• An application for a planning permit lodged before that date.
• An application for an amendment of a permit under section 72 of the Act, if the original permit application was lodged before that date.

1. In accordance with this, clause 55 of the scheme as in force immediately before the approval date of Amendment VC267, continues to apply to this application as the planning permit application was lodged before that date.
2. However, my interpretation of the transitional provisions at clause 32.08-7 regarding amendment VC267 is that they do not address the changes to the zone purpose or the schedules to the zone.
3. Furthermore, the transitional provisions at clause 32.08-16 of the GRZ3 do not apply to amendment VC267, and the GRZ3 schedule does not include transitional provisions.
4. In this context, my interpretation of the Scheme is that while the clause 55 provisions as they existed immediately before Amendment VC267 apply, the GRZ3 zone purpose and the GRZ3 schedule as they currently exist in the Scheme (post Amendment VC267) apply to this application.

Is s 28 of the Interpretation of Legislation Act 1984 (Vic) relevant?

1. By orders dated 2 and 9 July 2025, the parties were required to provide further submissions addressing the relevance if any of s 28 of the Interpretation of Legislation Act 1984 (Vic) ('IL Act').
2. For completeness, s 28 of the IL Act provides:

Provisions as to effect of repeal etc. of subordinate instruments

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

(a) is repealed; or

(b) expires, lapses or otherwise ceases to have effect -

any subordinate instrument or provision of a subordinate instrument that had been repealed by the first-mentioned subordinate instrument or provision shall not, unless the contrary intention expressly appears, be construed as having been revived in consequence of the repeal, expiry, lapsing or ceasing to have effect of the first-mentioned subordinate instrument or provision.

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

(a) is repealed or amended; or

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that subordinate instrument or provision or anything duly done or suffered under that subordinate instrument or provision;

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

(f) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that subordinate instrument or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that subordinate instrument or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

(2A) Without limiting subsection (2), if a provision of a subordinate instrument that is of a savings or transitional nature (whether or not the subordinate instrument describes it as such) or that validates anything that is or may otherwise be invalid or that requires a reference in a subordinate instrument or Act or other instrument or document to, or that relates to, an entity or a class of entity to be construed as a reference to another entity or class of entity -

(a) is repealed; or

(b) expires, lapses or otherwise ceases to have effect -

the repeal, expiry, lapsing or ceasing to have effect of that provision does not, unless the contrary intention expressly appears, affect the operation of the savings or transitional provision or end the validating effect of the provision or affect the construction of that reference, as the case requires.

(3) References in subsections (1), (2) and (2A) to the repeal of a subordinate instrument or of a provision of a subordinate instrument shall be construed as including references to -

(a) a repeal effected by implication; and

(b) a repeal effected by abrogating or limiting the effect of the subordinate instrument or provision or excluding the application of the subordinate instrument or provision to any person, subject-matter or circumstance.

1. Council's written submissions submit that ss 28(2)(d) and (e) of the IL Act apply to this determination. However, at the hearing council accepted that s 28(2)(d) of the IL Act is not relevant.
2. Turning to s 28(2)(e) of the IL Act council highlights the following:

Where a subordinate instrument or a provision of a subordinate instrument -

(a) is ... amended; or

[...]

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision **shall not, unless the contrary intention expressly appears - **

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

[...]

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that subordinate instrument or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

1. Council says the VC267 transitional provision protects the obligation that was incurred by the permit application before the approval of VC267 and that includes the assessment of the proposed development having regard to the requirements of cl 55 as specified in the schedule to the GRZ.
2. Further, in respect of s 28(2A) of the IL Act, council says that the 'repeal' of the schedule to the GRZ by the approval of VC276 to the scheme does not alter the operation of the VC267 transitional provision.
3. Council relies on the Explanatory report to VC276 (extracted earlier) which provides inter alia:

The amendment includes consequential changes to numbering and requirements, removing less permissible requirements in zone schedules and removing extraneous standards.

