Forum Theatre Holdings Pty Ltd v MCC
[2016] VSC 534
•6 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2015 02280
| FORUM THEATRE HOLDINGS PTY LTD | Applicant |
| v | |
| MELBOURNE CITY COUNCIL & ANOR | Respondent |
---
JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3, 4 & 5 February 2016 |
DATE OF JUDGMENT: | 6 September 2016 |
CASE MAY BE CITED AS: | Forum Theatre Holdings Pty Ltd v MCC & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 534 |
---
VALUATION, PLANNING & COMPENSATION LIST – Application for leave to appeal an order of the Victorian Civil and Administrative Tribunal – Minister for Planning granted a planning permit for the development of two sites under the Melbourne Planning Scheme – Identification of the responsible authority under cl 61.01 of the Melbourne Planning Scheme – Whether permit application involved one development or two – Whether the tribunal failed to correctly address the jurisdictional fact to be found – Whether the Tribunal applied the wrong test – Whether irrelevant consideration taken into account – Whether Tribunal erred in law by arriving at a conclusion not open to it – Planning and Environment Act 1987 s 173 – Civil Procedure Act 2010 – Appeal dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gobbo QC with Ms J Trewhella | Planning & Property Partners Pty Ltd |
| For the First Respondent For the Second Respondent For the Fourth Respondent | Ms S Brennan SC Mr A Finanzio SC Mr B Chessell | Brigid Ryan, Legal Counsel, City of Melbourne Harwood Andrews Lawyers In house counsel, DELWP |
HER HONOUR:
Introduction
Forum Theatre Holdings Pty Ltd (‘applicant’) seeks leave to appeal against parts of the Orders of the Victorian Civil and Administrative Tribunal made on 10 April 2015 in two related proceedings, by which the Tribunal declared that Melbourne City Council was the responsible authority for considering and determining each of two projects that it identified at adjacent sites at 17-25 Russell Street and 150-162 Flinders Street, and that the Notice of Decision to Grant a Permit dated 1 September 2014 issued by the Minister for Planning in respect of the development of those sites was void.
A single planning permit application[1] was made to the Minister for Planning on 20 December 2013 that covered land at both 17-25 Russell Street and 150-162 Flinders Street. The proposal for which a permit was sought was described as follows:
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.
[1]Permit application 2013/009973.
The permit application involved a proposal to redevelop the former Melbourne Theatre Company site at 17-25 Russell Street (‘MTC site’) by demolishing the existing building and constructing a new 32 level hotel building in its place, along with a proposal to refurbish the exterior of the Forum Theatre next door.
The Minister decided to grant the permit and issued the Notice of Decision (‘NOD’). The NOD contained a condition (‘Condition 5’) requiring the owner of the Forum Theatre land to enter into an agreement under s 173 of the Planning and Environment Act 1987 (‘Act’) to undertake the external refurbishment of the Forum Theatre, among other things.
The identification of the responsible authority for a planning permit under the Melbourne Planning Scheme is to be found in cl 61.01. Clause 61.01 provides, relevantly, that the responsible authority for the administration and enforcement of the Planning Scheme is specified in the Schedule. Paragraph 1 of the Schedule relevantly provides that the Council is the responsible authority, except for matters listed in paragraph 2. Paragraph 2 provided that the Minister for Planning was the responsible authority for, among other things, ‘Developments with a gross floor area exceeding 25,000m²’.
The permit application was made to the Minister on the basis that the gross floor area of the development for which the permit was sought was 26,007m². This was a composite gross floor area: the gross floor area of the proposed hotel development on the MTC site was 19,620m² and the existing gross floor area of the Forum Theatre was 6,387m².
Four applications for review of the Minister’s decision were lodged in the Tribunal under s 82 of the Act, including one by the Council.[2] The Council raised a preliminary question of law, submitting that the Minister’s decision was void, as the Council was the responsible authority for considering and determining the proposed development, not the Minister for Planning. The Council commenced a further proceeding in the Tribunal pursuant to s 149B of the Act seeking a declaration to that effect.[3]
[2]VCAT Proceeding P1684/2014.
[3]VCAT Proceeding P2208/2014.
