VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST

VCAT REFERENCE NOS. P1684/2014 & P2208/2014

CATCHWORDS
Section 149A Planning and Environment Act 1987 clause 61.01 Melbourne Planning Scheme
consideration of who is the correct responsible authority interpretation of developments with a gross
floor area exceeding 25,000 square metres

APPLICANT

P1684/2014
P2208/2014
RESPONSIBLE AUTHORITY

Carol and Alan Schwartz, Cbus Property & PT

Limited, Hosier Inc, Melbourne City Council
Melbourne City Council
Minister For Planning

RESPONDENT

P1684/2014
P2208/2014

Forum Theatre Holdings Pty Ltd (Mariner

Group),
Forum Theatre Holdings Pty Ltd

OTHER

P1684/2014

Public Transport Victoria

P2208/2014

Carol and Alan Schwartz, Cbus Property & PT

Limited, Hosier Inc

SUBJECT LAND

150-162 Flinders Street and 17-25 Russell

Street
MELBOURNE VIC 3000

WHERE HELD

55 King Street, Melbourne

BEFORE

Helen Gibson, Deputy President

HEARING TYPE

Hearing

DATE OF HEARING

23 February 2015

DATE OF ORDER

10 April 2015

CITATION

ORDER
Parties to proceeding

In application P2208/2014 all persons who are parties in application

P1684/2014 are joined as parties to this proceeding pursuant to section 60
Victorian Civil and Administrative Tribunal Act 1998.

Declarations

In application P2208/2014, pursuant to section 149A(2)(a) of the Planning

and Environment Act 1987, I make the following declarations:
a

Pursuant to clause 61.01 of the Melbourne Planning Scheme the

responsible authority for considering and determining each of the
following two projects included in planning permit application
2013/009973 is the Melbourne City Council:

Demolition of the MTC building and development of a multi

storey building comprising a residential hotel, dwellings, retail,
office and business identification signs, variation to loading bay
requirements and variation of the bicycle parking rates in respect
of the property at 17 25 Russell Street, Melbourne and that part
of 150 162 Flinders Street containing the cantilevered section
of the new building; and

Exterior works to the Forum Theatre at 150 162 Flinders

Street, Melbourne, including reinstatement of the c.1928
canopies and ground floor facades, including stall boards and
post boxes, the recladding of the facades and the reinstatement of
the original lit signage to Flinders Street pursuant to clause
43.02-2 (DDO2).

The Minister for Plannings notice of decision to grant a permit dated

1 September 2014 in relation to planning permit application
2013/009973 is void.

In application P2208/2014, pursuant to section 149A(2)(b) of the Planning

and Environment Act 1987, I direct the Minister for Planning to refer
planning permit application 2013/009973 to the Melbourne City Council for
consideration and determination.

Application P1684/2014

In application P1684/2014, pursuant to section 51(2)(d) of the Victorian

Civil and Administrative Tribunal Act 1998, the decision under review
made by the Minister for Planning is set aside and the matter is remitted to
Melbourne City Council as the responsible authority to consider.

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Helen Gibson
Deputy President

APPEARANCES:

For Melbourne City Council

Ms Susan Brennan SC and Ms Emma Peppler

of counsel, instructed by Bridget Ryan, Legal
Counsel, City of Melbourne

For Carol and Alan Schwartz

Mr Adrian Finanzio SC, and Mr Andrew

Walker of counsel, instructed by Harwood
Andrews

For Hosier Inc

Ms Alison Fairley

For Minister for Planning

Mr Barnaby Chessell of counsel, instructed by

Legal and Legislation Services, Department of
Environment, Land, Water and Planning

For Forum Theatre Holdings

Pty Ltd

Mr Chris Canavan QC and Ms Emily Porter of

counsel, instructed by Minter Ellison

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REASONS
WHAT IS THIS PROCEEDING ABOUT?

The Marriner Group proposes to redevelop the former Melbourne Theatre

Company (MTC) site at 25 Russell Street, Melbourne, by demolishing the
existing building on the land and constructing a new building of 32 levels
(107 metre) for a residential hotel, ground level retail, commercial and
residential uses. The new building will cantilever over the existing Forum
Theatre building at 150 162 Flinders Street, Melbourne. The Marriner
Group also proposes to refurbish the exterior of the existing Forum Theatre.