1. Council says that VC276 made changes to the schedules of zones to ensure permit applications lodged after the approval date of VC267 could be considered under the post VC267 version of cl 55.
2. Relying on ss 28(2A) and 3 of the IL Act, council says the VC267 transitional provision at cl 32.08-7 is the 'transitional provision' and it includes those parts of the previous scheme that it enlivened including the pre VC267 cl 55 assessment and the pre VC276 sch 3 variations to cl 55.
3. Further, council says there is no contrary intention or expression within the VC267 transitional provision which would have the effect of overriding it and the 'repeal' of sch 3 by VC276 does not change the operation of the transitional provision. Relying on Waterfront Place Pty Ltd v Minister for Planning and Environment[4] (Waterfront Place), council contends that in considering the meaning of 'contrary intention' that:
   1. In our view, a court should be very slow to find an unstated contrary intention in circumstances such as these, where the general rule said to have been displaced is a rule of practical commonsense, reflecting the critical difference between weekdays and holidays, and is one which is relied on by those needing to comply with time limits (and their advisers). The threshold requirement for contrary intention - whether it be 'reasonable certainty' or 'necessary implication' - should be stringently applied.*

1. Council submits that any inconsistency between the preVC267 and post VC276 versions of cl55 and sch 3 should not be construed as being a 'contrary intention' such that the outcome would be the current (that is, post VC276) sch 3 in the GRZ applies to the proposed development.
2. Council says that s 28(2A) of the IL Act clarifies that the subsequent repeal of sch 3 by VC276 is of no consequence because the scheme contained a transitional provision that kept the schedule existing prior to the approval of VC267 'live' for applications lodged before its approval date.
3. Council relies on the second reading speech and the Interpretation of Legislation Amendment Bill ('IL Bill') that introduced s 28(2A) of the IL Act. The Explanatory report for the IL Bill states:[5]

inserts a new section 14(2A) and 28(2A) into the ILA. Section 14 provides for the effect of a repeal of an Act or where it otherwise ceases to have effect. Clause 6 adds to this section to clarify that where an Act contains a provision that -

• is of a saving or transitional nature; or
• validates anything that would otherwise be invalid; or
• requires a reference to an entity or a class of entity in an Act or subordinate instrument or other instrument to be construed as a reference to another entity or class of entities -

the repeal of the provision, or where the provision otherwise ceases to operate, does not affect the operation of that provision.

Section 28 provides for the effect of a repeal of a subordinate instrument or where it otherwise ceases to have effect. New section 28(2A) clarifies section 28 in a manner consistent with the amendments made to section 14.

1. The Second Reading Speech for the IL Bill provides:

Clause 6 amends sections 14 and 28 of the Act. Section 14 provides for the effect of the repeal of an act or where it otherwise ceases to operate. For example, section 14 includes a provision that the repeal of an act does not revive the operation of any act that had been repealed by the first-mentioned act. Section 28 similarly provides for the effect of the repeal of subordinate legislation or where it otherwise ceases to operate.

Clause 6 amends sections 14 and 28 to clarify that where an act or subordinate instrument contains a provision that:

• is of a saving or transitional nature; or
• validates anything that would otherwise be invalid; or
• requires a reference to an entity or a class of entity in an act or subordinate instrument or other instrument to be construed as a reference to another entity or class of entity -

the repeal of the provision, or where the provision otherwise ceases to operate, does not affect the operation of that provision.

It is common for provisions of this nature to be repealed after they have taken effect as part of the ongoing program of statute law revision. The repeal is done on the basis that it will not affect the operation of the provision. The amendment makes the effect of the repeal of these types of provisions absolutely clear.

1. Council adds that its submissions are coherent and give effect to the scheme as a whole avoiding unintended consequences.
2. In response to paragraph 2 of my order dated 9 July 2025, council confirms that it does not agree with the applicant's submissions regarding s 28(2A) of the IL Act.

1. In summary, the applicant says that:
   1. The present case does not fall within the ambit of s 28 of the IL Act; and
   2. The application should be determined on the principle enunciated in Ungar v City of Malvern[6] (Ungar) which is that a decision maker is obliged to give effect to the scheme as it exists at the time the decision is made.
2. The applicant submits that ss 28(2A) and (3) of the IL Act are not relevant to the interpretation of the VC267 transitional provision at cl 32.08-7 because it was inserted into the scheme by VC267 rather than as a result of being repealed, or expired, lapsed or otherwise ceasing to have effect.
3. The applicant further says that given VC276 did not contain any transitional provision, s 28(2A) of the IL Act does not apply because it VC276 is not of a 'transitional nature'.
4. The applicant confirmed that it did not want to make any further submissions.[7]

1. In considering the question for determination, I approach its consideration as follows:
   1. The effect of the VC267 transitional provision at cl 32.08-7 of the scheme before the approval of VC276.
   2. The effect of VC276 on my determination above.