In substance, the Council submitted that the permit application was for two separate developments and that the existing floor area of the Forum Theatre should not be included when calculating the gross floor area of the proposed hotel development on the MTC site. While the land that was the subject of the permit application included both the Forum Theatre site and the MTC site, the development requiring planning permission involved the demolition of the existing building on the MTC site and the construction of a new building on that site, but only external works to the Forum Theatre.
The Tribunal concluded that the permit application was an application for two developments or projects. The application in relation to the new hotel building was an application in relation to a project with a gross floor area of 19,620m² and, accordingly, the responsible authority for that development was the City of Melbourne. The application in relation to the refurbishment of the Forum Theatre was an application in relation to a project with a gross floor area of 6,387m² and, accordingly, the responsible authority for that development was also the City of Melbourne. The Tribunal made declarations to that effect.
The Tribunal also made a declaration that the NOD was void because the Minister was not the responsible authority and lacked power to make the decision.
Relevant background
The permit application was made by the applicant, Forum Theatre Holdings Pty Ltd. The applicant is not the registered proprietor of all of the land covered by the permit application. The applicant owns the MTC site, but the land on which the Forum Theatre is situated is owned by a related corporation, Forum Theatre Investments Pty Ltd.
The permit application submitted to the Minister included one set of plans in relation to the MTC site (‘Bates Smart plans’) and another set of plans and a heritage report in relation to the works for the external refurbishment of the Forum Theatre (‘Trethowan report’).
The Bates Smart plans were accompanied by a design report and various other reports, all relating to the proposed hotel building. The proposed ‘Hotel Forum’ is a 32 storey, 107 metre high building on the MTC site which will contain a residential hotel as well as retail/commercial spaces, penthouse apartments and offices. The hotel building is designed to cantilever some 3.5 metres into the air space above the Forum Theatre.
In the Trethowan report, the refurbishment plans and accompanying heritage impact statement showed the proposed works to the Forum Theatre to be ‘exterior works’, which included ‘the reinstatement of the c.1928 canopies and ground floor facades, including stall boards and poster boxes, the recladding of the facades and the reinstatement of the original lit signage to Flinders Street’. The accompanying heritage impact statement stated that these works would be undertaken ‘in conjunction with’ the redevelopment of the MTC site.
The applicant places considerable emphasis on the words ‘in conjunction with’ in the Trethowan report.
A separate approval process was undertaken in relation to the works on the Forum Theatre as a result of its registration on the Victorian Heritage Register. In December 2013, Forum Theatre Investments Pty Ltd applied for a permit from Heritage Victoria and, on 23 June 2014, Heritage Victoria issued a permit for the external restoration and conservation works, reinstatement of lighting and rooftop signage to its 1929 appearance and the cantilevering of a structure over the northern boundary of the Forum Theatre.
Tribunal’s Reasons
In its reasons for decision,[4] the Tribunal considered the meaning of the expression ‘developments with a gross floor area exceeding 25,000m²’ in the Schedule to cl 61.01. It held that the context required the word ‘developments’ (plural) to be given its ordinary and colloquial meaning, which was ‘projects’. Such projects must involve buildings, because only buildings have a gross floor area. Where projects involve buildings with a gross floor area exceeding 25,000m², the Minister for Planning is the responsible authority for considering and determining any applications under the Planning Scheme. Such projects do not need to physically engage the floor area of the building or buildings. A project may involve the external alteration or decoration of a building, such as the refurbishment of the Forum Theatre, so long as the building has a gross floor area exceeding 25,000m².
[4]Melbourne CC v Minister for Planning [2015] VCAT 370 (‘Reasons’).
The Tribunal then moved to consider whether the permit application involved one development project or two, posing the question, ‘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?’(the ‘disaggregation question’).
Having expressed itself to be an agreement with the permit applicant that the words in the Schedule to cl 61.01 did not require something positive to be done to the floor area itself, the Tribunal said:[5]
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 to be disaggregated.
[5]Reasons [61].
The Tribunal recorded the applicant’s submission that ‘one [the Forum Theatre refurbishment] is the purchase price for the other [the permit to build the hotel]’ and that the most important connection put forward by the applicant was the net community benefit that would be achieved by the overall proposal.[6] However, the Tribunal rejected this as providing a relevant connection for the purposes of deciding who is the correct responsible authority.[7]
[6]Reasons [62].
[7]Reasons [64].
