Victorian Civil and Administrative Tribunal|2007-02-13|Before: Stuart Morris J

Simpson v Bass Coast SC [2007] VCAT 165 (13 February 2007)

Accrued right prior to re-zoning - Inchoate right capable of being accrued right - Whether accrued inchoate right capable of surviving re-zoning - Applicable law at the time of the hearing - Time when decision to grant a permit becomes a right to a permit - Objecting person given leave to appeal outside time - Right to permit had accrued before re-zoning. Interpretation of Legislation Act 1984 section 28(2)(c) - Ungar v City of Malvern considered and distinguished

1 The name of the second respondent is amended to Wheel-A-Waste Pty Ltd.

2 I declare that on 18 April 2006 Wheel-A-Waste Pty Ltd had an accrued right under the Bass Coast Planning Scheme to have a permit issued in accordance with the terms of the notice of decision to grant a permit issued by the Bass Coast Shire Council on 27 March 2006 and that, as a consequence, this proceeding is to be continued as if the amendment of the Bass Coast Planning Scheme, that occurred on 13 July 2006 whereby the subject land was rezoned to be included in a Farming zone, had not occurred.

3 I direct that the proceeding be listed for hearing before a planning member in Wonthaggi on a day, not a Wednesday, approximately six to eight weeks from the date of this order.

Mr Jeff Bennett, town planner of Jeff Bennett Planning & Development Services

1 Planning schemes change. Sometimes they change without notice. This happened in this case, where the relevant zoning was changed from a Rural zone to a Farming zone as the result of a ministerial decision. The applicant for review claims that, as a result of the change, a proposed waste transfer station is now a prohibited use. But the respondent responds stating that before the applicant was given leave to initiate the application for review it had a right to be issued with the permit. This is important: because if a right has accrued, the proceeding must continue on the basis of the Rural zone, not the Farming zone.

2 On 21 July 2005 Wheel-A-Waste Pty Ltd applied for a permit to use land at Dalyston for a recycling transfer facility. Notice was given of the application. On 28 November 2005 Trevor Simpson of 30 Lower Powlett Road, Hicksborough lodged an objection. On 29 November 2005 J and R Schellekens of Wonthaggi lodged an objection. On 27 March 2006 the responsible authority issued a notice of decision to grant a permit. This notice stated that the council had decided to allow the land at Dalyston to be used and developed for a recycling transfer station in accordance with endorsed plans and subject to specified conditions.

3 The notice of decision contained the standard statements about appeals including the statement:

* an objector may apply for review of the decision of the Responsible Authority to grant a permit. The application for review must be lodged within 21 days of the giving of this notice.

* if there is no application for review, a permit will be issued after 21 days of the giving of this notice.

4 On 13 April 2006 Shane Simpson, who gave his address as PO Box 172, Wonthaggi, lodged an application for the review of the decision made by the responsible authority. Mr Shane Simpson gave his interest as that of "objector". In fact Mr Shane Simpson had not been an objector. Rather his father, Trevor Simpson, had been an objector. Mr Shane Simpson's application was received by post on 18 April 2006 at which time the application fee was paid.

5 By letter dated 19 April 2006 the tribunal wrote to Mr Shane Simpson, the council and the permit applicant stating that as Mr Shane Simpson was not an objector under section 57 of the Planning and Environment Act 1987 he did not have a right to lodge an application for review unless he was granted leave to do so under section 82B of the Act. The letter indicated that a directions hearing would be held on 28 April 2006 to consider any such application.

6 By letter dated 26 April 2006 the council indicated that it had no objection to, and consented to, Shane Simpson "becoming a party to the application for review". By letter dated 24 April 2006 the planning consultant acting for Wheel-A-Waste Pty Ltd indicated that he did not propose to attend the directions hearing set for 28 April 2006. However he expressed the view that, if the tribunal granted leave for the application to be heard, then the matter be set as early as possible. The basis of the latter request was that there was the prospect that the subject land would be unilaterally rezoned from the Rural Zone to the Farming Zone and that this would have the consequence that the proposed use would be a prohibited use.

7 There is no record as to whether a directions hearing was in fact held on 28 April 2006. It seems that a hearing was not held, but instead the matter was referred to Acting Deputy President Byard on that day. On 8 May 2006 Acting Deputy President Byard made a file note stating that Shane Simpson is granted leave under section 82B of the Planning and Environment Act 1987 to apply for a review of the decision of the responsible authority to grant a permit. The application for review dated 13 April 2006 has subsequently been treated as an application for review pursuant to the decision of Acting Deputy President Byard.

8 The hearing of the proceeding was listed for 26 June 2006. However this hearing was adjourned as it did not suit the convenience of the parties.

9 On 13 July 2006 the applicable planning scheme was amended to change the zoning of all land then zoned Rural to the Farming Zone. This amendment made no express reference to rights that may have been accrued under the planning scheme prior to the amendment. The proposed use, which generally falls under the rubric of "industry", is a prohibited use under the Farming Zone.