Effect of the VC267 transitional provision at cl 32.08-7 of the scheme before the approval of VC276

1. At the hearing the parties agreed that but for the approval of VC267 the proposed development would be assessed having regard to the requirements of cl 55 including those specified in sch 3 to the GRZ as it existed before the approval of VC267.
2. The parties agree the application for the planning permit was lodged before the approval date of VC267 and thus, the VC267 transitional provision applies.
3. The requirement to obtain a permit for the proposed development arises because of cl 32.08-7 of the scheme which provides:

• ...
• Construct two or more dwellings on a lot.

A development must meet the requirements of Clause 55. This does not apply to a ......

1. It is worth observing that cl 55 of the scheme is not a permit trigger, rather, it is a tool for the assessment of a proposed development.
2. Clause 32.08-8 of the scheme is the provision that allows the schedule to a zone to specify the requirements of particular standards of cl 55. As it presently exists in the scheme it states:

Requirements of Clause 54 and Clause 55

A schedule to this zone may specify the requirements of:

• Standards A3, A5, A6, A10, A11, A17 and A20 of Clause 54 of this scheme.
• Standards B2-1, B2-5, B2-8 and B3-5 of Clause 55 of this scheme.

If a requirement is not specified in a schedule to this zone, the requirement set out in the relevant standard of Clause 54 or Clause 55 applies.

1. I note the pre VC267 version of cl 32.08-8 was in similar terms with the only difference being the description of the standards in cl 55.
2. Clause 55 of the scheme before the approval of VC267 provided inter alia:

• Must meet all of the objectives of this clause that apply to the application.
• Should meet all of the standards of this clause that apply to the application.

...

For all of the provisions of Clause 55 other than Clause 55.07 (Apartment developments):

• If a zone or a schedule to a zone specifies a requirement of a standard different from a requirement set out in this clause, the requirement in the zone or a schedule to the zone applies.

1. There is no debate amongst the parties regarding the principles of statutory construction. The applicant relies upon the decision of the High Court of Australia ('HCA') in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[8] (Alcan) at paragraph 47:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(citations omitted)

1. Council relies on the summary regarding the principles of statutory construction contained in Melbourne CC.
2. The principes of statutory construction were succinctly summarised in Mason v Head, Transport for Victoria[9] (Mason) where the Supreme Court of Victoria, Court of Appeal ('COA') summarised the relevant principles through the leading cases. At paragraphs 24 to 27 the COA stated:

1. The relevant principles of statutory construction are well established. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

2. In SZTAL v Minister for Immigration and Border Protection, the High Court (Kiefel CJ, Nettle and Gordon JJ) again emphasised the importance of text, context and purpose:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

3. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ also gave guidance with respect to the proper construction of the statutory text, explaining that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute and emphasising that the meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. Their Honours continued:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

1. Section 35 of the Interpretation of Legislation Act 1984 further expressly provides that in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

2. Adopting the summary provided in Mason the principles of statutory construction are:
   • the task of statutory construction must begin with the text itself;
   • historical considerations and extrinsic materials cannot be used to displace the clear meaning of the text;
   • the meaning of the text may require some consideration of the context, including the general purpose and policy of a provision, particularly the mischief it is seeking to remedy;
   • considerations of context and purpose recognise that another meaning may be suggested from its ordinary meaning, and if so, the ordinary meaning must be rejected; and
   • the primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
3. Giving effect to these principles of statutory interpretation, I disagree with the submission of the applicant that cl 55 as it existed before the approval of VC267 that is, without the specifications in the sch 3 to the GRZ apply in this proceeding.

1. Whilst it is true that the VC267 transitional provision at cl 32.08-7 does not include the reference to 'the variations specified in a zone or schedule to a zone', that is not the end of the statutory construction task. I must ask what is meant by the entirety of the text of the VC267 transitional provision? For ease, I now extract it below:

Clause 55 of this planning scheme, as in force immediately before the approval date of Amendment VC267, continues to apply to:

• An application for a planning permit lodged before that date.
• An application for an amendment of a permit under section 72 of the Act, if the original permit application was lodged before that date.

