1. The Arden-Macaulay Structure Plan area is the subject of Amendment C190 to the Melbourne Planning Scheme. Amendment C190 was first exhibited in 2012. Its gestation has been protracted due to the East West Link project, which resulted in consideration of the amendment being delayed for a considerable time. It was finally subject to a panel hearing and panel report in 2015. The panel recommended some changes to the exhibited amendment.[2] Council officers recommended that council adopt the amendment with changes in accordance with the panel's recommendations. The Future Melbourne Committee disagreed with some of the panel's recommendations and recommended that council adopt the amendment with different changes.
2. Melbourne City Council, in its role as planning authority, adopted the amendment but departed from both the panel recommendations and the version of the amendment endorsed by the Future Melbourne Committee with respect to the area, which includes the subject land, known as Area 8 Shiel Street interface. The version adopted by the council had never previously been proposed, exhibited or otherwise raised.
3. Details of the handling of Amendment C190 by the council are set out in the applicant's further amended Statement of Grounds dated 22 February 2017, which I have included in their entirety in Appendix A.
4. This proceeding has been initiated by the applicant because it is concerned about the impact that the new Shiel Street control will have upon the development potential of its land. It alleges that there have been defects in procedure on the part of the council as planning authority in its handling of Amendment C190.
5. The applicant purchased the land on 11 March 2016 and became the registered proprietor on 14 June 2016. It purchased the land on the understanding that the planning controls for Shiel Street pursuant to Amendment C190 would be the controls recommended by the panel. In September 2016, the applicant made an application to Melbourne City Council for a planning permit for construction of a multi storey residential building on the land. The council failed to determine this application within the prescribed time and an application for review was lodged with the Tribunal under section 79 of the Planning and Environment Act 1987 (application P2555/2016). This proceeding has not yet been determined.[3]
6. The form of control adopted by the council and submitted to the Minister for approval with respect to Shiel Street would significantly affect the scale and form of a building on the subject land and reduce the development potential compared to the control recommended by the panel.
7. Fundamentally, the applicant wants an opportunity to make submissions about the version of controls in Amendment C190 relating to Shiel Street and to have its submission and the controls considered by an independent panel.
8. The applicant proposed this course of action in a letter to the Minister for Planning dated 6 October 2016[4], which requested the Minister under sections 33 and 34 of the Planning and Environment Act 1987 to:
   1. direct that the City of Melbourne give notice of the new Control to affected persons, including all landowners within Area 8;
   2. allow those affected persons to make submissions as to the merits of the new Control;
   3. refer those submission to an independent Panel for its assessment; and
   4. consider the Panel's recommendations before deciding whether or not to approve the Amendment in a form that includes the New Control.

I note that section 33(2) provides that any direction you make under this section may specify the manner and form in which the notice is to be given. In this regard, we note that it would be possible to "sever" that part of the Amendment that applies to Area 8 from the balance of the Amendment, so that the balance of the Amendment is not unduly delayed by the need to address the New Provision.

1. This proposal by the applicant would have provided the Minister with a pragmatic course of action that would have allowed the bulk of Amendment C190 to be approved whilst providing an opportunity to reconsider the specific merits of the proposed controls in respect of the limited Shiel Street area, which includes the subject land.
2. Action by the Minister pursuant to his powers under sections 33 and 34 of the Planning and Environment Act 1987 still remains an option open to the Minister whereby the merits of the proposed controls could be independently assessed and could provide the natural justice that the applicant seeks in the form of an opportunity by the applicant and other affected landowners to be heard. It is one of the options included in the range of alternative orders for relief and directions proposed by the applicant.

1. The applicant seeks the following declarations and orders.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 29 of the Planning and Environment Act 1987. 2. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 23 of the Planning and Environment Act 1987.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Panel, failed to comply with s 24 of the Planning and Environment Act 1987.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 31(1) of the Planning and Environment Act 1987 in that it has failed to provide the prescribed information to the Minister - in particular the information required under Regulations 9(e) and (g) of the Planning and Environment Regulations 2015. 2. A declaration pursuant to s 39(4)(a) of the Act that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme failed to comply with section 31(1) of the Act in that it failed to submit the adopted amendment to the Minister together with the prescribed information, to the Minister within 10 business days of the date the amendment was adopted in accordance with the requirements of Clause 4(7) of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987. 3. A declaration that pursuant to s 39(4)(a) of the Act that the adopted Amendment cannot now be lawfully submitted to the Minister for approval because it was not submitted to the Minister together with the prescribed information within 10 business days of the date the amendment was adopted in accordance with the requirements of Clause 4(7) of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987. 4. Further, and/or in the alternative, pursuant to s 39(4)(b) of the Planning and Environment Act 1987 a direction that the decision of the Melbourne City Council purporting to adopt the Shiel Street interface controls of Area 8 of the Design and Development Overlay (Schedule 63) of Amendment C190 to the Melbourne Planning Scheme be set aside, and the matter remitted to the Council to reconsider having regard to the orders and reasons for decision in this proceeding. 5. Further, and/or in the alternative, pursuant to s 39(4)(b) of the Planning and Environment Act 1987, the Tribunal directs that: * the Melbourne City Council must not adopt Amendment C190 to the Melbourne Planning Scheme unless and until it has complied with Divisions 1 and 2 of the Planning and Environment Act 1987 with regard to the amendment it intends to adopt, including a clear articulation of any changes to the Amendment, as compared with the exhibited version of the Amendment; * the Melbourne City Council must not adopt Amendment C190 to the Melbourne Planning Scheme unless and until it has received and considered a submission from the Applicant as to why the Council should accept the recommendations of the Panel with respect to the built form controls for Shiel Street. * the Minister for Planning must not approve Amendment C190 to the Melbourne Planning Scheme unless and until the following specified action is taken by the Melbourne City Council: 1. following any adoption of Amendment C190 by Melbourne City Council, the Council must provide the information to the Minister prescribed under s 31 of the Planning and Environment Act 1987, including full and proper reasons why any panel recommendations are not adopted, and a description of and reasons for any changes made to the Amendment before adoption. 2. at the same time as it forwards the prescribed information under s 31 of the Planning and Environment Act 1987 to the Minister, the Council must forward a copy of that information to the applicant in this proceeding.

1. The background facts to this proceeding are complicated and further information has come to light about the actions of the council since the proceeding was initially commenced on 24 November 2016. Several amendments to the application have been made since then with the latest version of the statement of grounds and relief/orders sought dated 22 February 2017.
2. An issue was raised by the council as to whether the application had been lodged not later than one month after the applicant became aware of the failure being relied upon in the application as required by section 39(1) of the Act. I am satisfied that the application was lodged within time. However, for the avoidance of doubt, I am prepared to extend time for lodging the application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998.
3. To date, the Minister has not approved Amendment C190. His conduct and processing of the amendment have not been called into question, although one of the declarations sought is that the Minister for Planning must not approve Amendment C190 unless and until specified action is taken by the Minister.[5]
4. A letter from the Department of Environment, Land, Water and Planning has advised that the Minister does not intend to submit a statement of grounds or take an active role in the proceeding.