The permit application was submitted to the Minister for Planning as the
responsible authority.1 The Minister decided to grant a permit. Four
applications for review were lodged under section 82 of the Planning and
Environment Act 1987 to review this decision. This proceeding is
application P1684/2014 and the applicants for review are Carol and Alan
Schwartz (the Schwartzs), Cbus Property and PT Limited (Cbus), Hosier
Inc and Melbourne City Council (the council).

A question of jurisdictional fact has arisen in the context of the review of

the Ministers decision to grant a permit. The council submits that the City
of Melbourne is the responsible authority for considering and determining
the proposed development not the Minister for Planning.

This submission is made on the basis that the council is the responsible
authority for considering and determining developments where the gross
floor area does not exceed 25,000 square metres. The Minister for Planning
is the responsible authority for considering and determining applications for
developments with a gross floor area exceeding 25,000 square metres. 2

In the present case, the total gross floor area of the new development has
been calculated by the applicant to be 26,007 square metres. This
calculation includes the floor area of the Forum Theatre, which is
approximately 6,387 square metres. The council says that while the land
subject to the application includes both the Forum Theatre and 25 Russell
Street, Melbourne, the development requiring planning permission relates
to the demolition of the existing building at 25 Russell Street, the
construction of a new building (which overhangs the existing Forum
Theatre building) and the construction of external alterations to the Forum
Theatre. The council says that the floor area of the existing Forum Theatre
building should not be included in the calculation of the gross floor area of
the development being applied for. The gross floor area of the development
is therefore considered to be 19,620 square metres, which is below the
threshold stipulated by the schedule to clause 61.01 of the Melbourne
Planning Scheme. On this basis, the council says that the Minister for
Planning is not the responsible authority.

1
2

Permit application No. 2013/009973

Clause 2.0 of the schedule to clause 61.01 Melbourne Planning Scheme

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In order to resolve this question of jurisdictional fact, the council has lodged
an application for declarations under section 149A of the Planning and
Environment Act 1987 in which it seeks the following declarations:
1.

The Tribunal declares that pursuant to clause 61.01 of the

Melbourne Planning Scheme the responsible authority for
considering and determining planning permit application
2013/009973 is the Melbourne City Council.

2.

The Tribunal declares that the Minister for Plannings notice of

decision to grant a permit made September 2014 in relation to
planning permit application 2013/009973 is void.

3.

The Tribunal directs the Minister for Planning to refer planning

permit application 2013/009973 to the Melbourne City Council
for consideration and determination.

4.

Tribunal proceeding P1684/2014 is struck out.

Other applicants for review in application P1684/2014, Carol and Alan

Schwartz and Hosier Inc, support the councils contentions. The permit
applicant and the Minister for Planning both contend that the Minister is the
responsible authority.

WHAT ARE THE RELEVANT PLANNING CONTROLS?

Responsible Authority for administering and enforcing the planning
scheme

The schedule to clause 61.01 of the Melbourne Planning Scheme sets out
who is the responsible authority for administering and enforcing this
scheme.

Clause 1.0 of the schedule to clause 61.01 provides:

1.0

Responsible authority for administering and enforcing this

scheme:
The Council of the City of Melbourne is the responsible
authority for administering and enforcing the scheme, except for
matters specified in Clause 61.01-1 and matters listed in this
schedule.

10

Clause 2.0 provides (inter alia):

The Minister for Planning is the responsible authority for considering
and determining applications, in accordance with Divisions 1, 1A, 2,
and 3 of Part 4 of the Planning and Environment Act 1987 and for
approving matters required by the scheme to be done to the
satisfaction of the responsible authority in relation to:

Developments with a gross floor area exceeding 25,000 square metres

except on land shown as CCZ4 on the planning scheme maps.

Development and use of land for or on behalf of a Minister of the

Crown.

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Comprehensive Development Zone; Schedule 2 Carlton Brewery.

The approval and amendment of any development plan, pursuant to

clause 43.04-3, in relation to Schedule 8 to the Development Plan
Overlay (Carlton Housing Precincts).

Victorian Heritage Register

11

The Forum Theatre at 150 162 Flinders Street, Melbourne is registered on

the Victorian Heritage Register VHR No HO438.

