Anderson v Stonnington Council

[2020] VSCA 229

Victorian Court of Appeal

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Interrogate

Catchwords

1. Statutory Interpretation
2. › Subordinate instruments
3. › Amendment of subordinate instrument
4. › Accrued rights
5. › Whether common opportunity to take advantage of absence of regulation constitutes a 'right'
6. › Whether right acquired or accrued 'under' the instrument amended
7. › Interpretation of Legislation Act 1984 (Vic), s 28(2)(e)
1. Planning and Environment
2. › Planning schemes
3. › Amendment of planning scheme
4. › Heritage overlay
5. › Existing uses and developments
6. › Whether 'use' in s 6(3)(d) extends to 'development'
7. › Distinction between use and development
8. › Planning and Environment Act 1987 (Vic), ss 3(1), 6(3)(d)
1. Planning and Environment
2. › Planning schemes
3. › Effect of planning scheme provisions
4. › Whether cl 61.05 of planning scheme confers right to develop or is ambulatory compliance provision
5. › Planning and Environment Act 1987 (Vic)
1. Practice and Procedure
2. › Appeal
3. › Leave to amend application for leave to appeal
4. › New argument on appeal
5. › Argument withdrawn before Tribunal
6. › Whether in interests of justice to permit amendment
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Quick Take

The commencement of building works under a planning scheme that does not require a planning permit does not create an 'accrued right' to complete those works under s 28(2)(e) of the Interpretation of Legislation Act 1984 (Vic) when the scheme is subsequently amended to introduce a permit requirement. The ability to develop without a permit is a mere opportunity, not a right. Section 6(3)(d) of the Planning and Environment Act 1987 (Vic) protects only the continued 'use' of buildings and works, not the continuation of 'development' works, following Nancy Shetland.