1. The background facts are set out in Appendix A.[6] This version of the facts is not contested by the council, although it takes issue with some of the assertions; for example, whether Figure 10 of the post exhibition version and Figure 10 of the council endorsed post exhibition version was materially different to the version of Figure 10 that had been included in the exhibited amendment.
2. I note that it is not open to the Tribunal to make any finding or decision about the merits of the amendment because of the constraints imposed by section 39(5), which provides as follows:

(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. The Tribunal's powers under section 39 are confined to procedural matters. Therefore, it is not my role as part of this proceeding to make findings about the substance of these different versions of the amendment. However, in order to better appreciate the nature of the differences, I requested the parties to provide a diagrammatic representation of the different versions of the control. Various iterations were provided subsequent to the hearing. The various versions are included in Appendices B, C and D. It should be noted that both the panel recommended version and the council adopted version were expressed in words rather than by reference to a figure as were the structure plan version, exhibited version and post exhibition version.
2. The council provided additional information about what transpired at the council meeting on 30 August 2016 and prior. This information related to notice given to submitters to the panel of the Future Melbourne Committee hearing on 2 August 2016 and the opportunity to make submissions to the committee. One of the submitters, Ms Kaye Oddie, made a submission opposing the panel's recommendation for the Shiel Street area. Details were also provided about the council debate at the meeting of 30 August 2016 so far as they effect the Shiel Street area. The justification letter sent to the Minister on 8 February 2017 contained a link to this debate, which purports to provide the reasons why the council decided to make the changes to the Shiel Street area controls that were not in accordance with the panel's recommendations.
3. So far as what has occurred is concerned, there is no great dispute between the parties. Rather, it is the implications of what has occurred that is where the parties fundamentally differ. The hearing lasted three days with detailed submissions, responses and further submissions to responses. It is not my intention to repeat each and every contention. I have focussed on what I consider to be the key contentions and the key issues.
4. Essentially, the applicant contends that when the council resolved to change the amendment back in 2013 before referring submissions to the panel, it failed to comply with section 23 of the Act. Section 23 provides:
   1. Decisions about submissions

(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. The applicant says that the options set out in Section 23(1) are alternatives and are mutually exclusive. A planning authority cannot both change the amendment and refer submissions to a panel. There was much debate about the effect of what the council did. However, it was submitted by the council that even if it was not open to the council to change the amendment as it purported to do, the applicant was not materially affected or substantially affected by this alleged defect because it occurred well prior to the applicant's purchase of the land in 2016. The applicant did not own the land at this time; it never made a submission to the amendment, either in its exhibited or post exhibited form; it was not heard by the panel; and it made no submission to the council before the council's decision to adopt the amendment with the changes on 30 August 2016.
2. Further, the council submits that none of the other alleged defects materially or substantially affect the applicant. In any event, the council disputes that there are any defects or, at least, if there are they can be remedied.
3. In my view, it is appropriate to step back from the minutia of these claims and counter claims and to look more broadly at the procedures that a planning authority is required to follow when preparing, exhibiting and adopting any amendment.
4. In considering these procedures, it is important to bear in mind that whilst a council has a certain statutory obligations as a planning authority under the Planning and Environment Act 1987, when making decisions councillors are also acting politically.[7] For example, whilst a planning authority must consider the panel's report before deciding whether or not to adopt an amendment,[8] there is no requirement for the planning authority to adopt all the recommendations of the panel report. It is free to exercise its own political judgement, although if it does not adopt any recommendations of a panel, it must provide reasons why they were not adopted to the Minister when an adopted amendment is submitted to the Minister under section 31(1) of the Act.[9]

WHAT PROCEDURES MUST BE FOLLOWED WITH RESPECT TO AN AMENDMENT?

1. In Freeman v Knox CC[10] Justice Morris said:

[36] In my opinion, when a proceeding is brought pursuant to section 39 of the Act, the first task is to identify whether there has been a failure to comply with the relevant parts of the Act and the nature of that failure. Having identified a failure to comply, the second task is to consider whether an applicant has been substantially or materially affected by that failure.

1. As the first step therefore, it is appropriate to identify the procedure for exhibiting, considering and adopting an amendment.
2. Part 3 of the Act provides for the amendment of planning schemes. Section 19 provides for the giving of notice by a planning authority of its preparation of an amendment to a planning scheme. Section 20 enables the Minister to exempt a planning authority from that requirement. Under section 21 any person may make a submission to the planning authority about an amendment of which notice has been given under section 19. Section 22 requires the planning authority to consider all such submissions. Section 23(1) provides that, after considering a submission which requests a change to the proposed amendment to the planning scheme, the planning authority must either change the amendment in the manner requested, or refer the submission to a panel appointed under Part 8 to the Act, or abandon the amendment or part of the amendment. Section 23(2) provides that a planning authority may refer to the panel submissions which do not require a change to the proposed amendment.
3. Section 24 of the Act provides that the panel must consider all submissions referred to it and give a reasonable opportunity to be heard to any person who has made a submission referred to it. Section 25 provides that the panel must report its findings to the planning authority. Under section 26, the planning authority is required to make the panel's report available to the public. Section 27(1) provides the planning authority must consider the panel's report before deciding whether or not to adopt the amendment.
4. Section 29 provides that a planning authority may adopt the amendment, with or without changes. In such an event, section 31(1) provides that the planning authority must submit an adopted amendment to the Minister together with prescribed information. Section 34(1) provides that the Minister may allow any person affected by a change to an amendment to make a submission to the Minister on the change. Under section 35(1) the Minister may approve an amendment with or without changes, and subject to any conditions the Minister wishes to impose, or refuse to approve the amendment or part of the amendment. If the Minister approves of an amendment, the Minister must, within 10 days, cause notice of every such amendment to be laid before each House of Parliament[11]. Such an amendment may be revoked, either wholly or in part, by a resolution passed by either House of Parliament within 10 days after the notice of approval of the amendment is laid before that House[12].
5. The applicant contends the council has failed to comply with sections 23, 24, 25, 27, 29, 31 and Ministerial Direction No.15.

1. There is no suggestion that the council failed to give proper notice of its preparation of Amendment C190; to properly undertake its exhibition; or to consider all submissions to the amendment as it was first exhibited. However, it was in response to its obligations under section 23(1), specifically with respect to whether it was open to the council to purport to change the amendment in the way it did and then refer all the submissions to a panel, that the applicant contends there has been a defect in procedure on the part of the council.
2. Section 23(1) requires the planning authority, after considering the submission which requests a change to the amendment, to change the amendment in the manner requested; or refer the submission to a panel; or abandon the amendment or part of the amendment. These options have been held to be mutually exclusive alternatives. For example, in Winky Pop No.1[13] Kaye J said:

Where a planning authority, considering an amendment to a planning scheme, receives a number of submissions requesting any change to an amendment, it is mandatory for the authority to refer the submission to a panel.

1. In Lend Lease[14] Deputy President Dwyer said:

[20] 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.