Zones, overlays and particular provisions

12

13

Both lots are subject to the following planning scheme controls:

Capital City Zone Schedule 1 (clause 37.04)

Design and Development Overlay Schedule 2 (Height Controls

Capital City Zone A5 40 metre discretionary height control)
(clause 43.02)

Design and Development Overlay Schedule 4 (Weather

protection Capital City Zone) (clause 43.02)

Heritage Overlay 505 (clause 43.01)

Parking Overlay Schedule 1 (clause 45.09)

Clause 52.05 Advertising Signs

Clause 52.07 Loading and unloading of vehicles

Clause 52.34 Bicycle facilities.

In addition, 150 162 Flinders Street is subject to:

Design and Development Overlay Schedule 1 (Active Street

Frontages Capital City Zone A2) (clause 43.02); and

Heritage Overlay 653 (Clause 43.01).

14

Applications under the Capital City Zone (CCZ1), the Design and
Development Overlay (DDO1, DDO2 and DDO4), clause 52.05
(advertising signs) and clause 52.34 (bicycle facilities) are all exempt from
third party notice and review rights.

15

Under the Heritage Overlay in respect of the MTC land at 25 Russell Street,
the application is not exempt from third party notice and review rights. It is
therefore under the Heritage Overlay provisions that the applications for
review in application P1684/2014 have been made.

16

However, with respect to the Forum Theatre land at 150 162 Flinders
Street, no permit is required under the planning scheme pursuant to clause
43.01-2 because it is a heritage place which is included on the Victorian
Heritage Register.

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17

In summary, it is common ground that the following matters require a

planning permit:

For 25 Russell Street:

i.

ii.

iii.

1.

Capital City Zone (clause 4 of Schedule 1 of

clause 37.04); and

2.

Heritage Overlay (clause 43.01-1); and

Construction of the residential hotel building pursuant

to
1.

Capital City Zone (clause 3 of Schedule 1 of

clause 37.04);

2.

DDO Schedule 2 (clause 43.02-2);

3.

DDO Schedule 4 (clause 43.02-2);

4.

Heritage Overlay (clause 43.01-1); and

Reduction in loading (clause 52.07).

For 150-162 Flinders Street:

i.

18

Demolition of the extant MTC building pursuant to

External refurbishment works pursuant to DDO Schedule 2

(clause 43.02-2);

For 150 160 Flinders Street, the following matters do not require a
planning permit:

Pursuant to the Capital City Zone Schedule 1, a permit is not

required to carry out works which are alterations to a building
authorised under the Heritage Act, provided the works do not
alter the existing building envelope or floor area (clause 4 of
Schedule 1 of clause 37.04);

Pursuant to DDO Schedule 1, a permit is not required to develop

a heritage place which is included on the Victorian Heritage
Register if a permit for the development has been granted under
the Heritage Act 1995 (clause 3 of Schedule 1 of clause 43.02);
and

Pursuant to the Heritage Overlay, a permit is not required to

develop a heritage place which is included on the Victorian
Heritage Register (clause 43.01-2).

WHAT HAS BEEN APPLIED FOR?

19

A single application for permit was made to the Minister for Planning on 20
December 2013 (application No 2013/009973). The application is for land

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at both 17 25 Russell Street3 and 150 162 Flinders Street, Melbourne.

The proposal is described as:
Proposed multi use and multi level development, demolition and
associated works including renovation of the Forum Theatre in
accordance with the plans and associated documents filed in support
of the application.

20

The application does not articulate the specific permissions required under
the planning scheme.

21

The application contains one set of plans in relation to the land at 25

Russell Street (the Bates Smart plans) and one set of plans in relation to the
land at 150-162 Flinders Street (the Trethowan plans). The Bates Smart
plans are accompanied by a Design Report and various other reports4 all
relating to the hotel building.

22

The Bates Smart plans relate to Hotel Forum, a proposed 32 storey, 107
metre high building at 25 Russell Street which would contain a residential
hotel, as well as retail/commercial, penthouse apartments and office uses.
This building is proposed to cantilever some 3.5 metres into the airspace of
the Forum Theatre.

23

The Trethowan plans and accompanying heritage impact statement indicate

that the proposed works to the Forum Theatre are exterior works, which
include the reinstatement of the c.1928 canopies and ground floor facades,
including stall boards and poster boxes; the re-cladding of the facades and
the reinstatement of the original lit signage to Flinders Street. The
statement says that the works will be undertaken:
in conjunction with the redevelopment of the adjacent former
Russell Street Theatre property at 19-25 Russell Street. The upper
floors of this development cantilever over the Forum Theatre stage
roof for a distance of 3.5 metres and along the entire northern
boundary of the Forum Theatre property.
No internal works to the theatre are proposed.

