Picking your decision-maker: Forum Theatre loses Supreme Court appeal

The Supreme Court has dismissed an appeal lodged by developers of the Forum Theatre that VCAT erred by ruling that the responsible authority for their proposed development was the City of Melbourne, and not the Minister for Planning.

A single planning permit application had been made to renovate the Forum Theatre site at 150-162 Flinders St and to redevelop the former Melbourne Theatre Company site at 17-25 Russell St by demolishing the existing building and constructing a new 32-level hotel building in its place. The former Minister for Planning (Matthew Guy) approved the proposal.

The City of Melbourne sought a review of the minister’s decision and challenged the minister’s authority to make the decision. It contended that, in fact, there should have been two applications for permits made, not one. By combining the two sites into the one application the total floor space of the proposal exceeded 25,000 square metres, which is the threshold to establish the minister as responsible authority.

In dismissing the applicant’s appeal, the court said it was appropriate “for the tribunal to enquire whether the buildings the subject of the permit application formed part of a common project or were directed to a common purpose to an extent sufficient to justify the gross floor areas of those buildings being aggregated for the purposes of the cl 61.01” (which is the relevant section of the planning scheme that determines who the responsible authority is).

The council’s challenge to the minister’s decision in this matter occurred at a time when there was consternation at town hall on its lack of involvement in major development proposals that were being approved by the minister.

Since then, there have been a number of changes to improve the dialogue between the council and the minister on major development proposals. Also the council is now a formal “referral authority” under the planning scheme so that applications exceeding 25,000sqm must be referred to the council for comment (though there is no right of veto).

The effect of the tribunal’s ruling was to void the minister’s decision to grant a permit. Now that this has been confirmed by the Supreme Court, a new application, or new applications, for permits have to be made. It will be interesting to see how the developer proceeds.

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