The usual cause of action to attack the validity of a permit is
to apply to cancel the permit, pursuant to Division 3 of Part 4 of
the Planning and Environment Act 1987. However, in certain
instances, it is worth also considering the utility of seeking a
declaration as an alternative to, or in addition to, applying for
Melbourne CC v Minister for Planning was an application
by Melbourne City Council and others for a declaration to
invalidate the former Planning Minister's decision to grant a
permit for a hotel development and mix of uses at Melbourne's
Forum Theatre building and neighbouring land.
The key issue concerned the floor area of the proposed project.
Under the Melbourne Planning Scheme 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. If the floor area does not exceed 25,000
square metres, the council is normally the responsible authority.
In the permit application 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). The Applicants 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. 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.
There was no debate at the hearing about the consequences of a
finding that the Minister was not the responsible authority. This
contrasts with what would have occurred if Melbourne City Council
had instead applied to cancel the permit, because in cancellation
proceedings a permit applicant can still successfully argue a
permit should not be cancelled because it would not be just for the
permit to be cancelled. This argument can result in a permit being
successfully defended, despite it being issued as a result of some
kind of mistake. This aspect of cancellation hearings creates an
additional 'hurdle' for those seeking to cancel permits,
and may sometimes make seeking a declaration an attractive
alternative to applying to cancel a permit.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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