1. Deputy President Dwyer then considered the possibility of a submission requesting several changes to an amendment resulting in a decision by the planning authority to abandon part of the amendment in response to one requested change, but referring another requested change to a panel. He also noted that a planning authority could not use the section 23 process to make a unilateral change to an amendment that has not been submitted by a submitter. He discussed the more complicated scenario where a planning authority receives a number of competing submissions that request conflicting or mutually exclusive changes to an amendment. He considered 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, but to refer other submissions requesting conflicting changes to a panel. Later, he notes that section 23(1) 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.[15]
2. I am not persuaded that section 23(1) enables a planning authority to make the type of extensive changes to the exhibited amendment as the council purported to do on 4 June 2013 by way of its change resolution and then refer all submissions to the panel.
3. I acknowledge that section 23(1)(c) would enable the planning authority to split the amendment and decide to abandon part of the amendment. Section 29 also contemplates that an amendment may be split and different parts of it might be dealt with in different ways. Section 29 therefore implies that when the planning authority considers submissions pursuant to section 23(1), it would be open to the planning authority to decide to change part of the amendment in the manner requested by a submission, assuming there were no contrary submissions, and to adopt that part of the amendment with the changes pursuant to section 29. Equally, if there are parts of an amendment about which no submissions are made, it would also be open to the planning authority to adopt that part of the amendment without changes pursuant to section 29.
4. However, when the provisions of Division 2 and 3 are read holistically, there is a clear intention that if an amendment is not to be abandoned or changed in a manner about which there are no conflicting submissions, then all submissions for or against an amendment (i.e. seeking change or not requiring a change) must be referred to a panel.
5. By referring submissions to a panel, which must then provide an opportunity to submitters and others to be heard[16] and requiring the panel to prepare a report that must be considered before the planning authority decides whether or not to adopt the amendment, the Act is seeking to provide submitters with natural justice in terms of being heard by an independent panel, but without constraining the planning authority's ultimate decision about the amendment.
6. The scheme established by the Act is in response to the objective of the planning framework set out in section 4(2)(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making.
7. I note that there is nothing in section 23 or Divisions 1, 2 or 3 that enable a planning authority in a situation where it refers submissions to a panel pursuant to section 23(1)(b) to change the amendment before the panel has conducted its hearing[17] and reported its findings to the planning authority[18]. In these circumstances, it is only after the planning authority has considered the panel's report that it may decide whether or not to adopt the amendment[19]. A planning authority may adopt the amendment as a whole with or without changes, or part of an amendment with or without changes[20], or it may decide to abandon the amendment or part of the amendment[21].
8. My conclusion is that when the council purported to change the amendment in 2013, it had no power to do so. The amendment remained the amendment as it was exhibited under Division 1. An exhibited amendment can only be changed if it is adopted with changes pursuant to section 29.
9. If the council had wished to change the status of the amendment before submissions were considered by the panel, it could have abandoned Amendment C190 and re exhibited a new amendment in accordance with the changes it purported to make in 2013. It did not follow this course.
10. The only place in which changes to an amendment are referred to are in the context of section 29 and sections 33 and 34, which provides that the Minister may direct the planning authority to give notice of any changes to the amendment which the planning authority has made under section 29 or the Minister proposes to make. Section 34 then provides for the Minister to allow any person affected by a change to the amendment to make a submission on the change and may refer any submissions to a panel.
11. Therefore, I find that although council purported to make changes to the amendment in 2013, and then in 2015 undertook a second exhibition of the post exhibition version of the amendment and referred additional submissions received in response to this second exhibition to the panel, these actions had no statutory effect in terms of changing the amendment. To the extent that council thought it had changed the amendment, it was in error.
12. Notwithstanding this, I do not consider that this invalidated any actions the council was obliged to take under section 23(1). The council nevertheless referred all the submissions it had received to the panel after considering them and therefore complied with section 23(1)(b).
13. I note that the planning authority's obligation is to refer to submissions to the panel: it does not refer the amendment to the panel. Equally, the panel's obligation is to consider all submissions referred to it and give a reasonable opportunity to be heard to nominated persons. The panel is entitled to make any recommendation it sees fit[22] and may take into account any matter it thinks relevant in making its report and recommendations[23]. I consider this would enable a panel to consider any proposed changes that the planning authority wished to make to the amendment and would encompass consideration of the post exhibition version of the amendment and the additional submissions received in response to its exhibition.
14. Therefore, I do not find that there has been any failure on the part of the council as planning authority to comply with section 23. I consider the council's actions in purporting to change the amendment back in 2013 to be procedurally ill-conceived, although not fatal to the procedural integrity of the amendment process.

1. It follows from my findings about the status of the purported changes to the amendment and the post exhibition version of the amendment, which was considered by the panel, that I do not support the applicant's contentions that the panel failed to comply with sections 24 and 25 of the Act.
2. The applicant contends that the panel undertook the wrong task. It had been appointed to consider submissions made about the amendment, but it did not, in fact, do so. This is because it did not consider submissions or evidence about the amendment. Rather, it considered submissions and evidence about a different amendment, being the post exhibition version of the amendment. The findings and recommendations it made in its report are not findings made regarding the amendment: they are findings and recommendations made with regard to a different amendment. The panel proceeded on the basis of the erroneous assumption that the exhibited amendment had been lawfully changed by the council.
3. I disagree with these contentions. I have previously noted that the Act does not require the panel to consider the amendment, but to consider submissions to the amendment. The submissions that were referred to the panel were submissions made to the exhibited version of the amendment. The panel considered these submissions. The panel also considered submissions and heard from various persons regarding the merits or otherwise of the post exhibition version of the amendment. It was open to the panel to do this considering its very broad powers generally to inform itself on any matter in any way it thinks fit and without notice to any person who has made a submission[24] and, in particular, its power to take into account any relevant matter.[25]
4. I consider that having regard to the panel's report, the complexity of its recommendations and the detailed changes made to the proposed controls, there is no basis for concluding that the panel did not fully appreciate the submissions it was considering, both from affected land owners and from the council itself, or that it was confused about the precise nature of the changes to the existing planning scheme it was recommending.
5. I therefore conclude that there has been no defect of procedure on the part of the panel in undertaking its tasks pursuant to sections 24 and 25 of the Act.
6. On this basis, it is not necessary for me to make any finding about how the applicant is or could have been substantially or materially affected by what transpired in 2013. Nevertheless, I consider it would have been difficult to conclude that the applicant was affected by something that occurred three years before it acquired the subject land. On this point, I disagree with the applicant's contention that it would be sufficient to establish that because the applicant owns land directly affected by the amendment, it is substantially and materially affected by the amendment itself. I agree with the comments made by Justice Morris in Freeman v Knox CC that having identified if there has been a failure to comply with the relevant parts of the Act and the nature of that failure, the applicant must have been substantially or materially affected by that failure. It is not just any failure at any time to comply with the relevant parts of the Act that will entitle relief under section 39. Rather, the applicant must be affected by the relevant defect in procedure which is identified.

