matters that I must decide in this proceeding.
2. The proceeding was essentially a debate between Lend Lease and the Council. Pursuant to s 39(2) of the P&E Act, the Minister for Planning is automatically a party to a s 39 proceeding. The Minister has not approved Amendment C153 and his conduct and processing of the Amendment has not been called into question. Through a letter from his departmental counsel, the Tribunal was advised that the Minister did not propose to participate in the proceeding nor make submissions. Planning Panels Victoria was notified of the application and hearing, but also elected not to participate or pursue its entitlement to make a submission under s 39(3) of the P&E Act. This is understandable. As will be seen, the allegations against the panel were peripheral and not substantiated.
3. Section 39(1) of the P&E Act provides that:

39(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

1. The Council properly conceded that, if there was a failure to comply, then (save in one respect) Lend Lease would be substantially and materially affected by that failure and have standing under s 39. The proviso was that Lend Lease had alleged a failure by the Council to notify all those potentially affected by the Council's change to the Amendment after initially considering submissions. Lend Lease did receive notice of those changes, and was therefore arguably not affected by any omission to notify others. As will be seen, little turns on this. I am satisfied Lend Lease would be substantially and materially affected by the key failures it alleges if those failures are made out.
2. In respect of some of the alleged failures to comply, the Council disputed whether Lend Lease had referred the matter to the Tribunal within one month of becoming aware. Some of the key allegations arise from a Council resolution of 13 August 2012, from a course of correspondence between the parties and the panel in September and October 2012, and from a panel procedural decision for which reasons were given on 9 November 2012. Indeed, the Council's lawyers indicated in a letter dated 11 October 2012 that, if Lend Lease wished to pursue its then expressed concerns about the amendment and panel process, it should do so through the Tribunal.
3. Lend Lease contends that these earlier defects in procedure did not however crystallise into a failure to comply with the P&E Act until the Council adopted the Amendment in the manner it did on 18 February 2013. Lend Lease made its application to the Tribunal within one month of this, on 15 March 2013. In the alternative, Lend Lease made application for an extension of time under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) in relation to these earlier defects in procedure.
4. It is true that Lend Lease could have made an earlier application in relation to the manner in which the Council's purported 'changes' to the amendment were resolved and notified to submitters. For the purpose of s 39(1) of the P&E Act, Lend Lease was well aware in the period from August to November 2012 of the material facts upon which it now relies to support many of its allegations. However, I am sympathetic to the view that the significance of the matters that stemmed from the Council resolution of 13 August 2012 did not manifest themselves until the Council's somewhat unexpected reversal of its position in relation to Amendment C153 through its adoption of a different version of the Amendment on 18 February 2013. Accordingly, even if Lend Lease was aware of some of the material facts at an earlier stage than one month prior to its application, I would have been minded in the circumstances of this case to extend time under s 126 of the VCAT Act. I say this having regard to the usual principles (including what are known as the Hunter Valley factors) that apply to the exercise of discretion under s 126, and which were dealt with in submissions to me.
5. Again, as will be seen, little turns on this, and it is unnecessary to finally decide this issue, as I have not found that the earlier conduct of the Council in the processing of Amendment C153 can be technically characterised as a failure to comply with relevant provisions of the P&E Act. The key failures to comply that are made out in this proceeding occurred at the time of adoption of the Amendment and its forwarding to the Minister, which was within one month of the Lend Lease application.
6. I turn now to consider the specific allegations.

ALLEGATIONS RELATING TO SUBMISSIONS & PANEL PROCESSES

Council's alleged failure to comply with section 23

1. Many of Lend Lease's allegations arise from its characterisation of what the Council purported to do in its resolution of 13 August 2012, in exercising its discretion under s 23 of the P&E Act. It is therefore convenient to deal with this matter first.
2. Lend Lease essentially contends that the Council:
   • formally changed the Amendment, by unilaterally changing the maximum height limit from 17 to 24 metres despite no submitter having requested such a change; and
   • formally abandoned part of the Amendment by deleting the 250 dwelling density restriction.

23(1) After considering a submission which requests a change to the amendment, the planning authority must -

(a) change the amendment in the manner requested; or

(b) refer the submission to a panel appointed under Part 8; or

(c) abandon the amendment or part of the amendment.

1. As an initial observation, it is noted that s 23(1) uses the word 'must', and the disjunctive word 'or' on two occasions between the sub-sections. The provision thus purports to create a mandatory obligation on a planning authority (here, the Council) to do one of three alternative things in relation to each submission it receives requesting a change to an exhibited amendment.
2. As a matter of statutory construction and common sense, I agree with Lend Lease that, if a submission requested several changes to an amendment, the Council could deal with each request as a separate part of the submission, and could conceivably make different decisions for different requests or parts of the submission. For example, it could abandon part of the amendment in response to one requested change, but refer another requested change to a panel.
3. Interestingly, s 23(1)(a) purports to allow a Council to change an amendment only 'in the manner requested'. This suggests that the Council cannot use the s 23 process to make a unilateral change to an Amendment that has not been requested by a submitter. What is actually 'in the manner requested' by a submitter may be a matter of common sense interpretation having regard to the facts and circumstances of a particular amendment. For example, if an exhibited amendment contained a provision for a 3-metre setback to a particular boundary, and a submission requested that the building setback be substantially greater but without nominating a particular amount, it would still be arguably 'in the manner requested' (subject to the circumstances of the particular amendment) for the Council to change the amendment to incorporate a 10-metre setback. The Council could not however introduce such as change under the formal s 23 process if no submitter requested any change to any building setbacks.
4. The matter is perhaps also more complicated where the Council receives a number of competing submissions that request conflicting or mutually exclusive changes to an amendment. It would be problematic for a Council to formally change an amendment in response to one submission, and not then refer that submission to a panel (given s 23(1)(a) and (b) purport to be alternative options), but to refer other submissions requesting conflicting changes to a panel. Those other submissions would still relate to the exhibited (rather than changed) amendment, and could ultimately undermine the change made to the amendment. I say 'problematic' in the sense that this course of action may not be wholly impossible if undertaken carefully and transparently, and perhaps with some form of further notice. However, in the case of multiple submissions requesting conflicting or mutually exclusive changes, the more usual and sensible Council response is to refer all relevant submissions to a panel.