10 Mr Shane Simpson submits that the application for review must be summarily allowed because under the current planning controls there is no power to grant a permit for the proposed use. He relies on the decision of the Full Court in Ungar v City of Malvern.[1] Wheel-A-Waste Pty Ltd answers this by submitting that, at the time the planning scheme was amended in July 2006, Wheel-A-Waste Pty Ltd had an accrued right under the planning scheme to be issued a permit; with the consequence that the present proceeding must continue on the basis of the planning scheme that was in force at the time that right accrued.

11 The question which arises for determination is whether the events that occurred before the amendment of the planning scheme in July 2006 gave rise to a right which is an accrued right. If that question is answered in the affirmative, it means that the amendment of the planning scheme does not affect that right, unless the contrary intention expressly appeared in the amendment. As the contrary intention does not expressly appear in the amendment, the consequence of an affirmative answer is that the proceeding must continue on the basis of the law applicable at the time the right accrued.

12 The law in relation to accrued rights is based on both the common law and section 28(2)(e) of the Interpretation of Legislation Act 1984.

13 The common law position is best illustrated by the decision of the High Court of Australia in Maxwell v Murphy.[2] In that case, Dixon CJ summarised the approach of the courts as follows:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

This general approach applies just as much to delegated legislation (such as planning schemes) as to Acts of Parliament.

14 The common law position has been supplemented by provisions in the Interpretation of Legislation Act 1984. In relation to subordinate instruments, the relevant provision is section 28. This relevantly provides:

28(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 provisions 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.

15 Stripped of unnecessary verbiage, the effect of section 28(2) in the present case is as follows:

Where a planning scheme is amended, the amendment shall not, unless the contrary intention expressly appears, affect any right accrued under that planning scheme.

16 Several issues arise in the application of this principle. First, does a person who has the benefit of a planning permit have a "right"? Second, has a right accrued if the right is still inchoate or is contingent on some event? Third, did Wheel-A-Waste Pty Ltd have a right to have a permit issued at some time before the amendment of the planning scheme in July 2006? Fourth, is this case subject to the principle established in Ungar v City of Malvern?

Is having the benefit of a planning permit a right?

17 In the decision in Lakkis v City of Wyndham[3] Deputy President Macnamara observed:

Permits create substantive rights. Changes to the substantive law are presumed not to operate retrospectively. See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 per Dixon CJ. Where a subordinate instrument such as a planning scheme expires, lapses or ceases to have effect, the expiry, lapsing or ceasing to have effect does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision. In my view these principles preserve the operation of [the permit under consideration in that case].

18 In my opinion, the decision in Lakkis is correct. However there is obiter dictum, of high authority, which suggests that a planning permit is not a right, principally because it has been said that it is not acquired by, or accrued to, an individual but is a consent to the world at large in relation to the land which it is subject: see Eaton & Sons Pty Ltd v Warringah Shire Council.[4] However these comments are inconsistent with numerous other cases. In Oppe v Shire of Lillydale,[5] Anderson J referred to rights conferred by a permit. In Castellano v City of Port Melbourne,[6] Beach J held that a permit holder had acquired a right by virtue of the issue of a permit. In Ungar v City of Malvern,[7]the Full Court of the Victorian Supreme Court uses the word right in relation to the grant of a permit. Moreover, in Day v Pinglen Pty Ltd,[8] five judges of the High Court of Australia unanimously said, albeit in a different context:

A building approval [referring to a planning permit], once given, confers a valuable right, and the test by which an owner may be dispossessed of that right should be one that is clearly understood and readily applied.

19 No permit has been issued to Wheel-A-Waste Pty Ltd. At best it could have compelled the issue of a permit, in accordance with the notice of decision, when there had been no valid objector appeal within the prescribed time. This raises the question of whether the accrued rights principle applies to a right which is inchoate or contingent.

20 In Abbott v Minister for Lands,[9] it was pointed out that the repeal of any Act must affect rights in the general sense as the law will henceforth be different from what it was. For a right to be protected it must have been accrued; hence it is necessary to establish that the right that is claimed to be preserved is a real one and not one that is still in abstracto. Channell J expressed the matter this way in Starey v Graham,[10] that a right acquired means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. (See also Boyce v Hughes.[11]) A mere hope or expectation that a right will be created is not preserved: Director of Public Works v Ho Po Sang[12] and Ungar v City of Malvern.[13] However in Free Lanka Insurance Co Ltd v Ranasinghe[14] it was said that a section equivalent to section 28(2) would save a right, even though that right was inchoate or contingent. Further, the fact that a right may be qualified, limited or transitory in nature will not prevent its maintenance: see Mathieson v Burton.[15]

21 In the town planning and local government context it has been established that the mere lodging of an application for subdivision did not accrue a right to have the application considered in accordance with the procedures then extant: see Robertson v City of Nunawading.[16] Similarly the making of a planning application and then appealing to the planning tribunal did not accrue a right to have the appeal heard on the basis of the law applicable at the time of the initial application: see Ungar. Another decision to similar effect is R v Registrar of Titles; ex parte John Wolbers Constructions Pty Ltd.[17] However these cases revolved around the proposition that, at the time the relevant law changed, the developer had not obtained any right (even an inchoate right), but was seeking a prospective right or the exercise of a discretion in its favour.