1. The applicant contends that a planning authority acting under sections 27 or 29 of the Act is obliged to do so in a way that is procedurally fair. This is so notwithstanding there is no express requirement to do so under the Act because, as Kaye J found in Winky Pop No.1, there is no "necessary intendment" in the Act to exclude that obligation.[26]
2. The applicant says that what is required in any particular case in order to afford procedural fairness is that the matter must be determined having regard to the particular circumstances in each case. In the present case, it contends that the council has not exercised procedural fairness because:
   • The council actively invited the submission of, and then considered, additional information after the panel hearing. It has, in effect, created a de-facto hearing process. Having done so, it was then obliged to make it a fair process.
   • Affected persons were entitled to proceed on the basis that this de-facto hearing process was the only opportunity available to present new material to the council regarding the form of the adopted amendment, and that the council would not be receiving submissions, or undertaking debate in secret.
   • The evidence is that the council received additional, undisclosed information about the Shiel Street controls after the 2 August 2016 Future Melbourne Committee meeting, and prior to the 30 August 2016 council meeting. It also appears that officers met with one or more councillors, and with "Spring Street" between those dates to discuss, inter alia, the Shiel Street controls.[27]
   • The result of this "behind the scenes" process was that Councillor Leppert abandoned the position he publically announced (in emphatic terms) on 2 August 2016, which was that he would accept all the recommendations of management and the Panel, including those made with regard to the Shiel Street controls[28].
   • Whatever it was that went on "behind the scenes" between 2 August 2016 and 30 August 2016 was not "fair". It was secretive, lacking in transparency and selective. It was also a failure to comply with the requirements of section 28 of the Planning and Environment Act 1987.
3. Whilst I agree with the applicant that, from its perspective, the sudden change in the council's attitude with respect to the panel's recommendations regarding the Shiel Street controls does not seem fair, I am not prepared to find that the council was required to provide a right to a hearing to those persons affected by the changes it proposed to the Shiel Street controls by its resolution of 30 August 2016.
4. As I have previously noted, there is no obligation in the Act for a planning authority to agree with a panel's recommendation. Nor is there any requirement to provide anyone affected by a departure from the panel's recommendations with a hearing. On the other hand, this does not prevent councillors acting in their political role from hearing from people at a council meeting or outside the meeting environment.
5. Whilst in Winky Pop No.1, Kaye J held that in considering a panel's report under section 27(1) the council was obliged to comply with the requirements of natural justice, he also held that the dictates of natural justice did not require that the council provide to any particular party a right to be heard in respect of the consideration by the council of a panel report under section 27 of the Act. Rather, the requirement of natural justice in that case was that the council was required to act free of pre-judgement in respect of the issue which was before it.[29]
6. In Winky Pop No. 1, the proceeding was for certiorari in the Supreme Court. It was not an application under section 39 of the Victorian Civil and Administrative Tribunal Act 1998 before the Tribunal. The facts in Winky Pop No. 1 involved a question of whether a councillor who owned land affected by an amendment and who had made a submission and been heard by the panel should have voted on the panel report and whether or not to adopt the amendment. The Court held that he should not have done so. It made a declaration that the resolution of the council was made in breach of the requirement of natural justice and quashed the decision.
7. In light of the express finding of the Court that the council was not required to provide any particular party with a right to be heard in respect of the consideration by the council of a panel report under section 27 of the Act, I am not prepared to find that the council was required to hear from the applicant (or other affected land owners) in this particular case.
8. In Coastal Estates Deputy President Dwyer reached a similar conclusion.[30]
9. As a result, I find that there was no obligation on the council as a planning authority to afford a person, including the applicant, an opportunity to be heard when it considered the panel report under section 27 or made a decision under section 29. I therefore find that there has been no procedural defect in respect of either of these provisions.

Failure to comply with Ministerial Direction 15

1. Section 31(1) provides that a planning authority must submit an adopted amendment to the Minister together with the prescribed information. The prescribed information is set out in Regulation 9 of the Planning and Environment Act Regulations 2015. I will deal with the issue of compliance with this regulation later. At this point, the issue is whether what was purported to be done was done within time.
2. There is no time prescribed in the Act or Regulations by which an adopted amendment must be submitted to the Minister. However, Ministerial Direction No.15 - The Planning Scheme Amendment Process dated 18 October 2013 (Ministerial Direction) sets out times for completing steps in the planning scheme amendment process. Clause 4(7) of the Ministerial Direction provides as follows:

(7) A planning authority must submit an adopted amendment under section 31 of the Act, together with the prescribed information, within 10 business days of the date the amendment was adopted.

1. This would mean that the council should have submitted the adopted amendment to the Minister, together with the prescribed information, by 13 September 2016. It did not do so until 27 September 2016 (or possibly later).
2. The applicant contends that the legal consequence of the failure by the council to comply with what is a mandatory time limit set by clause 4(7) is that the council can no longer lawfully submit the amendment to the Minister for approval.
3. I reject this contention for the following reasons.
4. The Ministerial Direction is made pursuant to section 12(2)(a) of the Planning and Environment Act 1987. This provides that in preparing a planning scheme or amendment, a planning authority must have regard to the Minister's directions.
5. The Ministerial Direction is drafted in mandatory terms. It is clearly intended to apply to the Minister for Planning, the Secretary to the Department, panels appointed under Part 8 of the Planning and Environment Act 1987, and all planning authorities in Victoria.[31] However, the Act only requires that a planning authority must have regard to the Minister's direction. As Justice Morris J in Freeman v Knox CC[32] said:

[38] In the circumstances, it is unnecessary to deal with the applicant's contentions that the planning authority has failed to comply with Ministerial Directions 11 and 9. However I would note that these contentions face difficulties. First, there would appear to be no obligation contained in Divisions 1, 2 or 3 of Part 3 of the Act or in Part 8 of the Act in relation to ministerial directions: yet it is only these parts of the Act that may be subject to a proceeding under section 39. Second, the relevant obligation of a planning authority when preparing an amendment is to "have regard to" ministerial directions.[[33]] This does not mean that the Minister's directions must be slavishly followed as if they were mandatory statutory requirements.[[34]]

1. The provisions of section 12(2)(a) requiring a planning authority to have regard to the Minister's directions must be contrasted with section 7(5) and (6), which require that a planning authority must comply with the direction of the Minister under subsection (5).
2. I therefore find that clause 4(7) of the Ministerial Direction does not impose a time limit which operates by law as a pre-condition to the lawful submission under section 31(1) by a planning authority of an adopted amendment to the Minister. It is open to the council as planning authority to submit the adopted amendment with the prescribed information at a later time than set out in clause 4(7) without affecting the validity of the amendment or the power of the Minister to approve it.