1. The version of Amendment C153 exhibited in June 2012 contained a number of provisions intended to facilitate and control future development of the land. This included a proposal for a new schedule to the Development Plan Overlay (DPO-2) that, in turn, included design objectives including a maximum height limit of 17 metres and a limitation on the number of dwellings on the land to a maximum of 250.
2. By reference to the explanatory report and other documents, including a brochure distributed by the Council to local residents, it is clear that the 17-metre height limit and 250 dwelling density restriction were key elements of the Amendment. This was common ground. Lend Lease described these two elements as 'key restrictions' to which it was opposed.
3. A number of submissions were lodged in response to exhibition. Lend Lease suggested that there was confusion about how many submissions were lodged, with various documents referring to 10, 17 or 18 submissions, and it queried whether all had been properly considered by the Council and/or referred to the panel. Upon analysis of the relevant documents, there is no real confusion. Ten submissions were received within time, and are referred to in the schedule to the officer report for the Council meeting of 13 August 21012. The panel report identifies 17 submissions, which includes an additional seven 'late' submissions (which the Council had a discretion to consider under s 22(2) of the P&E Act, and refer to the panel). The report to the Minister identifies 18 submissions, including a further late submission that did not request a change to the amendment, and was not therefore required to be referred to the panel (having regard to s 23(2)).
4. At its meeting on 13 August 2012, the Council resolved as follows:

1. Request the Minister for Planning to appoint a Panel pursuant to Section 23 of the Planning and Environment Act 1987 to hear all submissions and consider proposed Amendment C153 (590 Orrong Road and 4 Osment Street, Armadale).
2. In its submission to the Panel, adopt a position of general support of Amendment C153 generally in accordance with the Officer's response to the submissions as contained in this report and attachments (including a maximum height limit of 8 storeys (24 m), and no maximum density specified).

3 Advise the submitters to proposed Amendment C153 of Council's decision.

1. Refer all submissions and any late submissions to the Panel appointed to consider the proposed Amendment C153.

5 Use this report to form the basis for Council's submissions to the Planning Panel.

1. Authorise Officers to revise the Amendment documents to include changes outlined in this report to the Panel for consideration, including changes resulting from resolving conflicting points of view in relation to transport and urban design.
2. Note that over expenditure of approximately $150,000 will result in the budget allocation for 2012/ 2013.
3. The parties are agreed that this resolution comprises the Council's exercise of discretion under s 23(1) of the P&E Act, but disagree about how it should be interpreted.

1. Lend Lease argues that, through resolution of 13 August 2012, the Council pursuant to s 23(1) of the P&E Act:
   • abandoned the part of Amendment C153 relating to the maximum 250 dwelling density restriction (by referring to 'no maximum density'); and
   • changed the Amendment, by adopting a maximum height limit of 24 metres rather than the 17 metres exhibited.
2. It argues that there is support for this contextual interpretation having regard to surrounding or subsequent documents. I will refer to examples of these in the discussion, below.
3. Lend Lease specifically contends that the changes made by the Council failed to comply with s 23(1)(a) of the P&E Act in that they were not requested by any submitter. It alleges that the Council had no power to refer a changed amendment to the panel.

1. I agree with the Council that its resolution should be considered holistically, and that it should be interpreted primarily by reference to its own terms. Whilst some other later documents perhaps create uncertainty or ambiguity about the Council's position, it is the resolution itself that sets out what the Council decided to do in the purported exercise of its discretion under s 23 of the P&E Act.
2. I consider that the Lend Lease argument on this ground fails at this threshold level. Paragraphs 1 and 4 of the resolution clearly indicate that all submissions were to be referred to a panel hearing. Given that s 23(1) of the P&E Act essentially allows the Council to choose one of three alternative options in relation to each submission (i.e. change the amendment in the manner requested, refer it to a panel, or abandon the amendment or part of it), the Council has chosen the second option in relation to all submissions. This suggests that something akin to a presumption of regularity ought to apply in that the Council, having expressly chosen one of three overtly alternative options, has by necessary implication ruled out the other two. Whilst such a presumption is rebuttable, there is no reference at all in the resolution to any abandonment of part of the amendment, nor any express reference to a formal change to any part of the amendment in a manner requested by a submitter.
3. This view is bolstered by reference to the officer report and attachments that were before the Council when it made its resolution. Whilst an officer report will not always be a definitive guide to a resolution made by the Councillors, here the resolution (in paragraph 2) expressly adopts a position 'generally in accordance with the Officer's response to the submissions as contained in this report and attachments'. The resolution is clearly intended to be interpreted by reference to these documents. In this regard:
   • Lend Lease refers to a paragraph in the officer report (at p 65 of the agenda papers) where the officer recommends that the Council proceed with Amendment C153 'adopting the height limits established previously (24 metres) ... and removing the maximum density'. It says this is evidence of a change and partial abandonment. However, the immediately preceding paragraph is more informative in expressing the officer's response:

Given the conflicting submissions, it is not possible for the Council to agree to make all changes in accordance with the submissions. Accordingly, the Council must forward the submissions and the Amendment to an independent panel ...

This reinforces the view that the Council was not attempting to deal with individual submissions in different ways under s 23, but was referring all submissions to a panel under s 23(1)(b).

• The attachment to the officer report that details the particular response to each individual submission does no more than 'propose' to reinstate the 8 storey height limit, and 'suggest' removing the density restriction. It does so generally in response to a number of submissions. The fact that the officer report recommends 'no change' in response to some other submissions does not mean, when read in context with the Council resolution, that the changes that were recommended in this annexure became formal changes to the Amendment in a manner requested by a particular submitter. Indeed, as Lend Lease itself concedes, no submitter expressly requested a change to an eight storey (24 metre) height limit.