24

The Bates Smart Design Report and plans include a calculation of total
gross floor area, of 26,007 square metres. This calculation consists of the
gross floor area of 19,620 square metres for the proposed building at 25
Russell Street, and 6,387 square metres of existing gross floor area for the
Forum Theatre site.

This description of the street address appears to be wrong. It should be 19 25 Russell Street. However
there is a constant discrepancy in the description of the street address in documents relating to the permit
application and VCAT proceedings. I do not consider that anything turns on this discrepancy. There is no
dispute that the site is the land occupied by the former Melbourne Theatre Company building situated
between the Forum Theatre to the east and Cavendish House on the corner of Flinders Lane and Russell
Street to the west. In this decision I will continue to refer to this land as 25 Russell Street, Melbourne.
4
Wind, acoustics, waste management, traffic and transport, ESD management plan, economic impact
assessment, boundary re-establishment and site analysis survey, and building regulations compliance
report.
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25

Whilst the name of the applicant and the owner of the land is given in the
permit application as Forum Theatre Holdings Pty Ltd, in fact the two
parcels of land are in different ownerships. The land at 25 Russell Street is
owned by Forum Theatre Holdings Pty Ltd whilst the Forum Theatre at 150
162 Flinders Street is owned by Forum Theatre Investments Pty Ltd.

WHAT PERMISSIONS HAVE BEEN GIVEN?

26

On 23 June 2015, Heritage Victoria issued a permit for 150 162 Flinders
Street in relation to the external restoration and conservation works,
reinstatement of lighting and roof top signage to its 1929 appearance and
cantilevering of a structure over the northern boundary, in accordance with
specified documents and subject to conditions.

27

On 1 September 2014, the Minister for Planning issued a Notice of

Decision to Grant a Permit (NOD) for land at 150 162 Flinders Street and
17 25 Russell Street, Melbourne to allow:
Demolition of the building at 17-25 Russell Street and development of
a multi-storey building comprising a residential hotel, dwellings,
retail, office & business identification signs, variation to loading bay
requirements and the variation of the bicycle parking rates generally in
accordance with the endorsed plans.

28

Condition 3 of the NOD requires the title boundary to the land at 17 25

Russell Street to be realigned to incorporate the southern wall of the tower
building including the cantilevered section and must include the air space
above RL45 metres on the title to the satisfaction of the City of
Melbourne. This means that whilst the address of the permit includes the
address at 150 162 Flinders Street, the hotel building will be on a separate
title, which will include the cantilevered section over this property, and the
Forum Theatre will be on its own separate title.

29

Condition 4 of the NOD requires a light and air easement of at least 5

metres in width along the southern extent of the realigned boundary above
RL45 metres to be provided on the title to the Forum Theatre at 150 162
Flinders Street to the satisfaction of the City of Melbourne.

30

Condition 5 of the NOD requires the owner of the land to enter a section
173 agreement to require, inter alia:

The external restoration of the Forum Theatre 150 162 Flinders

Street, Melbourne to the specifications and requirements
specified in any approval granted under the Heritage Act 1995.

A defined time frame and cost for the external restoration of the
Forum Theatre at 150 162 Flinders Street, Melbourne.5

It is interesting to note in the context of the present dispute that condition 5 requires the owner of the
land to enter into an agreement with the Responsible Authority being the City of Melbourne pursuant to
section 173 of the Planning and Environment Act 1987. This description of the responsible authority
being the City of Melbourne is repeated in condition 6. However, I have placed no weight on this
description of the responsible authority in the NOD in determining who is the lawful responsible
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31

There is nothing in the NOD which grants permission for the external
refurbishment works to the faade of the Forum Theatre required pursuant
to DDO2.

WHO IS THE RESPONSIBLE AUTHORITY?

Issues

32

The issue of who is the responsible authority is a question of statutory

interpretation of the meaning of clause 2.0 of the schedule to clause 61.01
and then the application of that interpretation to the facts of the case.

