Planning scheme amendment: eAlert July 2011

Law to be applied when a planning scheme amendment comes into force after a planning application has been made

In a recent decision the Tribunal again confirmed the principle that, where a planning scheme amendment occurs, at some time between the making of the application and the final decision of the Tribunal (following an appeal or appeals), in the absence of any accrued right to do otherwise, the Tribunal is required to apply the law that exists at the time it makes its final decision.

The same principle applies to Council in its decision-making on planning applications.

The case also highlights both:

• The need to be vigilant in carefully examining any planning scheme amendment to identify whether there are any transitional arrangements which may affect the general principle
• There may be the fairly rare case where the general principle is found not to be applicable, so that the pre-existing law is required to be applied because it can be shown that, prior to the amendment, a substantive right had accrued to the applicant to require the then existing law to be applied in the particular case.

The recent decision

It is unnecessary to set out the detailed facts in The Sisters Wind Farm Pty Ltd v Moyne Shire Council, it being sufficient to state them briefly as follows:

• The applicant applied to Council for a planning permit to develop a wind energy facility
• The application was refused and, following a review before VCAT, Council's refusal was affirmed
• The applicant appealed to the Supreme Court and was successful
• The case was remitted to the Tribunal to be further heard, limited to the noise aspects of the proposal
• Before the further hearing had taken place, the planning scheme was amended which (amongst other things) altered the noise standard to be applied to such a proposal
• The applicant contended that the pre-existing noise standard should be applied, on the basis that a right had accrued which required the Tribunal to apply the law which existed prior to the gazettal of the scheme amendment
• Council submitted that no such right had accrued and that the Tribunal was required to apply the new standard which came into force following the scheme amendment

On these facts, the Tribunal (constituted by Deputy President Gibson) upheld the Council's submission and, in her concluding reasons, said:

...I find that the facts in the present case do not fall within the ambit of section 28. I find that no right was acquired or accrued under the planning scheme. The applicant had no more than “a power to take advantage of an enactment”. No right is given under the planning scheme; rather, it establishes a process which is to decide whether a right in the form of a planning permit should or should not be given. It is a situation which, in my view, falls squarely within the principle enunciated in Ungar. It does not matter that the process of decision making is being made upon remittal from the Supreme Court or upon an initial application for review: the task of the Tribunal is the same in each case. It must consider the original permit application de novo (albeit in the present instance confined to the issue of noise).

It can therefore be seen that it will generally be the case that the law existing at the time of the Tribunal (or Council) decision is the law to be applied.

However, the amending legislation must always be carefully scrutinised to discover whether the transitional provisions embodied in the amending legislation impact on any particular application.

Transitional provisions may either protect a particular category of application from the scheme amendment or the provisions may override an accrued right by evidencing an express contrary intention.

Councils should also be conscious of the fact that, though the general principle in Ungar will usually apply, it is likely that there will be the fairly rare case where a substantive right (such as a right of appeal) will have accrued before the scheme amendment came into force, and hence will be protected despite the subsequent scheme amendment.

If you have any questions about any issue raised in this e-alert, please contact:

Maria Marshall | Partner                              
Direct 61 3 9288 0551                                 
maria.marshall@maddocks.com.au                         

Ian Murray | Special Counsel
Direct 61 3 9288 0665 
ian.murray@maddocks.com.au