1. Paragraph 2 of the Council resolution, which is the only paragraph expressly referring to the height limit and density, is clearly prefaced with the words: "In its submissions to the Panel, adopt a position of ...". I agree with the Council that the only reasonable interpretation for these words is that they represent the advocacy position that the Council resolved to pursue at the panel hearing. They do not demonstrably reflect any intent to formally change the amendment, or to abandon part of the amendment, at that time under s 23(1)(a) or (c) of the P&E Act in response to a particular submission. Under s 22(1), the Council must consider all submissions it received in response to the exhibited Amendment. Having properly considered those submissions, the Council was not bound to maintain support at the panel only for its exhibited version. It was open to it (and indeed appropriate in its role as planning authority) to propose modifications or compromise outcomes to the panel arising from its consideration of submissions.
2. Similarly, paragraph 6 of the Council resolution should be read in a similar way. It authorised council officers to 'revise' the Amendment 'documents' '... for the Panel's consideration'. It did not formally change the Amendment. Contrary to the contentions of Lend Lease, the Council did not refer a changed amendment to the panel, but merely proposed changes for the panel to consider. I think it is an artificial and circular approach for Lend Lease to seek to imply that the Council has formally changed the Amendment other than in a manner requested by a submitter, and then seek a contextual interpretation of the resolution based on that 'change' that suggests a non-compliance with s 23. A simple, literal and common sense interpretation of the resolution accords with the Council having complied with its obligations under s 23 of the P&E Act.
3. This is sufficient in my view to dispose of Lend Lease's first ground. As I have inferred in my comments earlier, there is some danger in relying (particularly in a piecemeal fashion) on subsequent conduct or documents as altering the interpretation to be gleaned from the resolution itself. However, given Lend Lease's reliance on some subsequent documents, it is worth making brief comment about them.
4. I accept that some aspects of the panel correspondence and panel report contain wording that might, with hindsight, be construed as ambiguous -e.g. the panel's direction that the Council provide, and its subsequent reference to, a set of Amendment documents with tracked changes '... showing changes adopted by the Council post-exhibition'. Similarly, there is a letter from Council's solicitors dated 25 September 2012 to the panel, responding to that direction, confirming that 'at its meeting on 13 August 2012, the Council resolved to support a 24 metre height limit and to abandon the proposed restriction of 250 dwellings as part of Amendment C153'.
5. Equally, however, I agree with the Council that one should not look at these documents in isolation. It is a case of 'one in, all in', and there are other documents that paint a different picture. Moreover, as others have stated judicially, it is inappropriate to dissect documents after the event 'minutely and finely with an eye keenly attuned to the perception of error'. In relation to the two examples above:
   • although the panel sought and received an updated version of the Amendment with 'track changes' from the exhibited version, its status was the subject of debate and discussion at the panel. Lend Lease claimed it was a new or changed Amendment and ought to be re-exhibited. The panel's written reasons dated 9 November 2012, requested by Lend Lease, disclose that the panel did not accept this contention, and it treated the redrafting exercise as a commonplace mechanism for the Council to bring suggested changes to a panel, and that it was not a change to the Amendment at that stage. Indeed, the panel's views appear to be consistent with my own findings above.
   • the Council's solicitor's reference to 'abandon' the density restriction does not affect the proper interpretation to be given to the resolution itself. Moreover, even though Lend Lease now relies on that reference to support its contention that the Council did abandon part of the Amendment, its own solicitor's response to the panel at the time, in a letter dated 10 October 2012 was that the Council 'has clearly not chosen to abandon the Amendment, or any part of it'. In a subsequent letter dated 11 October 2012, the Council's solicitors also clarified that the Council had only exercised its power under s 23(1)(b) - i.e. to refer all submissions to the panel, and it hadn't fundamentally altered the Amendment in its 'to-be-submitted changes' that 'might be made at the adoption stage' and that were being brought to the panel's attention so they could be the subject of commentary by the panel.
6. Accordingly, even if I were to adopt the contextual approach now advocated by Lend Lease, and to have regard to surrounding and subsequent conduct by the parties in interpreting what the Council actually did in its resolution of 13 August 2012, that approach does not advance Lend Lease's cause.
7. Before leaving this ground, I also wish to say something more on Lend Lease's claim that the Council effectively abandoned that part of Amendment 153 dealing with dwelling density, under s 23(1)(c) of the P&E Act. Lend Lease essentially claims that, having abandoned part of Amendment C153 in relation to dwelling density, it could not then refer to a panel any submission that had led to that abandonment (given the alternative options in s 23(1)), nor could the panel consider it, nor could the Council later reinstate dwelling density into the Amendment.
8. As I have indicated, the abandonment of part of Amendment C153 is not evident in the resolution, and there was no corresponding notification to the Minister as would have been required under s 28. I consider this to support the view that there was no abandonment, rather than being reflective of a further defect in procedure.
9. Moreover, I consider Lend Lease's claim stretches what might properly be characterised as the formal abandonment of part of an amendment for the purposes of the P&E Act. In my view, the abandonment of part of an amendment requires the deletion of a discrete part of an amendment that is capable of being separated out and severed from the balance. A clear example would be where an exhibited amendment applied to two parcels of land, and the Council abandoned its application to one land parcel but proceeded in relation to the other. Another example would be where an exhibited amendment proposed both a rezoning and the application of an overlay control to a parcel of land, and the Council abandoned the overlay and proceeded only with the zone. There may be other less obvious examples where a discrete section of an amendment could be similarly abandoned. However, here, Amendment C153 proposed amongst other things a DPO-2 schedule that, in turn, contained many detailed design objectives and permit requirements grouped under common themes. I am not convinced that the removal of a few words from one objective under one sub-heading (albeit purporting to remove words promoting a dwelling density restriction) is the formal abandonment of part of the Amendment. If it was so construed, then any proposal for less restrictive wording to an exhibited zone or overlay control could arguably be characterised as a partial abandonment, rather than just as a change. That would be confusing and impractical in its implications for the amendment process, and I suspect is not what Parliament intended.