The Tribunal stated that it would be a question of fact in each case whether the application was in respect of a development or project involving buildings with a gross floor area exceeding 25,000m². In the present case, although a single permit application had been made for the new hotel building and the refurbishment of the Forum Theatre, there was ‘no material connection between the works proposed for the Forum Theatre and the works to be carried out to construct the hotel building’.[8]
[8]Reasons [65].
The Tribunal stated that the absence of a material connection was evidenced by a number of matters: the existing MTC building and the Forum Theatre building were on two separate parcels of land with separate owners; the proposed demolition of the MTC building did not have any affect upon the structure of the Forum Theatre building; the proposed hotel development was not physically or functionally connected to or integrated with the Forum Theatre building; and all the supporting material for the hotel building assessed it without any linkage to the Forum Theatre.[9]
[9]Reasons [65].
In addition, the Tribunal observed that the NOD related only to the proposed hotel building and the demolition of the existing MTC building, and did not authorise any of the works for which a permit was required under the relevant Design and Development Overlay (DDO2) for the refurbishment works to the Forum Theatre.[10]
[10]Reasons [66].
Accordingly, the Tribunal found that the two components of the permit application, namely, the demolition of the MTC building and the new hotel building (on the one part) and the refurbishment works to the Forum Theatre (on the other part), were two separate developments or projects for the purposes of cl 61.01 of the Planning Scheme. The only connection between the two was that one was said by the applicant to be the ‘price’ for the other. This did not make the two projects an integrated development for the purpose of determining who was the responsible authority under the Planning Scheme.[11]
[11]Reasons [67]-[68].
Proposed Grounds of Appeal
The proposed grounds of appeal were substantially modified just prior to and again at the hearing of the application for leave to appeal. This untidy and confusing evolution was reflected in the form of some of the grounds themselves, which appeared to overlap in some respects and were unclear in others. In substance, as I understand them, the proposed grounds raised three issues:
(a) whether the Tribunal asked itself the wrong question or applied the wrong test when it asked the disaggregation question (grounds 1 and 2);
(b) whether the Tribunal took into account an irrelevant consideration when it referred to the NOD (ground 3); and
(c) whether the Tribunal failed to consider or to ‘properly’ consider a number of matters, including factors and arguments advanced by the applicant, establishing a connection between the two components of the permit application (grounds 4, 5 and 6).
It was common ground that whether the permit application was an application for a development with a gross floor area exceeding 25,000m² was to be ascertained principally by reference to the permit application itself. The scope and content of the permit application had to be determined objectively in accordance with its terms and in the light of the planning controls that required the planning permit. Where the permit application incorporated extrinsic material, that material had also to be taken into account in determining the scope of the application.
Grounds 1 and 2
Submissions
By grounds 1 and 2, the applicant contends that the Tribunal erred in law in failing to correctly address the jurisdictional fact to be found or, alternatively, erred in law by imposing the wrong test and/or in asking the wrong question in relation to the jurisdictional fact to be found. The jurisdictional fact to be found was, of course, who was the responsible authority for the purpose of determining the permit application.
The applicant submits that there was a fundamental flaw in the Tribunal’s approach to the jurisdictional question, in that the Tribunal sought to find a justification for splitting into two parts a project which was, prima facie, a single project. This involved the Tribunal undertaking a task that was not the task called for by the Tribunal’s own interpretation of cl 61.01. The Tribunal did not consider the question of jurisdictional fact that it had identified,[12] namely, ‘whether there is an application in respect of a development or project involving buildings with a gross floor area exceeding 25,000m²’. Instead, so the applicant contends, the Tribunal asked itself whether the permit application should be disaggregated.
[12]Reasons [57], [58] and [63].
According to the applicant, the disaggregation question proceeded on the basis that there were two components to the project and the applicant had to show why the two components should not be disaggregated. In asking the disaggregation question, the Tribunal approached its task in a way which predetermined the answer. In fact, so the applicant contends, the Tribunal ought to have looked at what the permit application disclosed as the project. It did not matter that there were two components to the project; the question was whether there was a project.
In this context, the applicant submits that in ordinary parlance, the word ‘project’ does not carry with it any notion of an indivisible whole. Many large projects are capable of being divided into two or more parts, particularly where an existing development is to be retained or altered and a new development created. The fact that a project can be split into parts or disaggregated does not prevent it from being one project.
