The answer, according to the Victorian Civil and Administrative Tribunal in Canaan Holdings Pty Ltd v Whitehorse CC  VCAT 1608, is ‘no’.
In February 2015, Whitehorse City Council decided to adopt Amendment C153 to the Whitehorse Planning Scheme (Amendment), which formed part of a combined application under section 96A of the Planning and Environment Act (Act). Approximately a month later, in March, the Council purported to rescind its decision and to abandon the Amendment.
Canaan Holdings, the applicant under section 96A, challenged the Council’s purported rescission under s 39 of the Act. It argued that, once the Council had adopted the Amendment, it was functus officio (unable to reopen the matter) and was required by section 31 of the Act to submit the Amendment to the Minister for Planning.
The Council argued, first, that the Tribunal did not have any jurisdiction to consider the application under section 39 and, second, that even if it did, the Council was not functus after the February decision.
In relation to the jurisdictional issue, the Tribunal held that it did have jurisdiction to consider the application. It held that, although the scope of review under section 39 was confined to procedural and not substantive errors of law, it was open to the Tribunal to determine whether the Council had the power to revoke its previous decision as part of determining whether there had been an error in not complying with section 31.
The Tribunal held that the Council was functus following the February decision. The Tribunal rejected the argument that the Council possessed an implied power to revoke a decision to adopt a planning scheme, noting that the Act provided two clear opportunities for a planning authority to abandon a planning scheme and that there were other remedies available (e.g. judicial review) if the decision-making process was affected by error. The Tribunal also observed that the implication of a power of revoke could create significant uncertainty, especially given that adopted planning scheme amendments were a mandatory relevant consideration in decision-making under the Act.
The decision of this Tribunal adds to the small, but growing and important, body of case law on section 39 of the Act and the powers of planning authorities in adopting (or not) planning scheme amendments.
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