1. It follows that I consider, for the purposes of s 23(1) of the P&E Act, the Council referred all submissions to a panel and neither changed the Amendment nor abandoned any part of the Amendment at that stage. Lend Lease's ground alleging a failure by the Council to comply with s 23 fails.

1. Lend Lease's ground alleging that the panel failed to comply with s 23 of the P&E Act fails at a broad threshold level. It claims in its further particulars that the panel considered a changed amendment, and not submissions about the Amendment.
2. There is no obligation cast upon a panel under s 23. The only obligations are cast on the planning authority. To the extent this ground as pleaded (and the further particulars) refers to s 23, there can be no failure by the panel to comply with s 23 if that section imposes no obligation on the panel to do anything.
3. I have already indicated that there was no changed amendment at this stage. Rather, the Council had resolved to advocate for certain changes at the panel hearing.
4. To the extent this ground could conceivably relate to the panel's obligation under s 24 of the P&E Act to consider all submissions referred to it and to give submitters a reasonable opportunity to be heard, I agree with the Council that there is no evidence that the panel did not do this. The panel report lists all submitters and refers to many specific submissions in its analysis of the relevant planning issues. Those submissions had all been made initially in relation to the exhibited version of the Amendment, and were presumably considered on that basis. It is true that the panel focussed also on the modified version of the Amendment advocated by the Council, with the proposed change to the height limit and removal of the dwelling density. However, such an approach does not of itself demonstrate a failure to comply with ss 23 or 24.

Council's alleged failure to comply with sections 17, 18 & 19

1. Sections 17, 18 and 19 of the P&E Act set out the requirements for exhibition and notice about an amendment. Lend Lease contends that, by reason of its changes to Amendment C153 in its resolution of 13 August 153, the changed amendment was materially different to what had been previously exhibited and that the changed amendment should have been re-exhibited with a new explanatory report.
2. This ground fails as a consequence of my determination of the grounds under s 23.
3. Lend Lease had pursued this matter as a preliminary issue before the panel, arguing that the Council's changes had fundamentally altered the Amendment. The panel disagreed for reasons set out earlier, and did not require new or further exhibition or notice.
4. For reasons similarly set out earlier, I have determined that there was no changed amendment at that stage. Submissions in relation to the exhibited Amendment were all referred to a panel. Accordingly, given there was no new or changed amendment, there was no obligation arising under ss 17, 18 or 19 arising in relation to it, and thus no possible failure to comply. It follows that Lend Lease's ground alleging a failure by the Council to comply with ss 17, 18 and 19 must fail.

Council's alleged failure to comply with section 21

1. This ground also fails as a consequence of my determination of the grounds under s 23, and the ground under s 19.
2. Section 21(1) of the P&E Act sets out that any person may make a submission to a planning authority about an amendment of which notice has been given under s 19. Submissions were clearly made under s 21 in relation to the exhibited Amendment, and there is no allegation of a failure to comply with s 21 in relation to the exhibited Amendment C153.
3. Lend Lease contends that the Council failed to accord it (i.e. Lend Lease) or any other person an opportunity to make a submission to the Council about the changed amendment. Even if that were the case, that would be a failure to comply with ss 17, 18 and 19 (which I have already dealt with) as s 21(1) provides an opportunity to other persons to make a submission but imposes no direct obligation on the Council.
4. In any event, given I have determined that there was no changed amendment at this stage, and no obligation arising under s 19 for further notice to be given about any new or changed amendment, no opportunity arises for a submission under s 21. It follows that there has been to failure to comply.

Panel's alleged failure to accord procedural fairness

1. Pursuant to s 161(1)(b) of the P&E Act, a panel is bound by the rules of natural justice. These rules incorporate principles of procedural fairness. Lend Lease contended that the Amendment C153 panel had failed to accord procedural fairness to the parties through failing to ensure that all submitters were given proper notice of the changed amendment, including the revised 'track-changes' version of the DPO-2 and a revised Urban Design Framework Map and, in doing so, failed to give those submitters a reasonable opportunity to be heard about the changed amendment.
2. This ground fails at a number of levels.
3. First, as I have determined, there was no changed amendment.
4. Secondly, Lend Lease concedes that it received the relevant documents. It is not therefore materially affected by any failure by the Council to give those documents to other submitters. Lend Lease was given the opportunity at the panel hearing to be heard about both the exhibited and proposed versions of the Amendment, and took that opportunity.
5. Thirdly, the panel (in its letter of 17 September 2012) directed the Council to provide copies of the documents to all 'parties' to the hearing. Whilst this theoretically did not include all submitters, it did include all of those who had indicated that they wished to be heard in relation to their submissions, including the main 'Orrong Group' objectors.
6. Fourthly, parties such as the Orrong Group did receive the relevant documents, and it is evident from their written submissions to the panel and the panel report that they were given the opportunity at the panel hearing to be heard about both the exhibited and proposed versions of the Amendment, and took that opportunity.
7. Fifthly, by reason of paragraph 3 of the Council resolution of 13 August 2012, all submitters had been made aware of the Council decision - including therefore those who did not choose to become parties at the panel hearing, and with the Council decision including reference to the key proposed changes. No submitter has come forward, nor did Lend Lease adduce any evidence, to indicate that any particular submitter did not receive the relevant documents or was not aware of them or the changes proposed by the Council, or that any particular submitter was materially affected by any such failure.
8. It follows that Lend Lease's ground alleging a failure by the panel to accord procedural fairness fails, not least because of the lack of any sufficiently probative evidence to support the ground.