1. This requires me to understand the following:
   1. what comprises clauses 55 of this planning scheme;
   2. what is meant by 'as in force immediately before'; and
   3. what does 'continues to apply' mean.

What comprises clauses 55 of this planning scheme?

1. Clause 55 is contained in the particular provisions within the scheme which apply to specified matters. And, cl 71.05 of the scheme provides that:

The requirements of particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this planning scheme.

1. As I noted earlier, cl 32.08-7 provides that [a] development must meet the requirements of Clause 55.
2. Further, it is the zone and, in this case, cl 32.08-8 that specifies the requirements of cl 55 must be met for certain developments noting that [i]f a requirement is not specified in a schedule to this zone, the requirements set out in the relevant standard of .... Clause 55 applies.
3. Clause 55 as it existed before the approval of VC267 reinforced cl 32.08-8 by requiring the following:

• If a zone or a schedule to a zone specifies a requirement of a standard different from a requirement set out in this clause, the requirement in the zone or a schedule to the zone applies.

1. Having regard to the architecture of the zone and noting that it is cls 32.08-7 and 32.08-8 that give rise to an assessment of the proposal and whether it meets the requirements of cl 55 that one really understands what is meant by 'Clause 55' in the VC267 transitional provision.
2. Clause 55 of any scheme is a particular provision that provides an assessment tool but the requirements of cl 55 to be applied may be specified in a schedule to a zone.
3. I note the requirements of cl 55 before the approval of VC276 were:

• Must meet all of the objectives of this clause that apply to the application.
• Should meet all of the standards of this clause that apply to the application.

If a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.

Where standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 is met the decision guidelines for that standard do not apply to the application.

For all of the provisions of Clause 55 other than Clause 55.07 (Apartment developments):

• If a zone or a schedule to a zone specifies a requirement of a standard different from a requirement set out in this clause, the requirement in the zone or a schedule to the zone applies.
• ...

1. The requirements of cl 55 are contained in the standards which this particular provision acknowledges can be specified in the schedule to a zone. The absence of specification of a requirement of the standards in cl 55 means the relevant requirement set out in the standard in cl 55 applies.
2. Having regard to the above, it is clear that when referring to the phrase '[C]lause 55 of this planning scheme', this includes all the requirements of cl 55 wherever they are specified in a schedule to a zone in the particular provision..

What is meant by 'as in force immediately before'?

1. There is no dispute amongst the parties as to the meaning of the phrase 'as in force immediately before'. However, for completeness I note that the meaning of 'force' is:[10]

Force

noun 1....

12. operation: a law now in force.

1. The meaning of 'in force' is to be 'in operation'. That raises a consideration of what cl 55 was 'in force' or 'in operation' immediately before the approval VC267.
2. The parties agreed that but for the approval of VC267 the application for permit would have been assessed against the requirements of the standards contained in sch 3 to the GRZ. This is in addition to any other requirements in cl 55 that are not otherwise specified in sch 3 to the GRZ.
3. Having regard to my analysis, the above paragraph contains the complete answer to what version of cl 55 was in force immediately before the approval of VC267.

1. The word 'continues' is defined as:[11]

-verb (i) 1. ...

2. to go on after suspension or interruption.

3. to last or endure.

4. to remain in a place; abide; stay.

5. to remain in a particular state or capacity.

-verb (t) 6. ...

10. to cause to last or endure; maintain or retain, as in a position.

11. to carry over, postpone, or adjourn; keep pending, as a legal proceeding.

1. Having regard to the meaning of 'continues', something must have existed or been in place prior to an event, suspension or interruption. The event or interruption in this case is the approval of VC267. The requirements of cl 55 that existed, or were in place before the approval of VC267 are those specified in sch 3 to the GRZ as well as other requirements in cl 55 that were not otherwise specified in sch 3 to the GRZ.