22 The interpretation of the equivalent to section 28(2) was considered by the High Court of Australia in Esber v The Commonwealth[18] where it was held that rights of the applicant had been acquired before the repeal of certain legislation and were preserved. The High Court made it clear that the principle protects anything that may truly be described as a right, although that right might fairly be called inchoate or contingent.[19]

23 The effect of provisions similar to section 28(2) has also been the subject of consideration by the Court of Appeal of the Supreme Court of Victoria in Transport Accident Commission v Lanson.[20] In that case J D Phillips JA discusses the common law and the Interpretation of Legislation Act provision. In his judgment his Honour observed that

it is now established that a right may be sufficiently recognised to warrant protection against legislative change, though the right be still "inchoate or contingent".[21]

24 Having regard to these authorities, it is clear that the accrued rights principle applies to an inchoate or contingent right, such as a right to be issued a permit.

Did Wheel-A-Waste have a right to be issued a permit?

25 As Deputy President Gibson has recently observed in Bass Coast Shire Council v Christian Brethren Trust,[22] the issue of a permit is an administrative act that implements a decision: it is to be contrasted with the discretionary act of making a decision to grant a permit.

26 The scheme of the Planning and Environment Act 1987 is that a responsible authority is obliged to issue a permit, in accordance with a decision to grant a permit, when the decision making process is effectively finalised. If there are no objectors, this is after a responsible authority makes a decision in favour of an application: see section 63. The same applies if notice of the decision to grant a permit is not required to be given to objectors. Where there are objectors, and notice of the decision to grant a permit must be given to objectors, a permit must not be issued until the time for any objector appeal has expired and if no valid appeal has been lodged within that time: see section 64(3)(a). If an appeal is validly lodged within time, then a permit must not be issued until the appeal is determined or withdrawn: see section 64(3)(b). And if the tribunal grants a permit, the permit must be issued as specified in section 86.

27 Although there is no specific provision stating that a responsible authority must issue a permit when it has decided to do so, and there are no objector appeals lodged within time, this is the clear scheme of the Act. The fact that this is the legislative intention is confirmed by the form of the notice of decision itself, which states that if no objector appeals are lodged a permit will issue.

28 Hence, in my opinion, a right accrued to Wheel-A-Waste Pty Ltd in April 2006 when the time for an objector appeal in relation to the notice of decision expired. At that time there was before the tribunal an application for review by Mr Shane Simpson, but this was not a valid application at that time as he had not been an objector.

29 It may seem odd that a person can obtain leave to apply to review a decision to grant a permit at a time after an objector was required to lodge such an application and in circumstances where no such objector application had been lodged. By reasons of section 82B(6) of the Act there is no power to grant such leave if a permit has been issued under section 63.[23] The fact that no permit was issued in this case is likely to have been the unfortunate consequence of the fact that there had been a purported objector appeal. If the responsible authority had realised that the purported appeal was invalid, and as a consequence had issued the permit, then it is unlikely that leave would have been granted.

30 This case is not subject to the principle established in Ungar v City of Malvern. That principle is sometimes stated to be that the law applicable at a tribunal hearing is the law at the time of the tribunal decision. In truth, this is an overstatement. Although that will usually be an accurate summation of the correct legal position, it will need to be adapted to unusual cases, such as the present, where a party to an application for review seeks not just to obtain a right, but to protect or maintain a right.

31 In Ungar an owner of land applied for a permit to use land for a commercial car park. The responsible authority (the City of Malvern) refused to grant a permit. The owner then lodged an appeal with the Town Planning Appeals Tribunal. By the time the appeal came on for hearing, the planning scheme had been amended to prohibit the use of the land for a commercial car park. In these circumstances the Full Court decided that the owner had not acquired a right to have the appeal determined in accordance with the law in force at the time the appeal had been lodged. The basis of this decision was that the owner had no more than a hope or expectation that his appeal would succeed; and the tribunal's task was whether a right should or should not be given. It can be seen that the facts of Ungar are significantly different to the present case.

32 The amendment of the applicable planning scheme in July 2006 does not affect the right accrued by Wheel-A-Waste Pty Ltd under that planning scheme and the present proceeding must be continued as if the planning scheme had not been amended. In the event that the application for review succeeds it would be appropriate to set aside the decision of the responsible authority to grant a permit. On the other hand, if the application for review does not succeed it would be appropriate for the tribunal to direct that a permit issue in accordance with the decision of the responsible authority to grant a permit, with or without further amendments.

Simpson v Bass Coast SC [2007] VCAT 165

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Simpson v Bass Coast SC [2007] VCAT 165 (13 February 2007)

Parties

Cases Cited (5)