Section 31 - Failure to submit prescribed information

1. The prescribed information, which is to be submitted together with an adopted amendment pursuant to section 31(1) of the Act, is identified by Regulation 9 of the Planning and Environment Regulations 2015 as follows:
   1. Information to be submitted to the Minister under section 31(1)

For the purposes of section 31(1) of the Act, the following is the prescribed information -

(b) a list of the notices given under section 19(1) of the Act;

(c) a summary of action taken under section 19(1B) (if applicable), 19(2), 19(2A), 19(3) and 19(7) of the Act;

(d) copies of any submissions or reports received on the amendment;

(e) the reasons why any recommendations of a panel appointed under Part 8 of the Act were not adopted;

(f) a report on submissions not referred to a panel;

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

1. The applicant submits that neither sub paragraphs (e) (the reasons why any recommendations of a panel appointed under Part 8 of the Act were not adopted) and (g) (a description of and the reasons for any changes made to the amendment before adoption) have not been complied with.
2. The applicant also submits that information given to the Minister in dribs and drabs more than four months after the adopted amendment was submitted cannot, as a matter of fact or law, be regarded as having been submitted "together with" the adopted amendment as required by section 31(1).
3. Further information was submitted to the Department of Environment, Land, Water and Planning (DELWP) over time in response to several requests for further information made by DELWP.
4. I reject the applicant's contention that the words "together with" in section 31(1) means that all the prescribed information must be provided at exactly the same point of time as the adopted amendment is submitted to the Minister.
5. In my view, it is self-evident from the nature of the prescribed information that it is information required in order to inform the Minister's decision whether to direct the planning authority to give more notice of the amendment pursuant to section 32; whether to direct the planning authority to give notice of any changes to the amendment pursuant to section 33 and to allow more submissions pursuant to section 34; and ultimately whether to approve the amendment with or without changes or to refuse to approve the amendment pursuant to section 35.
6. Having regard to the complexity of many amendments and the numbers of submissions often made, it would defeat the purpose of requiring this prescribed information if it could not be provided by way of an iterative process if so required. The Department needs the ability to require additional information from time to time in order to facilitate consideration of the amendment and for the Minister to make a final decision having regard to all relevant matters.
7. In my view, the words "together with" mean that all of this information must be provided before the Minister makes a decision about the amendment. It is a complete package of information that must be provided with the adopted amendment before it can be finalised. It does not mean that it must all be provided at the same time so long as it is ultimately provided before the Minister makes a decision.
8. Nevertheless, despite the further information that has been submitted in response to the Department's queries, there is one item of prescribed information that I am not satisfied has been provided to the Minister, namely item (e) - the reasons why any recommendations of a panel appointed under Part 8 of the Act were not adopted.
9. What happened was that the documents that were submitted to the Minister together with the adopted amendment included a management report dated 2 August 2016, which contained reasons as to why the recommendations of the panel, including the built form controls in Shiel Street, should be adopted by the council. However, the built form controls for the Shiel Street area adopted by the council were materially different to those recommended by the panel. This is evident from a comparison of the diagrams in Appendices B, C and D. Thus, the material submitted to the Minister with the adopted amendment on this point was wrong.
10. Item (e) of Regulation 9 requires the reasons why the recommendation of the panel relating to this area, at least, were not adopted. The council seeks to rely on the justification letter dated 8 February 2017 provided to the Minister from Martin Cutter, Acting Chief Executive Officer, as now providing the reasons required by item (e).
11. I am not satisfied that this letter provides the type of reasons required by item (e). It explains what has occurred and the nature of the differences between the different forms of the controls for Shiel Street as exhibited, as recommended by the panel and as adopted by the council. However, in terms of reasons for the council's departure from the panel's recommendations, the letter refers to the discussion about Shiel Street recorded at the council meeting on 30 August 2016. I do not consider this to be adequate. Having regard to the transcript of this discussion, I cannot discern the planning reasons for the change having regard to what the panel said about the issue.
12. This is what the panel said:[35]

We accept the basic principle that new development fronting existing established residential areas should provide a frontage that relates to the existing development.

The exhibited control the control proposes a built form envelope at an angle of about 20 degrees for a 20 metre wide street and lower if the street is wider. It means that the fourth floor would be setback about 7 metres from the frontage. We have considered the applicability of the control to the various streets where it is applied. It is an onerous control for an area where redevelopment is sought.

We agree with Mr Sheppard that setback and architectural treatment could achieve the desired built form objectives.

We think a requirement to set back development above the street wall by a set amount, coupled with a requirement that these upper levels be visually recessive would strike a good balance between maintaining the valued characteristics of the area without placing arbitrary restrictions on the new development. We think a setback for upper floors of 10 metres would ensure development met the objectives of the clause.

1. In my view, simply providing a link to an audio recording of a council debate (as was done in the justification letter) means that the Minister is required to infer what the council's reasons are from departing from this view expressed by the panel. In my view, the Minister should not have to infer reasons. What is required by Regulation 9(e) is an unequivocal statement of the council's response to the panel's recommendations on this item and reasons for departing from them, whether those reasons be planning related or political. A link to an audio recording of a debate is not adequate in terms of providing such reasons.
2. I therefore find there has been a failure to comply with section 31(1) in terms that the council acting as planning authority has failed to provide all the prescribed information to the Minister with the adopted amendment, in particular, information complying with regulation 9(e) of the Planning and Environment Regulations 2015.
3. Having identified this defect in procedure, I must now consider whether the applicant is substantially or materially affected by this failure.
4. I find that the applicant has been so affected. I find that there is a significant difference in development potential between the panel recommended version of the Shiel Street controls and the council adopted version. I consider that the failure to provide this information to the Minister is likely to affect the Minister's ability to properly assess whether this change to the amendment and departure from the panel's recommendations should be approved. It is also likely to affect the Minister's ability to decide whether, pursuant to section 33 of the Act, he should give notice of this change to the amendment which the planning authority has made under section 29; and whether, pursuant to section 34, he should allow any person affected by the change to make a submission and obtain a panel report before making a final decisions about this aspect of the amendment.

1. The defect in procedure that I have identified concerns a discrete part of Amendment C190. In my view, it is able to be dealt with as a separate part of the amendment, which would enable the rest of the amendment to be considered and approved by the Minister with or without changes. I consider that the Minister could approve the bulk of Amendment C190 minus the Shiel Street control pursuant to section 35(2). The Minister may approve the part of the amendment affecting the Shiel Street area later as a further part pursuant to section 35(3).
2. With respect to the part of the amendment which deals with the Shiel Street area, I consider that pursuant to section 33 of the Act the Minister should direct the council as planning authority to give notice of the change to the amendment relating to this area which the planning authority has made under section 29. I consider that the Minister should allow any person affected by this change to the amendment to make a submission to the Minister on the change and the Minister should refer any submissions to a panel appointed under Part 8 pursuant to section 34. I consider that the other parts of section 34 should also be followed.
3. I do not support the applicant's suggestion that I should remit the council's decision to adopt Amendment C190 to the council for further consideration. I do not consider this would be appropriate and I am not sure that I would have power to make such an order. However, I do not need to determine this point now as I consider the course of action I propose offers more appropriate and targeted relief. It specifically addresses the defect to the part of the amendment which affects the applicant, rather than calling the whole amendment into question.
4. I consider that the actions I propose will provide the relief sought by the applicant in terms of having the planning merits of the council's proposed change in respect of the Shiel Street area controls considered by an independent panel and will provide the applicant and other affected land owners with an opportunity to be heard. In my view, this utilises processes available under the Act and satisfies the objective of the planning framework set out in section 4(2)(h) for appropriate public participation in decision-making for amending planning schemes. I also consider that this course of action will provide the Minister with a better planning basis for deciding whether or not to approve this part of Amendment C190 with or without changes.
5. Finally, I consider that given the long gestation of Amendment C190, it is time to provide some certainty about the strategic planning for this important urban renewal of the Arden-Macaulay area. Hiving off the small Shiel Street area from the whole area and dealing with it separately as a separate part of the amendment will not undermine the strategic planning for the rest of the Arden-Macaulay area affected by Amendment C190.
6. I therefore propose to make the following declarations.
   1. Pursuant to section 39(4)(a) of the Planning and Environment Act 1987, I declare that Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with section 31(1) of the Planning and Environment Act 1987 in that it has failed to provide the prescribed information to the Minister, in particular the information required under Regulation 9(e) of the Planning and Environment Regulations 2015.
   2. Pursuant to section 39(4)(b) of the Planning and Environment Act 1987, I direct that the Minister must not approve that part of Amendment C190 to the Melbourne Planning Scheme so far as it relates to the Shiel Street interface controls of Area 8 of the Design and Development Overlay (Schedule 63) with or without changes until the Minister takes the following actions:
      • The Minister directs Melbourne City Council as the planning authority to give notice of the change to this part of Amendment C190 which it has made under section 29 of the Act in accordance with section 33 of the Act.
      • The Minister takes action to allow persons to make a submission to the Minister on the change; to refer the submissions to a panel; for the panel to consider the submissions and give an opportunity to persons making submissions to be heard; and for the panel to report its findings to the Minister setting out its recommendations on the change in accordance with section 34 of the Act.
7. In light of my findings, I do not consider that the other declarations or relief sought by the applicant are appropriate.