According to the applicant, answering the jurisdictional question involved addressing the following constituent parts of cl 61.01:
(a) Was the permit application in relation to a project?
(b) Was the project a project involving a building or buildings, existing or proposed?
(c) Was the project a project involving a building or buildings, existing or proposed, with a gross floor area exceeding 25,000m²?
The applicant submits that in answering these questions, the Tribunal was required to determine what the permit application materials objectively disclosed about the intended project. While the Tribunal set out at paragraphs 19 to 25 of the Reasons what was in the permit application, it made no attempt to summarise that information by way of describing a project. Had it done so, the Tribunal would have answered, or could have answered, the above questions in the affirmative.
According to the applicant, the Tribunal’s own construction of cl 61.01 allowed for works in respect of two buildings and exterior alteration or redecoration of an existing building. The Tribunal’s construction of cl 61.01 did not rule out land in more than one ownership or require all elements of a project to be carried out contemporaneously. It did not involve any reference to connection, or impose any particular limitation having regard to a particular type or extent of connection. There was therefore a real prospect that had it asked the right questions in the right order and answered them in an analytical way, the Tribunal would have reached a different conclusion.
Analysis
The Tribunal had to decide whether the permit application was for a development with a gross floor area exceeding 25,000m². The respondents argued that the application was not for a single development with a gross floor area exceeding 25,000m², as there was no physical connection, integration or functional relationship between the external works proposed for the Forum Theatre and the hotel development proposed for the MTC site.
Each of the parties filed and served statements of grounds in the Tribunal and each produced written submissions. These documents framed the question for the Tribunal to be whether the permit application was for two separate projects (each with less than 25,000m² of gross floor area) or a single project (of greater than 25,000m² gross floor area). The parties’ submissions called upon the Tribunal to decide whether the permit application involved a single development of the requisite size, that is, whether it involved one development or two.
This is reflected in the opening sentence of paragraph 59 of the Reasons:
The next issue to determine is whether the permit application involves one development project or two.
The Tribunal articulated the issue by reference to the competing positions of the parties. In this context, it posed the disaggregation question that appears in the next sentence:
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?
Thus, in the context of determining whether the permit application involved a (single) development of the requisite size or two smaller developments, the Tribunal asked whether the two components of the permit application should be disaggregated.
The formulation of the disaggregation question by the Tribunal in paragraph 59 of the Reasons therefore mirrors the way in which the Council and the second respondents formulated their argument and reflects the substance of the matter which the Tribunal was required to consider, and did consider, which was whether the application was for a development with a gross floor area exceeding 25,000m². Having regard to paragraph 59 of the Reasons, it is clear that the disaggregation question is a re‑phrasing of the first sentence, which is an accurate statement of the factual issue that the Tribunal was asked to determine.
It was common ground that a single permit application may seek permission for more than one development. There was no dispute that the application included two elements or components, namely, the hotel development and the Forum Theatre works. If the two components were treated as a single project, then the application involved a development with a gross floor area in excess of 25,000m². However, if the two components were not to be treated as a single project, then the application involved two projects, each with a gross floor area of less than 25,000m².
In paragraphs 47 to 58 of the Reasons, when it considered how cl 60.01 was to be construed, the Tribunal acknowledged that it was possible, as a matter of law, for an application involving a number of elements to constitute a single project for the purposes of cl 61.01. Once the Tribunal accepted this possibility, logically the next question was whether the two components of the permit application did, as a matter of fact, constitute a single project. The answer to that factual question necessarily led to a conclusion relevant to the broader question of whether the permit application fell within the relevant part of the Schedule to cl 61.01 of the Planning Scheme.
In my view, the questions that the applicant submits the Tribunal should have asked itself produce answers that beg the question here in issue. Whether the permit application is for a (single) project with a gross floor area exceeding 25,000m² is not to be answered simply by looking to whether the permit application describes it as such. It is, as the Tribunal said, a question of fact and degree to be determined by reference to what is proposed.
The relevant dot point in the Schedule to cl 61.01 of the Planning Scheme makes the Minister responsible for projects which are of significance, measured by the size of the building or buildings involved. More than one building may be involved. If more than one building, or a building and other types of works, is involved, they must be seen or accepted to form part of a common project or purpose.