A question of statutory interpretation

33

Ms Brennan, on behalf of the council, set out the principles of statutory

interpretation which must guide me in the interpretation of this provision.
They are not in dispute.

The relevant starting point is the words of the legislative text.6

The primary object of statutory construction is to construe the

relevant provision so that it is consistent with the language and
purpose of all of the provisions of the statute.7

It should be noted that the context (including the mischief which

the statute was intended to remedy) is to be considered at the
first instance not only in cases of ambiguity.8

The duty of a court is to give words of a statutory provision the

meaning that the legislature is taken to have intended them to
have.9

The application of rules of statutory interpretation will properly

involve the identification of a statutory purpose, which may
appear from an express statement in the relevant statute, by
inference from its terms and by appropriate reference to extrinsic
materials. The purpose of the statute is not something that exists
outside the statute. It resides in its text and structure, albeit it
may be identified by reference to common law and statutory
rules of construction.10

authority in this proceeding.

6
Alcan (NT) Alumina Ply Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at paragraph 4
per French J and paragraph 47 per Hayne, Heydon, Crennan and Kiefel JJ.
7
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph 69 of the
majority judgment of McHugh, Gummow, Kirby and Hayne JJ.
8
Roads Corporation v McCarthy [2004] VSC 369 at paragraphs [26] - [27] per Osborn J in referring to:
Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd
(1997) 187 CLR 384; and Mason J in K & S Lake City Freighters Ply Ltd v Gordon and Gotch Ltd [1985]
RCA 48.
9
see Project Blue Sky paragraph 78
10
Lacey v Attorney-General of Queensland [20111 HCA 10 at paragraph 44.
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A construction that would promote the purpose or object

underlying the Act or subordinate instrument shall be preferred
to a construction that would not promote that purpose or object.11

34

In relation to the interpretation of subordinate instruments, including

planning schemes, there is an additional principle, namely that they are to
be interpreted bearing in mind their use by practical people skilled in a
particular industry. Therefore they ought be construed in light of practical
considerations. An interpretation which leads to a reasonably practical
result is to be preferred.12

35

In essence, the task of construction requires consideration of text, context

and purpose.

36

The text to be interpreted is as follows:

The Minister for Planning is the responsible authority for considering
and determining applications and for approving matters required by
the scheme to be done to the satisfaction of the responsible authority
in relation to:

37

Developments with a gross floor area exceeding 25,000 square metres

Clause 71 of the planning scheme provides as follows:

A term used in this planning scheme has its ordinary meaning unless
that term is defined:

38

In this planning scheme.

In the Planning and Environment Act 1987 or the Interpretation of

Legislation Act 1984, in which case the term has the meaning given to it
in those Acts unless it is defined differently in this scheme.

Development is defined in section 3 of the Planning and Environment Act

1987 as follows:
development includes

11
12

(a)

the construction or exterior alteration or exterior decoration of a

building; and

(b)

the demolition or removal of a building or works; and

(c)

the construction or carrying out of works; and

(d)

the subdivision or consolidation of land, including buildings or

airspace; and

(e)

the placing or relocation of a building or works on land; and

(f)

the construction or putting up for display of signs or hoardings;

Section 35(a) Interpretation of Legislation Act 1984 (Vic).

See Pearce and Geddes Statutory Interpretation in Australia, 8th edition, at pages 167 - 168

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39

Section 37 of the Interpretation of Legislation Act 1984 provides that unless

the contrary intention appears, words in the singular include the plural and
vice versa.

40

Clause 72 of the planning scheme defines gross floor area as:

The total floor area of a building, measured from the outside of
external walls or the centre of party walls, and includes all roofed
areas.

Position of the parties

41

The council submits that the permit applicant should not count the existing
ground and basement floor area of the Forum Theatre in the assessment of
whether its proposal is properly described as developments with a gross
floor area exceeding 25,000 square metres. Instead, the existing ground
and basement floor area of the Forum Theatre should be excluded from the
calculation of gross floor area of the proposal which is the subject of the
application.

42

The council submits that the correct interpretation of the provision is to

make the Minister the responsible authority for proposals which involve
either construction of gross floor area of more than 25,000 square metres
(new development) or carrying out of works to floor area of more than
25,000 square metres (changes to the floor area itself), but not to the faade
within which the gross floor area is contained. It submits that the new gross
floor area in this application is for less than 25,000 square metres. The
construction or carrying out of works in question is also undertaken to a
gross floor area of less than 25,000 square metres. No works are proposed
to be carried out to the ground or basement floor area of the Forum Theatre,
and no permission is required as part of the application in relation to that
floor area.