**_Applicant's Further Amended Statement of Grounds

1. Shiel FCP Pty Ltd ("the Applicant") is the registered proprietor of the land described in certificates of title volume 8266 folio 279 and volume 10336 Fol 497 which is known as 3 and 5-15 Shiel Street North Melbourne ("subject land").
2. The subject land is currently located within the Mixed Use Zone and is subject to a Design and Development Overlay (Schedule 66) and an Environmental Audit Overlay.
3. The subject land is located within the municipality of the Melbourne City Council ("Council").
4. Council is the planning authority for Amendment C190 (Arden Macaulay) to the Melbourne Planning Scheme ("the Amendment").
5. The Amendment was exhibited between the period 1 November to 14 December 2012[36] ("first exhibition") although was put on hold due to the impact of the East West Link project ("East West Link").
6. The Council received 177 (or 180) submissions in response to the first exhibition.
7. On 4 June 2013, the Council's Future Melbourne Committee ("FMC") resolved to:
   1. make various changes to the exhibited Amendment ("Change Resolution"); and
   2. request the Minister to appoint an independent Panel to consider submissions to the Amendment.
8. The purported changes included changes to the built form controls in the exhibited Amendment that applied to development that fronts onto Shiel Street ("Shiel Street Controls").
9. The Council produced a version of the Amendment that included the changes purportedly made by the Change Resolution. This became known as the "Post Exhibition Version".
10. The Council referred all the submissions it had received with regard to the Amendment to a planning panel appointed by the Minister (Panel"). The panel hearings were originally to be held on 6 June 2013; however, the substantive panel hearings were deferred due largely to the East West Link.
11. Following cancellation of the East West Link the Amendment went through a further exhibition period from 4 May to 5 June 2015 ("second exhibition").[37] The documents that were exhibited in the second exhibition comprised the Post Exhibition Version of the Amendment, not the exhibited Amendment.
12. The planning authority received a further 29 submissions after the second exhibition. Once again, all those submissions were referred to the Panel for its consideration.
13. The panel hearing was reconvened, and the Panel heard submissions on the Amendment between 8 July 2015 to 31 July 2015.
14. In considering the submissions, the Panel proceeded on the basis that the Amendment had been changed by the Change Resolution, and that consequently the Amendment was now in the form as set out in the "Post Exhibition Version".
15. The Post Exhibition Version of the Amendment proposed the following key planning controls for the subject land:

(a) a new Design and Development Overlay (schedule 60) placing the subject land in Area 11;

(b) a mandatory maximum street edge height of 10.5 metres (to be effected through proposed Design and Development Overlay Schedule 60);

(c) a preferred maximum building height of 30m with discretion to increase to a mandatory maximum of 30% above the preferred 30m height, provided certain things could be demonstrated (to be effected through proposed Design and Development Overlay Schedule 60); and

(d) discretionary above podium setbacks to Shiel Street (to be effected through proposed Design and Development Overlay Schedule 60 and in particular, figure 10 ).

1. Figure 10 as it appeared in the Post Exhibition Version of the Amendment was materially different to the version of Figure 10 that had been included in the exhibited Amendment. Consequently, the upper level setbacks that were proposed in the Post Exhibition Version of the Amendment were materially different to the upper level setbacks proposed in the exhibited Amendment.
2. The Panel recommended version of the Design and Development Overlay (Schedule 60) became Schedule 63, and amalgamated Area 11 into Area 8.[38]
3. In respect of the key planning controls for the subject land, the Panel made the following recommendations:

(a) to support a mandatory maximum street edge height, expressed as 3 storeys;[39]

(b) to not support above podium street setbacks based on an angled line of sight calculation, and to introduce a preferred setback of 10m for development above the podium that should be visually recessive;[40]

(c) to introduce a preferred building height of 9 storeys and a mandatory absolute maximum height of 12 storeys;[41] and

(d) to provide guidance on to the exercise of discretion when considering a building over the preferred maximum height up to the absolute maximum.[42]

Future Melbourne Committee Meeting - 2 August 2016

1. In a report dated 2 August 2016 ("August Report"), Council Officers recommended, inter alia that the FMC, at its meeting of 2 August 2016, resolve to recommend that Council adopt the Amendment, and more specifically the Design and Development Overlay (Schedule 63) controls for area 8, and for development that fronts onto Shiel Street, should be in accordance with the Panel's recommendations[43]. The August Report included reasons why these Panel recommendations should be accepted by Council.
2. At its meeting of 2 August 2016 a motion was carried[44]:
   1. That the Future Melbourne Committee:

1.1. Endorses Planning Scheme Amendment C190 as shown in Attachment 7 and requests management to finalise a proposal to adopt the amendment for Council's consideration.

1.2 Considers that some recommendations of the Planning Panel report into C190 would fundamentally compromise key elements of the Arden Macaulay Structure Plan, particularly in relation to:

1.2.1 The zoning of land along Moonee Ponds Creek which, if agreed by the Minister for Planning without further action, would severely

1.2.2 The replacement of predictable built form controls in Areas 6 and 7 with a much more discretionary system (a proposal which property owners and submitters have not been allowed to comment on) which, if agreed by the Minister for Planning, would bring about an entirely different neighbourhood character and community infrastructure needs to that envisaged by the Structure Plan.

1.3 Considers also that the impact of major State Government transport projects on the Arden Macaulay precinct requires the Council and State to collaborate closely on the best possible planning outcome in this area of strategic importance.

1.4 In light of the state significance of the Arden Macaulay renewal area, requests management to escalate the issues in paragraph 2 endorsed by this Committee to the Minister for Planning, Minister for Public Transport and Major Projects and Premier, seeking to secure the highest level of assurance possible for the proposition that, upon receipt of an Amendment adopted by Council:

1.4.1 The Amendment be approved in the form adopted by Council.

1.4.2 The Amendment be approved in conjunction with a Ministerial Amendment under section 20(4) of the Planning and Environment Act 1987 that introduces a suitable interim development contributions control over the area affected by Amendment C190.

1.4.3 To State Government identify and secure open space along the Moonee Ponds Creek for future recreational purposes, consistent with the Arden Macaulay Structure Plan 2012.