In this context, it was necessary 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 cl 61.01. This is a question of fact and degree. The enquiry involved considering whether there were connections between the buildings, including as a result of the carrying out of common works, or functional and physical connections or interdependencies between them suggestive of a common project or purpose. Those connections must, as the Tribunal found, be material, in the sense that they are real and not ephemeral or illusory, and significant, in the sense that they create or signal an identifiable common project or purpose.
The Tribunal’s approach of looking for material connections between the works to the Forum Theatre and those proposed for the MTC site, and whether there were functional or physical connections, was legitimate and necessary.
In his reply submissions, Senior Counsel for the applicant agreed that it was appropriate to examine each building to determine whether they were directed to the same project. He submitted that there needed to be an examination to ascertain whether the works were directed to a common purpose or whether they were ‘completely separate’. However, he submitted that the Tribunal did not ask itself that question but started from ‘the back end’, approaching the question in a negative way with a view to disaggregation.
I have already explained why I do not accept that that is so.
I am satisfied that the Tribunal did not apply the wrong test or ask itself the wrong question when determining whether the permit application was for a development with a gross floor area exceeding 25,000m².
Grounds 1 and 2 are not made out.
Ground 3
Submissions
By ground 3, the applicant submits that the Tribunal erred in law in taking into account an irrelevant consideration in relation to the jurisdictional fact to be found, namely, the NOD.
This ground arises from paragraph 66 in the Reasons, where the Tribunal observed that the NOD related only to the proposed hotel building and the demolition of the existing MTC building and that it did not authorise any of the works for which a permit was required under DDO2 in respect of the Forum Theatre refurbishment works. The NOD related only to that part of the Forum Theatre site that was to be included in the title for the land on which the hotel building was to be constructed, which was the air space accommodating the cantilevered section of the hotel building that protruded over a small part of the Forum Theatre.
The applicant now complains that the Tribunal has used this absence of connection in the NOD as a factor supporting disaggregation. It says that the Tribunal was not entitled to have regard to the NOD as it was an irrelevant consideration, and that it was a vitiating error for it to have done so, because without the NOD there was one less factor supporting the Tribunal’s finding that the permit application contained two separate projects.
The applicant has executed a complete volte face in relation to the relevance of the NOD.
In the Tribunal, the applicant contended that the NOD had a role to play in determining the jurisdictional fact in issue. The applicant relied on the contents of the NOD as providing a basis for the connection that it sought to establish between the works on the two sites. Subsequently, in the original version of the proposed notice of appeal, the applicant alleged that the Tribunal erred in failing to have proper regard to a critical aspect of the NOD, namely, the imposition of conditions that indicated a connection between the two components of the proposal. The applicant did not contend, as it does now, that the NOD was an irrelevant consideration and that the Tribunal erred in law by having regard to it at all.
The applicant now submits that, because the NOD is not a document the role and function of which is to describe what was applied for by the permit applicant, in the context of cl 61.01 and the Tribunal’s articulation of the jurisdictional fact to be found, the NOD was not expressly called up and there was no warrant for its consideration at all.
The applicant contends that it is necessary to look to the objective intention disclosed by the application material and, while there is a capacity to have regard to extrinsic material, that that does not extend to officer assessments or the notice of decision, which is not an evaluative document but is merely a statement of the position of the responsible authority.
The Council’s position was that the NOD falls into that category of considerations that may or may not have some relevance in shedding light on the permit application itself and that it was neither a mandatory nor a prohibited consideration. The NOD was relevant insofar as inferences could be drawn from it which shed light on the permit application.
Both the Council and the second respondents submit that the Court ought not to allow the applicant to advance this ground of appeal if leave to appeal is ultimately granted. They say that it is not in the interests of justice to entertain the ground in the revised form, not just because the point was not taken below, but because it was the applicant that urged the Tribunal to have regard to the NOD in the first place.
Analysis
I have had regard to the applicant’s written submissions in the Tribunal and to the relevant parts of the transcript of the hearing in the Tribunal in which the applicant articulated its case as to the connection between the development of the two sites based on the conditions in the NOD. The transcript makes it clear that the principal connection advanced by the applicant in the Tribunal was that the external refurbishment works to the Forum Theatre were the ‘purchase price’ for the permission to build the hotel on the MTC site. The refurbishment of the Forum Theatre was what had to be provided to secure the permit for the hotel, based on the criterion of net community benefit.