Council's alleged failure to accord procedural fairness

1. Lend Lease contends that the Council failed to accord procedural fairness to it through failing to give it an opportunity to make a submission on the changed amendment, and depriving the panel of the benefit of submissions that may have been made on the changed amendment. More particularly, Lend Lease contends that the Council represented to the panel and Lend Lease that it no longer intended to adopt the Amendment with the exhibited 17-metre height limit or 250-dwelling density restriction, and it presented its case to the panel and called expert evidence to that effect. Lend Lease claims that it was thus denied a reasonable opportunity to be heard on the Amendment.
2. This ground also fails at a number of levels.
3. First, this allegation was not tied to any failure to comply with a particular provision in the P&E Act. Indeed, Lend Lease provided no authority to support the proposition that a planning authority (as opposed to a panel) has an obligation to accord 'procedural fairness' in considering submissions, or in the amendment process generally. I do not need to finally decide this issue, but I agree with the Council that it is highly debateable whether such an obligation formally exists - particularly if it suggests that a planning authority is bound more broadly by principles of natural justice in an amendment process.
4. Secondly, as I have determined, there was no changed amendment at the time of the panel hearing.
5. Thirdly, Lend Lease had raised its concerns both to the Council and the panel about the process relating to the Council's proposed changes to the exhibited Amendment C153. It was aware by the commencement of the panel hearing about the Council's (and panel's) views on that issue. Lend Lease presented submissions to the panel about the proposed changes. Equally, Lend Lease was aware, or should have been aware, that other submitters before the panel were still pursuing submissions in relation to the exhibited Amendment and contrary to the proposed changes. Lend Lease was not denied the opportunity to be heard in relation to the Amendment as exhibited, or in relation to the proposed changes.
6. Fourthly, I accept that Lend Lease may well have made a decision - encouraged by the Council's conduct - to run its case before the panel in the belief that the Council was no longer supporting the exhibited 17-metre height limit or 250-dwelling density restriction. However, there is no evidence to suggest that this was not the Council's true and considered position on the Amendment at that time. The Council's case before the panel, and the expert evidence it called in support of a 24-metre height limit and no density restriction, was entirely consistent with its resolution of 13 August 2012. Lend Lease's underlying concerns really arise from the Council's subsequent and anomalous reversal of that position after the panel hearing, rather than through any failure by the Council to comply with the P&E Act at the time of the panel hearing.

Conclusions on alleged failures in consideration of submissions and panel processes

1. It follows that, although some of the Council's conduct in the pre-panel and panel phases of the Amendment was perhaps confusing in the way in which it dealt with the then proposed changes to the Amendment, I have not found any specific failure to comply with the relevant provisions of the P&E Act for that period by either the Council or the panel.

ALLEGATIONS RELATING TO ADOPTION OF AMENDMENT & FORWARDING TO MINISTER

Council's alleged failure to comply with section 29

1. Section 29(1) of the P&E Act provides as follows:
   1. Adoption of amendment

(1) After complying with Divisions 1 and 2 in respect of an amendment or any part of it, the planning authority may adopt the amendment or that part with or without changes.

1. The panel released its report on 20 December 2012. The panel noted, in relation to the form and content of the Amendment, that:

Having heard the submissions and evidence in the hearing, the panel is of the view that the changes supported by the Council post-exhibition are reasonable and do not transform the Amendment to the extent it should be abandoned or re-exhibited.

The reference to the changes supported by the Council was footnoted, as being 'Increase in height limit from 17m to 24m and removal of the maximum dwelling yield'.

1. The panel recommended a modified form of Amendment C153 that, amongst other things, removed the dwelling density restriction and removed any maximum height restriction except along Osment Street. The panel recommendation to remove the maximum height restriction obviously differed from the exhibited 17 metre height limit, or the 24 metres proposed by the Council at the panel hearing. The recommendation was based on a detailed analysis by the panel of how the other urban design elements and setbacks would operate to produce an appropriate planning outcome in the future development of a strategic site. The panel was concerned that a mandatory height limit might lead to a 'lowest common denominator' (and poorer) overall design outcome.
2. In an officer report prepared for the Council, the officer generally supported the panel recommendations (including removal of the dwelling density restriction) except in relation to height. The officer recommended that the Council endorse the 'balanced' position it had taken to the panel - i.e. the maximum 24 metre height limit, as that height limit provided certainty, followed extensive consultation, and was founded on the strategic work of Council's consultants.
3. The officer report and recommendation was included on the Council agenda for its meeting on 4 February 2013, together with relevant attachments. These included the panel's recommended Development Plan Overlay (DPO-2), marked with 'track changes' such as the insertion of the 24-metre height limit. There was no marked-up version showing the changes from the exhibited version of Amendment C153.
4. The item was deferred from the Council meeting on 4 February to the next meeting on 18 February 2013 with the minutes recording that this was '...to allow for consultation'.
5. A similar officer report and recommendation was included on the Council agenda for its meeting on 18 February 2013, again together with relevant attachments. Although not noted in the officer report, the attachment comprising the panel's recommended Development Plan Overlay (DPO-2) marked with 'track changes' had been altered slightly between Council meetings, but the modified version nonetheless retained the proposal for the maximum 24-metre height limit and no dwelling density restriction.
6. As the minutes of the meeting of 18 February 2013 reflect, the Council did not accept its officer recommendation, but instead resolved as follows:

1. Notes the release of the report of the Planning Panel to the public on Amendment C153 - 590 Orrong Road and 4 Osment Street, Armadale.
2. Advocate for mandatory height controls for 590 Orrong Road and 4 Osment Street, Armadale.
3. On considering the Independent Panel report, adopts Amendment C153 - 590 Orrong Road and 4 Osment Street, Armadale to the Stonnington Planning Scheme with changes including mandatory height controls and a maximum 50% site coverage (pursuant to Section 29(1) of the Planning and Environment Act 1987) generally as attached, with revisions including a mandatory maximum height of 17 metres (six storeys) across the site, and adding a maximum site yield of 250 dwellings, set-backs of 6m around the entire site.
4. Submits the adopted Amendment C153 - 590 Orrong Road and 4 Osment Street, Armadale to the Minister for Planning for approval, in accordance with Section 31(1) of the Planning and Environment Act 1987.
5. Advises all submitters of Council's decision in relation to proposed Amendment C153 - 590 Orrong Road and 4 Osment Street, Armadale.