1. In respect of the Area 8 controls of proposed Design and Development Overlay (Schedule 63) the FMC resolved to adopt the Panel's recommendations.

City of Melbourne Council Meeting - 30 August 2016

1. In a report dated 30 August 2016, Council Officers recommended that Council, at its meeting of 30 August 2016, inter alia adopt the Amendment in accordance with the resolution of the FMC, including the Panel's recommendations for the Design and Development Overlay (Schedule 63) controls affecting Area 8.
2. At its meeting of 30 August 2016, Council resolved:
   1. That Council:

1.1. Adopts Planning Scheme Amendment C190 as shown in Attachment 7 to the report to the Future Melbourne Committee of 2 August 2016 agenda item 6.3, subject to one change to the Design and Development Overlay 63 such that in Area 8 the Shiel Street frontage is changed from a Residential Interface Street to the following:

Development at the frontage must not exceed a height of 3 storeys.

Development above the street wall should be set back at least 2 metres for every one metre of height.

1.2 Submits the adopted Amendment to the Minister, requesting that Amendment C190 be approved in conjunction with a Ministerial Amendment under section 20(4) of the Planning and Environment Act 1987 that introduces a suitable interim development contributions control over the area affected by Amendment C190.

1.3 Requests that Government identify and secure open space along the Moonee Ponds Creek for future recreational purposes, consistent with the Arden Macaulay Structure Plan 2012.("Adoption Resolution").

1. The Council did not identify the changes it proposed to the exhibited version of the Amendment. Rather, it identified the changes it proposed to make from the Post Exhibition Version of the Amendment.
2. In respect of the Area 8 Shiel Street interface controls of proposed Design and Development Overlay (Schedule 63), the built form controls adopted were a significant departure from the Panel recommendation and the version of the Amendment endorsed by the FMC. They were also a significant departure from the built form controls for Shiel Street that formed part of the Post Exhibition Version of the Amendment.
3. The Adoption Resolution does not contain, or make reference to, any document that contains the reason or reasons why the Council did not adopt the recommendations of the Panel, its officers, and the FMC with regard to the built form controls for Shiel Street.
4. The planning controls proposed for Shiel Street by the Council resolution were not controls previously proposed, or raised, during the course of the Amendment process, or the panel hearing. They were not the same as the controls in the exhibited Amendment.

1. On or about 27 September 2016, Council purportedly submitted the Amendment to the Minister for approval in accordance with the Council resolution of 30 August 2016.
2. In doing so, Council failed to have regard to the requirements of Clause 7 of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987 which required the adopted amendment , together with the prescribed information, to be submitted to the Minister within 10 business days of the date the amendment was adopted. Council therefore failed to submit the adopted Amendment to the Minister in accordance with law.
3. By email dated 21 November 2016 (and subsequently pursuant to orders made in this proceeding) the Council provided the Applicant with the details of the prescribed information submitted to the Minister for the purposes of section 31 of the Planning and Environment Act 1987.
4. This material does not provide any justification for its adopted version of the Shiel Street interface controls of proposed Design and Development Overlay (Schedule 63) which are a significant departure from the recommendations of the panel, the FMC, and the recommendation of Council Officers to the Council of 30 August 2016.
5. Further, the information submitted to the Minister by the Council does not comply with Regulations 9(e) and (g) of the Planning and Environment Regulations 2015. The information submitted did not include:
   1. the reasons why the recommendations of the Panel with regard to the built controls for development fronting Shiel Street were not adopted, which was required by regulation 9(e); or
   2. a description of and the reasons for any changes made to the amendment before adoption, which was required by regulation 9(g).
6. The information did not include "a description of and reasons for any changes made to the amendment before adoption" because it did not include any description of, or reasons for, the changes made by the Council to the exhibited version of the Amendment made by the Change Resolution.

1. By letter dated 8 February 2017 to the Minister, the Council's Acting Chief Executive Officer purported to provide the Minister with reasons why the Council did not adopt the Panel's recommendation with regard to the built form controls for Shiel Street ("Justification Letter").
2. The Justification Letter cannot be relied upon by the planning authority to cure its failure to comply with section 31 or Regulation 9, because:

1. it was not submitted to the Minister "together with" the adopted amendment, as required by s 31(1); alternatively 2. If it could be regarded as having been submitted to the Minister "together with" the prescribed information, it was submitted outside of the mandatory time limit of 10 business days after adoption that applies to the submission of an adopted amendment and the prescribed information by virtue of clause 7 of Ministerial Direction 15 made pursuant to 12(2)(a);

1. the Justification Letter does not contain, and is not evidence of, the planning authority's reasons for not adopting the Panel's recommendations with respect to the built form controls for Shiel Street, but is merely speculation made by its author as to what those reasons might have been; alternatively

1. the "reasons" are manifestly unreasonable, are therefore not proper "reasons", in that they are based on the proposition that Council wanted to "reinstate" the built form controls for Shiel Street as contained in the exhibited Amendment in circumstances where: 1. Council had previously resolved to change those controls (purportedly in response to submissions) and to adopt in their place the controls contained in the Post Exhibition Version of the Amendment; and 2. the built form controls for Shiel Street purportedly adopted by the Council were not the same as the controls in the exhibited Amendment.

1. Having regard to the above matters, the Applicant contends as follows:
   1. When the FMC made the Change Resolution, the Council:
      1. failed to comply with s 23 (1)(a) in that it purported to make changes to the Amendment which were not changes made in the manner requested by any submission; and
      2. further, and/or in the alternative failed to comply with s23(1)(b) in that it purported to refer submissions to a panel for consideration, submissions where it had changed the Amendment in the manner requested by those submissions.
2. The Panel failed to comply with s 24 in that it:
   1. considered the Amendment on the basis that it had been lawfully changed after exhibition by Council in accordance with s 23 of the Act, when the Amendment had not in fact been lawfully changed; and
   2. considered submissions that had been referred to it unlawfully by Council, being submissions where Council had resolved to change the Amendment in the manner requested by those submissions.
3. The Council has, in making its resolution of 30 August 2016, failed to comply with section 29 of the Act in that:
   1. it failed to properly identify the changes it was purporting to make to the exhibited Amendment;
   2. purported to adopt a planning scheme amendment in circumstances where it had failed to comply with Divisions 1 and 2 in respect of that amendment, because the amendment purported to include planning controls that had never been exhibited, and in respect of which persons affected by the Amendment had never been given the opportunity to make any submission;
   3. purported to adopt a planning scheme amendment that was not the exhibited amendment with changes but was, with regard to the subject land, properly regarded as a different amendment;
   4. failed to provide procedural fairness to the Applicant by failing to provide it with any notification of, or opportunity to make submissions concerning the form of the Amendment that it purported to adopt.
4. Having regard to the purportedly adopted Amendment, Council failed to comply with s 31(1) of the Act in that it did not submit the adopted amendment to the Minister along with all the prescribed information; specifically the reasons why any recommendations of a panel appointed under Part 8 of the Act were not adopted, as prescribed by regulation 9(e) of the Planning and Environment Regulations 2015.
5. Nor did the Council provide a description of and the reasons for any changes made to the Amendment before adoption for the purposes of regulation 9(g) of the Planning and Environment Regulations 2015, in that it failed to provide a description of and the reasons for the changes it purported to make to the Amendment pursuant to the Change Resolution.
6. The Council failed to comply with section 31(1) of the Act in that it failed to submit the adopted amendment to the Minister together with the prescribed information, to the Minister within 10 business days of the date the amendment was adopted in accordance with the requirements of Clause 7 of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 29 of the Planning and Environment Act 1987.
2. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 23 of the Planning and Environment Act 1987.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Panel, failed to comply with s 24 of the Planning and Environment Act 1987.

