Forum Hotel and Forum Theatre – can two projects be one?

The Victorian Civil and Administrative Tribunal  (VCAT) has last week considered the operation of Clause 61.01 which makes the Minister for Planning the responsible authority for certain planning applications within the City of Melbourne. 

The permit applicant sought permission for:

• The demolition of the former MTC building in Russell Street and the construction of a multi story hotel and office building that would partly cantilever over the Forum Theatre, and
   
• Works to the exterior of the Forum Theatre such as reinstating the 1928 canopies and facades.

Clause 61.01 provides that the Minister for Planning is Responsible Authority for   ‘developments with a gross floor area exceeding 25,000 square metres’

 The Minister determined the gross floor area of the development to be 26,007m2, being the combined floor area of the proposed hotel and the existing Forum Theatre.

 The applicant Council and objectors argued that the Minister did not have the power to issue the notice of decision as the project did not fall within the description of a development with a gross floor area exceeding 25,000m2.  They contended that the permit application related to not one project but two – the multi-story building of 19,620m2 and the Forum Theatre with a floor area of 6,387m2.

 The matter turned on the meaning of ‘developments’ in Clause 61.01.  The Tribunal held that ‘developments’ in this context meant ‘development’ or ‘project’ rather than applying the broad definition of ‘development’ under the Planning and Environment Act 1987.

 As a matter of fact, the Tribunal then held that the works for the hotel and works to the theatre constituted separate projects or developments.   A consequential finding of this is that a single permit application form can validly relate to multiple developments or uses though the Tribunal noted that this could be ‘administratively cumbersome’. 

The Tribunal declared the Notice of Decision issued by the Minister was void and the permit application was remitted back to the City of Melbourne, the proper responsible authority. 

This is the first time that the Tribunal has considered the operation of the Minister’s powers under Clause 61.01 in any detail.  The decision is important as permits ‘issued’ by the wrong responsible authority would be susceptible to cancellation proceedings and the consequences that may flow. 

The decision also closes a potential loop hole whereby distinct developments could be aggregated under a single permit application such that a permit applicant could select its preferred responsible authority within the relevant municipality.

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au

John Hannagan
Senior Associate
Harwood Andrews
T: 03 5225 5202
E: jhannagan@harwoodandrews.com.au