1. It can be seen that, despite its resolution of 13 August 2012 supporting changes to the height limit and removal of the dwelling density restriction, and despite advocating that position at the panel with supporting expert evidence, the Council essentially sought to reverse this position on 18 February 2013. It has effectively re-instated the exhibited version of the Amendment C153 on these two key issues. Lend Lease is understandably very upset by that outcome.
2. Lend Lease alleges that the Council has not properly adopted Amendment C153 in accordance with s 29(1) of the P&E Act, having regard to the terms of the resolution of 18 February 2013. In particular, having regard to paragraph 3 of the resolution:
   • the resolution appears to distinguish between 'changes ... pursuant to s 29(1)' and 'revisions', and the status of the revisions is therefore unclear;
   • some adopted changes are not really changes, as they were already part of the exhibited Amendment. This applies both to purported 'changes' such as site coverage, and to purported 'revisions' such as the maximum dwelling yield;
   • the resolution purports to adopt the Amendment 'generally' as attached, with revisions 'including' those indicated, leaving it unclear what the version adopted by the Council is, and potentially allowing for other unidentified changes by the Council or a delegate;
   • the identified 'revisions' are unclear. The '17-metres (six storey)' is potentially ambiguous, as to whether either the 17 metres or six storeys or both apply as height restrictions. Lend Lease contends that a six-storey limit had not been indicated in any prior documents. The 6-metre setbacks are not specified as to whether they are to be mandatory or discretionary, and whether they apply to buildings or works or both; and
   • the resolution purports to adopt a part of the Amendment that the Council had previously abandoned, and purported to adopt an Amendment that it had earlier changed without giving notice or considering further submissions.

1. The last of Lend Lease's concerns can be readily dismissed. Given my finding that the Council did not change the Amendment or abandon part of it under s 23 of the P&E Act, and there was thus no failure to comply with Divisions 1 and 2 of Part 3 of the P&E Act in the pre-panel phase, the resolution of 18 February 2013 does not reflect or compound any such prior non-compliance.
2. Lend Lease's other concerns are, to varying degrees, more material.
3. Before me, the Council advanced the simple proposition that s 29(1) of the P&E Act allows it to adopt an amendment 'with or without changes'. Save for 'considering' the panel report under s 27, it is not bound by the panel recommendations. It is clearly not bound by the recommendation made by its officers. It is not even bound by its previously resolved views on the Amendment, or by any position it advocated at the panel hearing.
4. Alarming though that proposition may seem to some, I agree that a Council is 'at large' as to the changes it can make to an amendment at the time of adoption, provided they are broadly within the scope of the amendment. As will be seen, the requirements of s 31 of the P&E Act, and the requirement for Ministerial approval of the Amendment, provides some fetter on this in terms of the final version of any approved amendment incorporated into the planning scheme.
5. If the Council has, by its earlier resolution and its submissions and evidence at the panel hearing, misrepresented its position or engaged in misleading conduct, that may be capable of being redressed at the time of Ministerial approval of the Amendment, or it may possibly be actionable in some other forum. I do not however consider the Council's reversal of its position on the height limit or dwelling density restriction, of itself, to comprise a defect in procedure for the purposes of s 39 of the P&E Act. The height limit and dwelling density were clearly issues about which the Council could inform itself at the time of adoption, and make changes to the Amendment. It was perhaps somewhat sneaky and lacking in transparency, and contrary to the spirit of the amendment process, for it to reverse a previously resolved view upon which Lend Lease and the panel had relied, but that does not of itself demonstrate a failure to comply with s 29(1).
6. That said, the discretion that a Council is called upon to exercise under s 29 of the P&E Act is a very important one within the planning scheme amendment process. If a planning authority chooses to adopt an amendment 'with changes', it should do so clearly and unambiguously. It must be clear what is being changed, and what the actual changes are. That is not the case here.
7. Having agreed earlier with the Council that its resolution of 13 August 2012 should be interpreted primarily by reference to its own terms, the same should apply to its resolution of 18 February 2013. Again, however, given the resolution refers to something attached, that attachment (insofar as it can be identified) is relevant to the interpretation.
8. Here the Council has initially purported to adopt the Amendment 'with changes ... generally as attached'. The attachment is therefore the relevant version of the Amendment attached to the Council agenda and referred to in the officer report. This includes the panel's recommended Development Plan Overlay (DPO-2), marked with 'track changes', which was marked as 'Attachment 3' in the Council agenda papers. Indeed, the officer report states:

A revised version of DPO2 is included in Attachment 3 that includes the Panel's recommended version and changes outlined in this report (shown as tracked changes). It is recommended this version is generally adopted subject to the inclusion of a map.