Hence, in the Tribunal, in response to the proposition that there was no physical connection, integration or functional relationship between the external refurbishment works proposed for the Forum Theatre and the proposed development on the MTC site, Senior Counsel for the applicant said:
That assertion is plainly wrong for the following reasons. The application is for developments of both in conjunction with one another, and ought not to be disaggregated, and indeed, one is the purchase price for the other and a large slab of its community benefit justification. The development of 17-25 Russell Street is a proposal to cantilever over the land at 150-162 Flinders Street. The notice of decision given by the Minister in relation to the permit application includes permit conditions requiring firstly, proposed works to the Forum Theatre be undertaken as secured by an agreement to be made under s 173 of the Act, and measures to attenuate noise emissions from the Forum Theatre to guest rooms and apartments of 17-25 Russell Street.
Senior Counsel submitted to the Tribunal that the condition (Condition 5) in the NOD requiring the s 173 agreement was ‘more than adequate’ to provide a framework which had to be implemented, executed and undertaken before ‘one brick is removed from the Russell Street site’.
The applicant now seeks to advance an argument on appeal that is wholly inconsistent with the position that it took in the Tribunal. As a general rule, on appeal a party cannot raise an argument that was not run at trial. In David Nolan v Executive Director, Land Management Policy, Department of Environment and Primary Industries,[13] the Court of Appeal recognised that exceptional circumstances may justify the entertainment of a new point on appeal and that such circumstances might arise where ‘all the facts have been established beyond controversy or where the point is one of construction or of law’,[14] particularly where there would be no prejudice or unfairness to the other party.[15] However, the Court refused entertain the new argument, stating:[16]
The appellant was represented at trial by lawyers and counsel. The appellant did not provide any evidence or submissions as to why the arguments were not run before the trial judge. In the absence of proper explanation, to allow the appellant to raise new arguments that he had the opportunity to bring before the trial judge would be inimical to the proper administration of justice. It would also be contrary to the overarching purpose of the Civil Procedure Act 2010 ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Courts in this State are obliged to give effect to this overarching purpose.
[13][2015] VSCA 301.
[14]Water Board v Moustakas (1988) 180 CLR 491, 497.
[15]Ravinda Rohini Pty Ltd v Krizaic (1991) 30 FCR 300, 316.
[16]David Nolan v Executive Director, Land Management Policy, Department of Environment and Primary Industries [2015] VSCA 301, 55.
The applicant was also represented in the Tribunal by experienced and competent senior and junior counsel. A decision was made to establish a connection between the two sets of works in a particular way. It involved reliance on the terms of the NOD and the imposition of Condition 5. The connection provided by Condition 5 in the NOD was central to the applicant’s case. However, the applicant now submits that the Tribunal was prohibited from having regard to the NOD (and Condition 5), because the NOD was an irrelevant consideration.
In my view, to allow the applicant to raise a new argument of the kind proposed would be inimical to the proper administration of justice and contrary to the overarching purpose of the Civil Procedure Act 2010 ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
In any event, I am not persuaded that the proposed ground of appeal has merit. The NOD was not an irrelevant consideration, largely because the way in which the applicant relied upon NOD made it potentially relevant as objective evidence of the intention underlying the permit application. The NOD was proffered as an explanation of a critical component of the application – the relationship between the two sets of works with one being the ‘price’ for the other – which was left largely unexplained in the permit application itself. In this case, it was necessary to work out what the application was for in circumstances where was some doubt as to a critical element, namely, what does ‘in conjunction with’ mean? The question of the connection between the components was a central part of the Tribunal’s inquiry and the applicant referred to the NOD and its conditions as establishing the connection or link. The applicant thereby arguably adopted the NOD and its terms as objective evidence of its intention.
In these circumstances, the applicant should not be permitted on appeal to assert that the Tribunal made an error of law by having regard to the NOD.
Leave to appeal is refused for ground 3.
Ground 4
Submissions
Ground 4 is that the Tribunal erred in law in making a finding or arriving at a conclusion that was not open, namely, that there was no material connection between the works for the proposed hotel and the Forum Theatre refurbishment.