1. Having regard to the text of the VC267 transitional provision, I find that the reference to '[C]lause 55 of this planning scheme' means the requirements of cl 55 specified in sch 3 to the GRZ as well as other requirements in cl 55 that were not otherwise specified in sch 3 to the GRZ.
2. The reference to the 'variations specified in a zone or schedule to a zone' or 'variations' generally and as used colloquially in planning parlance is unhelpful and distracts from the task of interpreting the text of the VC267 transitional provision.
3. It follows that I do not agree with the decision in Roccazzella. However, it is important to acknowledge that in Roccazzella, it appears that VCAT did not have the benefit of any written submissions on this complex issue. Further, the application in Roccazzella was categorised as a 'short case' where decisions are usually delivered at the end of the hearing. VCAT delivered a timely and efficient decision on the material before it in that proceeding.

1. The applicant says that its interpretation supports the purpose of the GRZ which was amended by VC267. However, to ascertain whether the purpose of the VC267 transitional provision is consistent with its text, I first look to the Explanatory report for VC267.
2. There are two references in that report to the transitional provision. The first appears under the heading 'What the amendment does' and the second appears under the subheading 'Zone'. However, neither reference provides any explanation or justification for the inclusion of the VC267 transitional provision.
3. Transitional provisions in legislation and subordinate instruments such as delegated legislation are used to establish a transition between the existing framework and the new framework. Generally, it is understood that a transitional provision operates to (amongst other things):
   • modify the operation or effect of a change or an amendment that has been introduced either for a defined period or subject to some qualification or fact being established; and
   • override various presumptions in law.
4. Further, such transitional provisions may preserve an existing opportunity, liability or right.
5. In this proceeding the purpose of the VC267 transitional provision is to preserve the framework that is the scheme for the assessment of the proposed development. Absent, an expressly stated justification, I am left to infer the justification from the purpose of this transitional provision.
6. To that end, if the purpose of the VC267 transitional provision is to preserve the framework for the consideration of the proposed development, I infer the justification is to ensure procedural fairness and certainty for all persons involved in that process.
7. As part of the amendments contained in VC267 one of the purposes of the GRZ was amended as follows;

1. The applicant says that its interpretation of the effect of the VC267 transitional provision supports the amended purpose of the GRZ. However, the alternate interpretation also supports the purpose of the GRZ as introduced by VC267.
2. Lastly, the Explanatory reports for VC267 and 276 provide respectively:
   • Removes the ability to specify local variations in clause 55 standards for landscaping, permeability, side and rear setbacks, and walls on boundaries. A consequential amendment will be made remove the ability to specify local variations in relevant zone schedules in all planning schemes.

• Amend the clause 55 requirements in all residential zone schedules' schedule section 'Requirements of Clause 54 and Clause 55' in 80 planning schemes by:
  • ...
  • removing variations to clause 55 standards that are less permissible than the new standards
  • rewording more permissible local variations to clause 55 standards to align with the new standard.

1. The applicant contends the requirements of cl 55 without the requirements specified in the schedule to the zone applied to the assessment of the proposed development. However, the extracts of the Explanatory reports above make it clear that VC276 removes the ability to specify the requirements in a schedule and to vary the requirements of the standards of cl 55 that are less permissible than the new standards. If the applicant was correct, VC276 would not have any work to do because the schedule to the zone would not apply.
2. Having regard to that, the purpose of the VC267 transitional provision as set out above is consistent with its text.

1. The VC267 transitional provision is contained within the GRZ and specifically under cl 32.08-7 within the list of other transitional provisions. Its context within the GRZ and specifically in cl 32.07-8 is logical because a development must meet the requirements of Clause 55 and the decision maker is directed to consider a framework, that is, '[C]lause 55 of this scheme...'.
2. Nothing about the context surrounding the VC267 transitional provision is inconsistent with or derogates from the conclusion with respect to its text.
3. Further, I note that the VC267 transitional provision is contained under the heading 'transitional provisions' in cl 32.08-7 of the scheme. There are several transitional provisions located under this heading. None has been repealed or amended. This supports the view that the transitional provisions have work to do, and their operation is governed by the facts and circumstances of each case.

1. Schedule 3 of the GRZ as it existed immediately before the approval of VC267 to the scheme applies to the consideration of the proposed development.