1. However, on a proper interpretation of s 29(1) of the P&E Act, the 'changes' that a planning authority is empowered to make under that provision are changes to the exhibited form of the Amendment. A Council resolution adopting an amendment 'with changes' should be identifying the changes from what was exhibited, rather than changes to what the panel had recommended. It is ambiguous and confusing for the resolution to refer only to changes to what the panel had recommended as:
   • any changes to the Amendment recommended by the panel that are supported by the Council are not readily identified (and these will often comprise the primary or material changes to the exhibited form of amendment); and
   • any panel recommendations that are not supported by the Council (where the exhibited form of Amendment is to be maintained) are not 'changes' for the purposes of s 29.
2. This ambiguity and confusion is unfortunately what has happened with Amendment C153. Even more confusingly, those items that are referred to as the 'changes ... pursuant to s 29), such as a 50% site coverage and mandatory height controls, are not actually changes from what was exhibited.
3. I agree with Lend Lease that the status of the further 'revisions' made by the Council are also confusing and anomalous when considered in this context. Having regard to the specific revisions identified, they are not clearly changes to the exhibited Amendment. Some of them purport to reinstate what was in the exhibited Amendment and are, at best, changes to the officer's recommended changes to the panel's recommended changes - but not actual changes to the exhibited Amendment itself.
4. Although some of this might be explained as 'loose language' in a resolution hastily drafted in a Council meeting, I believe that greater certainty is required for a resolution purporting to adopt a significant and potentially controversial planning scheme amendment, in order to demonstrate that the Council was properly exercising its discretion under s 29. There may be circumstances where 'loose language' in a resolution can still be reasonably interpreted to give effect to a Council's underlying intent. In some cases, it will be sufficient for a Council to adopt a version of an Amendment where, by comparison with the exhibited version and by reference to an officer report, an attached version for adoption readily exposes the changes that have been made under s 29 without each wording change being separately identified. However, given the anomalous process I have outlined, I do not consider those circumstances sufficiently exist here, particularly given the further failure to comply with s 31 (dealt with below).
5. My view is bolstered by the reference to an adoption only 'generally' as attached, a reference to revisions in a non-exhaustive way (leaving it unclear as to whether there may be others included but not identified in the attachment or resolution), and by the lack of clarity in the proposed revisions themselves. I do not believe that these anomalies can be sufficiently overcome by reference to the version of the Development Plan Overlay (DPO-2) attached to the officer report, as this was based on the panel recommendations and was in any event being further modified by the Council.
6. Submitters and the Minister are all entitled to know exactly what form of the Amendment the Council is adopting, and what has changed since exhibition and notice. This is not clear in the present case.
7. It follows that I find that the Council has failed to comply with s 29(1) of the P&E Act in that it has purported to adopt Amendment C153 with changes, but it has failed to adequately identify the changes from the exhibited Amendment.

Council's alleged failure to comply with section 31

1. Section 31(1) of the P&E Act provides as follows:
   1. Planning authority to submit amendment to Minister

(1) A planning authority other than the Minister must submit an adopted amendment to the Minister together with the prescribed information.

1. Lend Lease raised two issues with this provision.
2. First, during the hearing before me, Lend Lease realised that the version of the Amendment adopted and forwarded to the Minister was different to the version that had appeared as an attachment to the Council agenda for the meeting on 4 February 2013. There were other changes beyond those set out in the subsequent Council resolution on 18 February 2013. The version forwarded to the Minister differed from the 4 February version in particular in that the shadow analysis proposed by reference to the equinox (in the version recommended by the panel) was altered to be a reference to the winter solstice. This is a material difference that could have significant impacts on the built form capable of being developed. Lend Lease thus believed that the Council had forwarded to the Minister an amendment that had been further changed after its adoption. If true, this would be a serious breach of s 31.
3. Following investigation by Council, an explanation was offered. Although not noted in the officer report, or advised to any party, Attachment 3 to the Council agenda for the deferred meeting on 18 February 2013 had been altered to make the change from the otherwise identical attachment to the Council agenda at the meeting two weeks earlier. Technically, the version of the panel's recommended Development Plan Overlay (DPO-2) marked with 'track changes' that was formally before the Council on 18 February 2013 (and thus the version referred to in its resolution) was the modified version containing the change to the shadow analysis. Moreover, although the panel had recommended the equinox for shadow analysis, the alteration by Council officers reinstated what had been originally exhibited. There was thus technically no 'change' to what had been exhibited on this issue, and no further change after adoption. The version forwarded to the Minister contained this same alteration.
4. I accept this explanation, which is confirmed by the version of the document still available on the Council's website for the 18 February 2013 meeting. There was thus no technical failure to comply with s 31 on this basis. However, whilst accepting the explanation, I do not condone Council's behaviour. With a deferred item between two meetings, it is reasonable for Lend Lease to have assumed that the Council would not make a small but material change, buried within one of many long documents about the Amendment, without advising an affected person about the change or referring to that change in the tabled report. The Council's conduct, particularly in the context of its other conduct in relation to the Amendment, appears overly sneaky and certainly lacks transparency.
5. The second issue raised by Lend Lease with s 31 is more material. As indicated, s 31 requires a Council to submit an adopted amendment to the Minister with the prescribed information. The 'prescribed information' is set out in Regulation 10 of the Planning and Environment Regulations 2005, with the relevant part providing as follows:
   1. Information to be submitted to the Minister under section 31

For the purposes of section 31 of the Act, the following is the prescribed information -

(e) if a panel is appointed under Part 8 of the Act -

(ii) the reasons why any panel recommendations were not adopted; and

(g) a description of and the reasons for any changes made to the amendment before adoption.

1. Lend Lease contends that the Council has failed to comply with Regulations 10(e)(ii) and (g), and has thus failed to comply with s 31 of the P&E Act.
2. The Council produced a copy of the material it had forwarded to the Minister, included as Tab 27 in the Tribunal Book. It used a standard form of application provided by the Department, which allows for some 'tick the box' responses.
3. In relation to the question: 'Have you provided reasons why any panel recommendations were not adopted?', the Council indicated 'YES' and ticked the box indicating the reasons were provided 'within attached officer report'. No additional material was provided, and no additional reasons were advanced. The attached officer report was the same officer report that was before the Council on 18 February 2013.
4. The Council attempted to argue before me that the officer report had dealt broadly with height controls, and had thus sufficiently complied with the requirement in Regulation 10(e)(ii). I disagree. Whilst the officer report had dealt broadly with the panel recommendation for no maximum height limit, it argued instead for the 24-metre height limit that the Council had itself advanced before the panel. The Council gives no reason for reinstatement of a 17-metre height limit.
5. Moreover, the officer report does not deal at all with any reason why the Council reinstated the dwelling density restriction, as the Council resolution did not adopt the panel and officer recommendation on this issue. The officer report also does not deal at all with the belated reinstatement of a winter solstice shadow analysis, rather than the panel's recommended reference to the equinox. The Council did not offer an explanation for these deficiencies. There may be others revealed by a closer analysis of the panel report and officer report.
6. In relation to the question: 'Have you provided a description of and reasons for any changes made to the amendment before adoption?', the Council also indicated 'YES' and ticked the box indicating the reasons were provided 'within attached officer report'. Again, no additional reasons were advanced.
7. Given the Council did not accept its officer recommendations, and given the confusing and anomalous manner in which the Council purported to make further revisions, the officer report cannot possibly be said to provide a set of reasons for the changes the Council made before adoption. Clearly, on its face, it does not do so.
8. In the context of the changes made to this Amendment, and the Council's reversal of the position it had previously resolved upon and advanced before the panel, the Minister is entitled to proper reasons under both Regulations 10(e)(ii) and (g).
9. I find that there has been a failure to comply with Regulations 10(e)(ii) and (g) of the Planning and Environment Regulations 2005, and thus a failure by the Council to comply with s 31 of the P&E Act through its failure to provide all of the prescribed information to the Minister.