1. Pursuant to s 39(4)(a) of the Planning and Environment Act 1987, a declaration that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme, has failed to comply with s 31(1) of the Planning and Environment Act 1987 in that it has failed to provide the prescribed information to the Minister - in particular the information required under Regulations 9(e) and (g) of the Planning and Environment Regulations 2015.
2. A declaration pursuant to s 39(4)(a) of the Act that the Melbourne City Council, in its capacity as the planning authority for Amendment C190 to the Melbourne Planning Scheme failed to comply with section 31(1) of the Act in that it failed to submit the adopted amendment to the Minister together with the prescribed information, to the Minister within 10 business days of the date the amendment was adopted in accordance with the requirements of Clause 7 of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987.
3. A declaration that pursuant to s 39(4)(a) of the Act that the adopted Amendment cannot now be lawfully submitted to the Minister for approval because it was not submitted to the Minister together with the prescribed information within 10 business days of the date the amendment was adopted in accordance with the requirements of Clause 7 of Ministerial Direction 15 made under s 12(2)(a) of the Planning and Environment Act 1987.
4. Further, and/or in the alternative, pursuant to s 39(4)(b) of the Planning and Environment Act 1987 a direction that the decision of the Melbourne City Council purporting to adopt the Shiel Street interface controls of Area 8 of the Design and Development Overlay (Schedule 63) of Amendment C190 to the Melbourne Planning Scheme be set aside, and the matter remitted to the Council to reconsider having regard to the orders and reasons for decision in this proceeding.
5. Further, and/or in the alternative, pursuant to s 39(4)(b) of the Planning and Environment Act 1987, the Tribunal directs that:
   • the Melbourne City Council must not adopt Amendment C190 to the Melbourne Planning Scheme unless and until it has complied with Divisions 1 and 2 of the Planning and Environment Act 1987 with regard to the amendment it intends to adopt, including a clear articulation of any changes to the Amendment, as compared with the exhibited version of the Amendment;
   • the Melbourne City Council must not adopt Amendment C190 to the Melbourne Planning Scheme unless and until it has received and considered a submission from the Applicant as to why the Council should accept the recommendations of the Panel with respect to the built form controls for Shiel Street.
   • the Minister for Planning must not approve Amendment C190 to the Melbourne Planning Scheme unless and until the following specified action is taken by the Melbourne City Council:
     1. following any adoption of Amendment C190 by Melbourne City Council, the Council must provide the information to the Minister prescribed under s 31 of the Planning and Environment Act 1987, including full and proper reasons why any panel recommendations are not adopted, and a description of and reasons for any changes made to the Amendment before adoption.
     2. at the same time as it forwards the prescribed information under s 31 of the Planning and Environment Act 1987 to the Minister, the Council must forward a copy of that information to the applicant in this proceeding.

[1] The submissions and evidence of the parties have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] In this context, I am referring to changes as they affect the subject land. I have not considered any changes to land other than the subject land.

[3] It is listed for hearing on 19 June 2017 for 5 days

[4] Letter from Paul Fridman, Direction, Fridcorp Pty Ltd dated 6 October 2016 to the Minister for Planning

[5] Paragraph H third dot point of relief/orders sought

[6] Throughout my reasons I have referred to the amendment versions and other resolutions and documents by the names ascribed to them by the applicant in Appendix A.

[7] The political and legislative nature of the role of a councillor is acknowledged in Winky Pop Pty Ltd and Anor v Hobsons Bay City Council [2007] VSC 468 at [44]

[8] Section 27(1) Planning and Environment Act 1987

[9] Regulation 9(e) Planning and Environment Regulations 2015

[10] [2007] VCAT 414

[11] Section 38(1) Planning and Environment Act 1987

[12] Section 38(2) Planning and Environment Act 1987

[13] Winky Pop Pty Ltd and Anor v Hobsons Bay City Council [2007] VSC 468 at [41]

[14] Lend Lease Apartments (Armadale) Pty Ltd v Stonnington CC [2013] VCAT 1663

[15] [2013] VCAT 1663 at [33]

[16] Section 24 Planning and Environment Act 1987

[17] Section 24 Planning and Environment Act 1987

[18] Section 25 Planning and Environment Act 1987

[19] Section 27 Planning and Environment Act 1987

[20] Section 29 Planning and Environment Act 1987

[21] Section 28 Planning and Environment Act 1987

[22] Section 25(2) Planning and Environment Act 1987

[23] Section 168 Planning and Environment Act 1987

[24] Section 161(1)(d) Planning and Environment Act 1987

[25] Section 168 Planning and Environment Act 1987

[26] [2007] VSC 468 at [41]

[27] See the transcript of the 30 August 2016 Future Melbourne committee meeting at tab 31 of the Tribunal Book, particular at page 1, lines 20-24, and page 3, lines 23-27

[28] See Exhibit A17, transcript of the 2 August 2016 Future Melbourne Committee Meeting, at, for example, page 5, line 254-255 and page 10, lines 525-531

[29] [2007] VSC 468 at [41]- [43]

[30] Coastal Estates Pty Ltd the Bass Coast SC and Ors [2010] VCAT 1807 at [42]

[31] Clause 2 Ministerial Direction No.15

[32] [2007] VCAT 414

[33] [See section 12(2)(a) of the Act. Also see Glen Eira City Council v Gory [2001] VSC 306, 9 VPR 101]

[34] [I draw a distinction between ministerial directions of the type raised in this case and ministerial directions as to the form and content of a planning scheme. Compare section 7(5) and (6) of the Act]

[35] Panel Report: Melbourne Planning Scheme Amendment C190 - Arden-Macaulay Structure Plan Implementation, 23 October 2015; page 59

[36] Officer report to Future Melbourne Committee 2 August 2016 - Attachment 1, page 1.

[37] Officer report to Future Melbourne Committee 2 August 2016 - Attachment 1, page 1

[38] The panel's recommended version of the DDO is found at Appendix C of Melbourne C190 (PSA) [2015] PPV 125, pages 79-86. The recommendation to rationalise the areas, including amalgamating proposed Area 11 into Area 8 is found at page 39.

[39] Melbourne C190 (PSA) [2015] PPV 125, pages 38, 60, 83.

[40] Melbourne C190 (PSA) [2015] PPV 125, pages 60, 83.

[41] Melbourne C190 (PSA) [2015] PPV 125, pages 53-55, 82.

[42] Melbourne C190 (PSA) [2015] PPV 125, page 82.

[43] Officer report to Future Melbourne Committee 2 August 2016 - Attachment 1, page 1

[44] Minutes of Future Melbourne Committee meeting 2 August 2016, page 8.