1. For convenience, I now set out s 28(2A) and (3) of the IL Act as it is central to my findings on the effect of VC276:

(2A) Without limiting subsection (2), if a provision of a subordinate instrument that is of a savings or transitional nature (whether or not the subordinate instrument describes it as such) or that validates anything that is or may otherwise be invalid or that requires a reference in a subordinate instrument or Act or other instrument or document to, or that relates to, an entity or a class of entity to be construed as a reference to another entity or class of entity -

(a) is repealed; or

(b) expires, lapses or otherwise ceases to have effect -

the repeal, expiry, lapsing or ceasing to have effect of that provision does not, unless the contrary intention expressly appears, affect the operation of the savings or transitional provision or end the validating effect of the provision or affect the construction of that reference, as the case requires.

(3) References in subsections (1), (2) and (2A) to the repeal of a subordinate instrument or of a provision of a subordinate instrument shall be construed as including references to -

(a) a repeal effected by implication; and

(b) a repeal effected by abrogating or limiting the effect of the subordinate instrument or provision or excluding the application of the subordinate instrument or provision to any person, subject-matter or circumstance.*

(* my emphasis)

1. I now set out each of the elements highlighted above and then deal with each in turn below:
   • Provision of a subordinate instrument;
   • Is repealed;
   • Or otherwise cases to have effect; and
   • Unless the contrary intention expressly appears.

1. There is no debate amongst the parties that the scheme is a subordinate instrument. Further, the VC267 transitional provision at cl 32.08-7 is a provision of the subordinate instrument.

Is repealed or otherwise ceases to have effect

1. VC276 of the scheme did not include any transitional provision. Further, VC276 only made amendments to the schedule to the GRZ (as relevant to this proceeding) by removing any requirements of cl 55 that were previously specified in the schedule. However, VC267 contained a transitional provision which all parties agree applies to the application.
2. The effect of the approval of VC276 could be argued to have ceased the operation of the transitional provision in cl 32.08-7 of the scheme because the requirements of cl 55 of the scheme were specified in the schedule to the zone and the approval of VC276 ceased the operation of sch 3 to the GRZ as it existed immediately prior to its approval.
3. Whilst the applicant does not put its case in this manner, its submissions on 27 June 2025 conclude 'the current version of the GRZ3 (i.e. post Amendment VC276) in the Planning Scheme applies to this application. That conclusion means the approval of VC276 has the effect of ceasing the operation of the VC267 transitional provision at cl 32.08-7 regardless of which version of cl 55 of the scheme applied.

Unless the contrary intention expressly appears

1. VC276 does not include any express 'contrary intention'. It might be argued the failure to include a transitional provision in VC276 is itself indicative of a 'contrary intention'. However, this is not supported because the phrase immediately after 'contrary intention' is 'expressly appears'. This clearly means that there must be an express intention rather than such an intention being implied.
2. Having regard to the decision in Waterfront Place, I cannot discern any reason from the text of the VC267 transitional provision, VC267 or VC276 or from their purpose that leads to a conclusion that VC276 provides a 'contrary intention expressly' to defeat the operation of s 28(2A) of the IL Act.
3. I am fortified in my view when I consider the Explanatory Memorandum and Second Reading Speech for the IL Bill (extracted earlier) and the Explanatory report to VC276. Further, the continued existence of other transitional provisions in cl 32.08-7 of the scheme supports my conclusion.
4. Thus, I conclude that s 28(2A) of the IL Act operates to preserve the function of the VC267 transitional provision.
5. It follows from my analysis above, that I find that the amendments to sch 3 to the GRZ made by the approval of VC276 do not change the assessment tool for this proposal. It was post-approval of VC267 and remains after the approval of VC276, Schedule 3 of the GRZ as it existed immediately before the approval of VC267 to the scheme.

1. It follows that the answer to the question of law is:

Schedule 3 to the General Residential Zone as it existed in the Monash Planning Scheme immediately prior to the approval of Amendment VC267 to the Monash Planning Scheme applies to the application for permit, the subject of the decision under review.

[1] (Includes Summary) (Red Dot) [2015] VCAT 370.

[3] [2025] VCAT 451.

[4] [2019] VSCA 156 [12].

[5] See council submission dated 11 July 2025 [21].

[6] [1979] VicRp 25; [1979] VR 259.

[7] See VCAT order dated 9 July 2025 paragraph 2.

[8] [2009] HCA 41; (2009) 239 CLR 27 at [47].

[9] [2021] VSCA 19.

[10] Macquarie Dictionary, online as at 11 July 2025.