Conclusions on alleged failures relating to adoption of the Amendment and forwarding to Minister

1. It follows from the above that there has been a failure to comply with ss 29 and 31 of the P&E Act, through a failure to properly identify the changes made at the time of adoption of the Amendment, compounded by a subsequent failure to provide all of the prescribed information to the Minister.

1. Section 39(4) and (5) of the P& E Act provide as follows:

39(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following -

(a) make any declaration that it considers appropriate;

(i) the planning authority must not adopt or approve the amendment or a specified part of the amendment; or

(ii) the Minister must not approve the amendment or a specified part of the amendment -

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

1. For the purposes of s 39(4)(a), having regard to my findings in these reasons, I have made relevant declarations, as set out in my formal orders.
2. For the purposes of s 39(4)(b), and as a general principle, where a defect in procedure is found to exist for the purposes s 39 of the P&E Act, that defect will not necessarily invalidate the whole Amendment process. Depending on the nature of the defect, it may be possible to remedy the defect by subsequent action (such as further notice or a further opportunity to be heard), or it may be possible to 'roll back' the process to the point where a failure to comply first occurred, and to re-continue the process from there.
3. Here, I have determined that there was no failure to comply in the initial exhibition and notice of Amendment C153, nor in the referral of submissions to a panel or the panel hearing. I do not consider it necessary or appropriate for those initial steps to be repeated. I consider this to be an instance where it is possible to roll back the process to the point of adoption of the Amendment, and to re-continue the process from there.
4. Sub-section 39(5) is clearly intended to prevent the Tribunal from reviewing the planning 'merits' of the Amendment, or itself changing the Amendment. It expressly removes two of the powers that the Tribunal may have otherwise had under s 51(2) of the VCAT Act. To the extent the balance of s 51(2) of the VCAT Act still applies, the Tribunal may affirm a relevant decision taken by a planning authority or panel (for example, where no material defect has been exposed), or set aside the decision and remit it for re-consideration by the decision maker. The clear intent of the Tribunal's limited jurisdiction is to have the Tribunal deal with the procedural defect, but not to interfere with the planning merits of the Amendment itself. That properly remains a matter for the Council and Minister.
5. Having regard to ss 39(4)(a) and (5) of the P&E Act and s 51(2) of the VCAT Act, it is appropriate to set aside the decision of the Council to adopt Amendment C153 and to remit the matter to the Council for a fresh decision. It is a matter for the Council as to whether it wishes to adopt the Amendment with a 17 metre height limit and 250 dwelling density restriction, or whether it now wishes to revisit those matters after reflecting on the issues and after having regard to what has since transpired. I express no view on the planning merits of Amendment C153. However, whatever the Council decides to do in adopting Amendment C153, it will need to demonstrably comply with s 29 of the P&E Act and clearly articulate any changes it is making from the exhibited version of the Amendment - whether these relate to height, dwelling density, or any other matter.
6. Moreover, once it adopts the Amendment, the Council will also need to demonstrably comply with s 31 of the P&E Act and provide proper planning-based reasons to the Minister for any changes it makes, or any panel recommendation it does not support. Again, it should deal with all such matters whether they relate to height, dwelling density, or any other matter. In the circumstances of this case, I consider it appropriate that Lend Lease be furnished with a copy of the information the Council forwards to the Minister under s 31 when the Amendment is ultimately re-submitted.
7. I am mindful that the Minister currently has before him for approval a version of Amendment C153 that follows a process that I have found to not comply with the P&E Act. As a consequence, and having regard to s 39(4)(b)(ii), it is appropriate that an order be made that the Minister not approve that version of the Amendment pending remedial action by the Council.
8. My formal orders make relevant directions to give effect to these outcomes.
9. Lend Lease sought a further opportunity to be heard, preferably by the panel, in relation to the 17 metre height limit and 250 dwelling density restriction if the Amendment is re-adopted by the Council in that form. Whilst I accept that Lend Lease has been affected by the Council's reversal of its position in relation to the Amendment from the Council's resolved position before the panel, I do not see much utility in that process. The panel has already expressed its general views on these matters, and the Council (at least to this point in time) has taken a different view to the panel, albeit without articulating its reasons for doing so.
10. Given the confusing and somewhat contradictory nature of the Council's actions to date in relation to Amendment C153, the Minister has the opportunity to take all of these matters into account at the time Amendment C153 is ultimately considered for approval. Pursuant to s 34 of the P&E Act, the Minister also has the power at that time to allow further submissions and to refer them to a panel. As I am not privy to what the Council may do when the Amendment comes before it again for adoption, nor the information the Council may subsequently provide to the Minister under s 31, I do not consider it appropriate to fetter any future exercise of procedural discretion by the Minister. Given Lend Lease will receive its own copy of the s 31 material in due course, it can make its own representations to the Minister on those matters if it wishes to do so.