43

The council submits that the phrase developments with a gross floor area
exceeding 25,000 square metres requires a different exercise from simply
counting up all of the floor area of the existing buildings on the land listed
in the permit application. Instead, it requires a calculation of the total floor
area which is to be constructed or to which works are to be carried out.

44

The Schwartzs say that the phrase developments with a gross floor area
exceeding 25,000 square metres is concerned with the size of
developments in the sense of projects. However one interprets clause
61.01, the clause is not concerned with wholly different or separate
development proposals, the cumulative floor area of which, when added
together, exceed 25,000 square metres. Clause 61.01 is concerned with
development proposals which, viewed objectively, are an integrated whole.
Separate development proposals are not rendered integrated because the
applicant has chosen to include them in the same permit application.

45

By contrast, the permit applicant says that the provision should be

construed to mean applications connected to developments (including

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exterior alteration or decoration) accompanying a gross floor area

exceeding 25,000 square metres. Clause 2.0 of the schedule to clause 61.01
requires there to be developments with a gross floor area exceeding 25,000
square metres. Gross floor area is a form of measurement, namely the
total floor area of a building. It does not permit a reading down of the
broad definition of development to require something positive to be done
to the floor area itself.
46

The Minister for Planning takes a similar approach to the permit applicant
to the interpretation of the phrase developments with a gross floor area
exceeding 25,000 square metres. He says that the two components of the
application should not be disaggregated because the works proposed are
part of a co-ordinated program of works.

What is the question of interpretation?

47

In my view, the question is whether the term developments with a gross

floor area exceeding 25,000 square metres means projects with a gross
floor area exceeding 25,000 square metres or some form of development
as defined in section 3 of the Planning and Environment Act 1987, such as
the construction of a building or the demolition of a building.

48

I have a number of difficulties with defining developments with a gross

floor area exceeding 25,000 square metres by reference to the definition of
development in the Planning and Environment Act 1987.

49

First, the word developments (plural) is used as a noun that is described

by or qualified by the words with a gross floor area exceeding 25,000
square metres. It is to be contrasted with the other three dot points within
the paragraph describing when the Minister for Planning is the responsible
authority.

50

The Minister for Planning is the responsible authority for considering and
determining applications. If it was intended that the Minister was to be the
responsible authority for considering and determining applications in
relation to development as defined in the Act, the clause would read: The
Minister for Planning is the responsible authority for considering and
determining applications in relation to development with a gross floor area
exceeding 25,000 square metres.

51

There would be no reason to use the word developments (plural). Rather,

the wording would reflect the wording used in the second dot point:
Development and use of land for or on behalf of a Minister of the Crown.

52

Second, it is self-evident that the purpose of the provision is to make the

Minister for Planning the responsible authority for applications for large
proposals, which because of their size are of significance to Melbourne. An
interpretation by reference to the definition of development in the Act
would restrict the types of development for which the Minister was the
responsible authority. It would limit them to applications for development
within the meaning of the definition in section 3 of the Act that could

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logically be described as development with a gross floor area exceeding

25,000 square metres. For example, it would exclude subdivision or
consolidation of land, or construction or putting up for display of signs or
hoardings because none of these types of development can be logically
described as being something possessing a gross floor area exceeding
25,000 square metres. By virtue of the definition of gross floor area in
the planning scheme, only buildings can have a gross floor area. Therefore
any development with a gross floor area of 25,000 square metres would
need to involve a building or buildings, not a form of development that did
not involve a building. This would be contrary to the purpose of making
the Minister the responsible authority for large, significant proposals if
there were limits on the type of use or development he could deal with even
though they were large and significant proposals.
53

The Minister for Planning is not only the responsible authority for
considering and determining applications for anything requiring a permit
under the planning scheme, but also for approving matters required by the
scheme to be done to the satisfaction of the responsible authority in relation
to each of the four categories set out in this part of clause 2.0 of the
schedule to clause 61.01.

54

If the word developments is to be interpreted as meaning development

as defined in the Act, there is no need to make the word plural because
words used in the singular include the plural. This implies that the use of
the plural word developments is intended to have a different meaning.