The particulars to ground 4 refer to the following matters, said to individually and collectively constitute a connection between the works:
(a) the nature and extent of the hotel cantilever over the Forum Theatre land;
(b) the fact that the application documents (specifically, the Trethowan report) included the statement that the Forum Theatre works were proposed to be carried out ‘in conjunction with’ the new hotel;
(c) the fact that there was a single permit applicant;
(d) the application of DDO2 to both sites;
(e) the Bates Smart plans and commentary; and
(f) the arguments around net community benefit.
The applicant submitted that a finding that there was no connection between the two components was not open when there was material that demonstrated a connection between them. The Tribunal could have said that the extent of connection was low or negligible, insignificant or insufficient, but it could not say that there was no connection. According to the applicant, the most obvious factor connecting the components was the commonality of permit applicant. That factor alone connected the works proposed for the one site and the works proposed for the other site. However, paragraph 65 of the Reasons makes no mention of the works being carried out ‘in conjunction with’ one another, the cantilever, the design elements in the Bates Smart plans, or the arguments around net community benefit.
Analysis
In paragraph 65 of the Reasons, the Tribunal stated that ‘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’ and that ‘[t]he proposed hotel development is not physically or functionally connected to or integrated with the Forum Theatre building’. It also stated that the supporting material for the hotel building assessed it without any linkage to the Forum Theatre. In paragraph 67 of the Reasons, the Tribunal stated that, ‘[t]he only connection between the two [aspects of the permit application] is that one is stated to be the “price” for the other.’
In order to understand the Tribunal’s reasoning on the question of ‘connection’, it is necessary to have regard to the flow of its analysis in paragraphs 61 to 68 of the Reasons –
(a) In paragraph 61, the Tribunal stated that while the permit application was for the development of both sites ‘in conjunction with’ one another, that that did not mean the sites ought not to be disaggregated.
(b) In paragraph 62, the Tribunal explained its understanding that the conjunction or connection advanced by the applicant – the one referred to in the phrase ‘in conjunction with’ – was that the Forum Theatre refurbishment was the purchase price for the hotel development and the net community benefit that would be achieved by the overall proposal (the ‘price’ proposition).
(c) In paragraph 64, the Tribunal rejected the ‘price’ proposition as providing a relevant connection for the purposes of deciding the jurisdictional issue pursuant to cl 61.01.
(d) In paragraph 65, the Tribunal moved to consider other possible connections. It considered the significance of the fact that a single permit application had been made, but stated that there was no ‘material connection’ between the two sets of works. In this context, the Tribunal referred to the physical and functional separation between the two sites and the two buildings.
(e) In paragraph 66, the Tribunal rejected the NOD as providing a connection (as had been argued).
(f) In paragraph 67, the Tribunal concluded that there were two separate developments or projects, re-iterating that the only connection was that one was stated to be the price for the other (again, the ‘price’ proposition).
(g) In paragraph 68, the Tribunal again dealt with the fact that the two components (now referred to as development proposals) were included in the same permit application and rejected this as providing a relevant connection.
The Tribunal did not find there to be ‘no’ connection between the two sets of works. It found that there was no ‘material’ connection. It rejected the ‘price’ proposition as constituting a relevant connection when determining whether there was one project or two for the purposes of cl 61.01. It then stated that although a single permit application had been made for the new hotel building and the refurbishment of the Forum Theatre (thereby recognising a connection), there was ‘no material connection’ between the proposed hotel development and the Forum Theatre building in the sense of there being a physical or functional connection between them.
The applicant conceded that any physical or functional connections between the two components were limited. There are no internal walkways or doors between the Forum Theatre and the proposed Forum Hotel; there is no common basement and there are no common roof structures; there are no penetrations into the rear wall of the Theatre as it abuts the new hotel development. However, in oral submissions, Senior Counsel for the applicant took the Court through the Trethowan report and the Bates Smart plans in some detail, pointing out references in that material to the cantilever, to the construction and treatment of the atrium in the new hotel building that abuts the northern wall of the Forum Theatre and to the upgrade of the public space surrounding theatre and the hotel. Having completed this exercise, Senior Counsel said:
Your Honour, if you look at this application, you look at the dimensions, the separations, the proximities and the way in which the architect is blending the new hotel into the urban fabric with particular reference to the way in which the northern wall is to – or that the southern part of the new development and the northern wall of the Forum Theatre is to be taken into account, it just gives every indication of being one scheme. It’s the new hotel all over the old theatre and to say, ‘Well, you’ve got a new hotel that’s really not connected to the theatre at all. No material connection’, well, Your Honour, that’s just not open.
