• VCAT

May 2, 2020

State Government wins Supreme Court decision to replace Melbourne City Council

Melbourne City Council and the Department of Environment, Land, Water & Planning (DELWP) have been taking each other to court since 2014 surrounding a permit for a hotel development at Melbourne’s Forum Theatre and its neighbouring land. The key issue concerned was the floor area of the proposed project. Under the Melbourne Planning Scheme, the Minister of Planning is the responsible authority for considering and determining applications for developments with a gross floor area exceeding 25,000 square metres. If the floor area does not exceed 25,000 square metres, the council normally assess the application and issue the planning permit.  

In the permit application at the Melbourne Forum site, the permit applicant had combined the floor area of the Forum Theatre (6,387 square metres) with the gross floor area of the development scheme for the neighbouring site (19,620 square metres). Melbourne City Council successfully argued that the Minister’s decision to grant the permit was invalid because the floor areas could not be combined in such a way. Initially, The Victorian Civil and Administrative Tribunal (VCAT) held that the hotel development was not physically or functionally connected to the Forum Theatre building. Accordingly, Melbourne City Council was the responsible authority, not the Minister.

However, with The Minister of Planning taking the case to Supreme Court of Victoria, the key issue no longer surrounds the permit for the development at Forum Theatre but Melbourne City Council’s & the state planning departments different interpretation of the Schedule to Clause 72.01 (Responsible Authority for this Planning Scheme) of the Melbourne Planning Scheme. Although the case is still not yet settled, this issue surrounding the interpretation has been evolving over the past six or so months, led by the Victorian Supreme Court’s decision in relation to the Forum Theatre’s permit application.

Previously, the general public’s understanding is that only applications for new developments that exceeds Gross Floor Area of 25,000 sq.m will be considered and determined by the Minister of Planning. However, it has been determined that, other than VicSmart & Subdivision applications, any use or development application that engages a building with a Gross Floor Area greater than 25,000sq.m sits with the Minister for Planning, based on Melbourne City Council’s current interpretation of the provision.

The lack of consistency in how this provision was being interpreted across Melbourne City Council and the State government planning department (and across application types) have caused confusion to those who are looking to apply for planning permits within City of Melbourne. It is important that permit applications are lodged to the correct responsible authority to ensure the statutory authorisations issued by Council or the Minister for Planning are valid and lawful.

The team at CS Town Planning have put together the below to explain the process on how to make applications to the Department of Environment, Land, Water and Planning:

The Best Starting Point: Speak to a Town Planner

A town planner with experience in dealing with Department of Environment, Land, Water and Planning can provide you with advise on what types of applications are assessed by the department. View the full list of applications and decisions on planning permits where the Minister for Planning is responsible for making the decision at this link.  

Preparing for the application

The Department of Environment, Land, Water and Planning (DELWP) do not offer pre-application meetings so it’s important to have professional assistance in the early stages. A professional town planner will be able to confirm and check the requirements before you submit an application to the department. You’ll need to provide different information for different types of permit applications. That might include site plans, elevation drawings or a written report. This information will need to be at professional town planning standard for council to conduct assessments on. A professional town planner will be able to justify your project in a way that the department will be more likely to support your idea, leading to a more seamless approval process. Having a town planner to assist you earlier on, can identify all the requirements right from the start and help you to prepare what is required for you to get your dream design approved.

Below outlines the different stages your town planning application will go through after it has been lodged to DELWP. 

Request for Further Information

After your town planner lodges the application, a planning officer of DELWP will be assigned to assess the application and may advise you (in writing) further information is required. This stage is called Request for Further Information stage, this request is common and 99% of applications will go through this stage. If they do, they will contact your town planner who will then be able to work with you and your other consultants to gather all the required information and provide them promptly to the council. If the information can’t be provided in time, the application won’t be processed further.

Referral Authority

The Minister for Planning will generally seek comments from the local council of the subject property when assessing a planning applications. In specific circumstances, Councils are a Referral Authority for the application, and the Minister for Planning must formally refer the planning application to Council.

Officer’s Report

Once all information required has been lodged and Referral Authorities provided comments, a report will be prepared by the assigned officer. The report assesses the proposal against the relevant planning controls and policies, and contains technical advice used to inform the Minister’s decision.

Minister’s decision

The Minister of Planning will assess the proposal and decide to:

  • Grant a permit
  • Refuse a permit.

A permit can be granted with or without conditions, and a proposal can only go ahead if all conditions are met. For example, a permit for a restaurant might be issued on the condition that a certain number of car-parking spaces are provided. There are opportunities to apply to VCAT for a review such as if a permit condition is unacceptable, similar to normal council applications.