55

The planning scheme uses both words development and developments

in different ways, which are not always interchangeable. For example:

56

Clause 11.04-1 refers to improve decision making processes for

State and regionally significant developments. Developments
in this context does not fit within examples expressed in
paragraphs (a) - (f) in the definition. Instead, it is properly
interpreted as meaning projects.

Clause 11.13-5 refers to support a diverse range of tourism

development on private land. Development in this context
does fit within examples expressed in paragraphs (a) (f) in the
definition. However development in this context may also be
properly interpreted as including projects.

Clause 11.13-5 refers to support the development of Halls Gap

as a resort town and tourism focal point for the region.
Development in this context clearly does not fit within
examples expressed in paragraphs (a) - (f) in the definition.
Instead, it is properly interpreted as meaning growing or
advancing Halls Gap as a resort town and tourism focal point.

There are various other examples of context where the word

developments is properly interpreted to mean projects. This reflects

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one meaning of development as defined in the Macquarie Dictionary (4 th

edition), namely: a building project, usually large, as an office block,
housing estate, shopping complex etc. This can be contrasted to other
contexts in the planning scheme where development is used in the sense in
which it is defined in section 3 of the Planning and Environment Act 1987,
which reflects another of the meanings included in the dictionary, namely:
the act, process or result of developing.
57

In my view, the context of the term developments with a gross floor area
exceeding 25,000 square metres requires the word developments (plural)
to be given its ordinary and colloquial meaning of projects. The projects
will need to involve buildings because only buildings can have a gross floor
area. But where projects involving buildings with a gross floor area
exceeding 25,000 square metres are concerned, the Minister for Planning is
the responsible authority for both considering and determining any
applications under the planning scheme and for approving any matters
required by the scheme to be done to the satisfaction of the responsible
authority in relation to such projects. Such applications may involve
development as defined in the Act or use or other matters for which a
permit is required or where something must be done to the satisfaction of
the responsible authority. The Minister is the responsible authority for all
such matters in relation to projects involving new buildings or existing
buildings with gross floor area exceeding 25,000 square metres.

58

However, such projects do not need to be projects that involve the

construction of new floor area exceeding 25,000 square metres or
something to be done to such floor area. A project may involve the exterior
alteration or exterior decoration of a building, such as the refurbishment of
the Forum Theatre, so long as the building has a gross floor area of 25,000
square metres.

Application of interpretation to the facts

59

The next issue to determine is whether the permit application involves one
development or project, or two. Should the two components of the
application relating to the new Forum Hotel proposal and the refurbishment
of the Forum Theatre be disaggregated for the purpose of determining the
responsible authority?

60

I agree with the permit applicant that clause 2.0 of the schedule to clause
61.01 does not require there to be a development of a gross floor area
exceeding 25,000 square metres. If that were the intention, the preposition
with would be replaced with the preposition of or the word
comprising or the phrase consisting of. Rather, clause 2.0 requires
there to be an application in relation to a development with a gross floor
area exceeding 25,000 square metres. It does not require something
positive to be done to the floor area itself.

VCAT Reference Nos. P1684/2014 & P2208/2014

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61

However, I disagree with the permit applicant that because the permit
application is for a development on both sites in conjunction with one
another, the sites ought not be disaggregated.

62

It was said on behalf of the permit applicant that one is the purchase price
for the other. It was submitted that the most important connection between
the existing Forum Theatre and the proposed building is the net community
benefit that will be achieved by the overall proposal, a critical component of
which is the proposed refurbishment of the Forum Theatre. The
refurbishment of the Forum Theatre is made possible by the proposed hotel
building: Its refurbishment is therefore not offered without the proposed
building.

63

In my view, it will be a question of fact in each case as to whether there is

an application in respect of a development or project involving buildings
with a gross floor area exceeding 25,000 square metres.

64

Whether the community benefit that will flow from the refurbishment of the
Forum Theatre is a sufficient price to pay for granting a permit that
allows a development of 107 metres to exceed the discretionary height limit
of 40 metres by 67 metres is a matter that will need to be considered in the
context of deciding whether or not a permit should be granted. It is not a
matter that affects the jurisdictional issue of who is the correct responsible
authority to make this decision.

65

In the present case, although a single permit application has been made for
the new hotel building and refurbishment of the Forum Theatre, there is no
material connection between the works proposed for the Forum Theatre and
the works to be carried out to construct the hotel building. The existing
MTC building and the Forum Theatre building are on two separate parcels
of land, with separate owners. The proposed demolition of the MTC
building does not have any effect upon the structure of the Forum Theatre
building. The proposed hotel development is not physically nor
functionally connected to or integrated with the Forum Theatre building.
All the supporting material for the hotel building assesses it without any
linkage to the Forum Theatre.

66

The NOD relates only to the proposed hotel building and demolition of the
existing MTC building. It does not authorise any of the works for which a
permit is required under DDO2 in respect of the Forum Theatre
refurbishment works. The NOD relates only to that part of 150 162
Flinders Street that will be included in the title for the land on which the
hotel building stands, namely the air space accommodating the cantilevered
section of the hotel building.

67

I find that the two aspects of the permit application, namely the new hotel
building and demolition of the MTC building, and the refurbishment works
to the Forum Theatre are two separate developments or projects. The only
connection between the two is that one is stated to be the price for the
other. However, in a planning sense, this does not make the two projects an

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integrated development for the purpose of determining who the responsible

authority is.
68

In my view, separate development proposals are not rendered integrated

simply because they are included in the same permit application. Just as a
single permit application may include an application for multiple
permissions required for a single project,13 there is nothing in the Act or
Regulations that would necessarily preclude a single application form being
used to seek permission for two separate projects. It is not the normal
practice and would be administratively cumbersome to process, but I see no
lawful impediment to a single application being made for what are, in
effect, separate projects requiring separate permits.

CONCLUSION

69

My conclusion is that the permit application was an application for two

developments or projects:

Demolition of the MTC building and development of a multi

storey building comprising a residential hotel, dwellings, retail,
office and business identification signs, variation to loading bay
requirements and variation of the bicycle parking rates in respect
of the property at 17 25 Russell Street, Melbourne and that part
of 150 162 Flinders Street containing the cantilevered section
of the new building; and

Exterior works to the Forum Theatre at 150 162 Flinders

Street, Melbourne, including reinstatement of the c.1928
canopies and ground floor facades, including stall boards and
post boxes, the recladding of the facades and the reinstatement of
the original lit signage to Flinders Street pursuant to clause
43.02-2 (DDO2).

70

I find that the application in relation to the new hotel building is an

application in relation to a project with a gross floor area of 19,620 square
metres, which is less than 25,000 square metres. Accordingly, I find that
the responsible authority for this development is the City of Melbourne.

71

I find that the application in relation to the refurbishment of the Forum

Theatre is an application in relation to a project with a gross floor area of
6,387 square metres, which is less than 25,000 square metres. Accordingly,
I find that the responsible authority for this development is the City of
Melbourne.

72

As a result, it is appropriate to make the declarations sought by the council

about the relevant responsible authority with appropriate modifications.

73

As a consequence of these declarations, I find that the NOD issued by the

Minister for Planning on 1 September 2014 is void because the Minister
was not the responsible authority and lacked power to make this decision.

13

Sweetvale Pty Ltd & Ors v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83

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It is appropriate to make a declaration to this effect and direct the Minister

to refer the application to the council for consideration and determination.
74

There was no debate at the hearing about the consequences of a finding that
the Minister was not the responsible authority. The fact that the Minister
lacked jurisdiction to make a decision does not deprive the Tribunal of
jurisdiction to consider an application for review having regard to the
provisions of section 4(2)(b) of the Victorian Civil and Administrative
Tribunal Act 1998. However, it would not be appropriate to continue with
hearing the merits of the application for review in application P1684/2014
in the absence of its consideration by the proper responsible authority,
namely the Melbourne City Council.

75

The difficulty with striking out the application for review on the basis that it
is misconceived is that the application is made by objectors under section
82 of the Planning and Environment Act 1987. To strike out their
applications for review would still leave the NOD unresolved albeit there
would be a declaration about its validity and no permit could issue.

76

In my view, the most appropriate course of action would be to make an

order to set aside the decision under review in application P1684/2014 and
remit it to the correct decision-maker pursuant to section 51(2)(d) of the
Victorian Civil and Administrative Tribunal Act 1998.

Helen Gibson
Deputy President

VCAT Reference Nos. P1684/2014 & P2208/2014

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