It is true that the Reasons do not delve into the content of the Bates Smart plans or the Trethowan report, and they do not discuss how the cantilever might provide a connection between the two buildings. Nor do they say anything about the atrium or the enhancement of the surrounding public space shown in the Bates Smart plans and/or the Trethowan report.
However, this reflects the way in which the applicant made its case in the Tribunal. The applicant’s written submission included the following:
15.Council also asserts that there is ‘no physical connection, integration or functional relationship between the external refurbishment works proposed for the Forum Theatre and the development proposed on 19-25 Russell Street’.
16.That assertion is plainly wrong for the following reasons:
(a)the application is for developments of both 150-162 Flinders Street and 17-25 Russell Street, in conjunction with one another, and ought not be disaggregated;
(b)the development at 17-25 Russell Street proposes to cantilever over 150-162 Flinders Street;
(c)the Notice of Decision given by the Minister in relation to the permit application includes permit conditions requiring:
i.the proposed works to the Forum Theatre to be undertaken, to be secured by an agreement to be made under s 173 of the Act; and
ii.measures to attenuate noise emissions from the Forum Theatre to the guest rooms and apartments at 17-25 Russell Street.
17.But 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.
…
20.The refurbishment of the Forum Theatre is made possible by the proposed building. Its refurbishment is therefore not offered without the proposed building.
In the course of his oral submissions in the Tribunal, Senior Counsel for the applicant was asked a series of questions by the Tribunal Member concerning what the planning permit authorised if, as was submitted, there was a connection in the form of a single permit authorising not only the construction of the Hotel Forum but also, to the extent necessary under the Planning Scheme, the works to the Forum Theatre. The Tribunal Member observed that the permit did not give any permission for the works at the Forum Theatre. Senior Counsel responded that ‘it did not have to’ [give any planning permission for the works at the Forum Theatre] and emphasised that part of the ‘purchase price’ for the permit was the works to be done to ‘the State’ (meaning the Forum Theatre). When reminded by the Tribunal that the permit did not actually make reference to the works that were proposed to the Forum Theatre, Senior Counsel again said:
The principal connection we rely upon is the essence of the net community – or community benefit gets us over the line in terms of building over a heritage building, and building to 109 metres behind a building on the Register is our refurbishment of the Forum Theatre.
Then, in response to the proposition that there was no physical connection, integration or functional relationship between the external refurbishment works proposed for the Forum Theatre and the hotel development on the MTC site, Senior Counsel referred to the ‘price’ proposition (as per the passage of transcript extracted at paragraph 60 above) and to paragraph 17 of the applicant’s written submissions (set out at paragraph 76 above) describing ‘the most important connection’ between the Forum Theatre and the proposed development to be the net community benefit to be achieved by the overall proposal – again, the ‘price’ proposition.
So far as I can tell, having read the transcript of the hearing in the Tribunal, the applicant’s case did not include any other explanation of how the works were to be carried out ‘in conjunction with’ one another. Nor did it include any explanation of how the cantilever created a connection between the two elements. The Tribunal was not taken through the Bates Smart plans or the Trethowan report as was the Court in this appeal. The applicant’s submissions in the Tribunal centred on the ‘price’ proposition and the net community benefit from the two projects. Only passing reference was made to the cantilever.
In my view, it was entirely reasonable for the Tribunal to proceed on the basis that the ‘in conjunction with’ statement referred to the ‘price’ proposition: the connection between the two elements in the permit application was that the external works to the Forum Theatre were the price to be paid for the hotel development. There is nothing in the permit application materials that provides any other explanation of what the expression means. There is no reference to a common program of works or a suite of common conditions, or any other matter that would bring the two sets of works together. There is no indication in the permit application material of the timing of the works associated with the two elements, there is no suggestion that the works were going to be coordinated or that a common building firm or building practitioners would be engaged, or even that common finance was to be raised.
Further, the Trethowan report, which contains the ‘in conjunction with’ statement, does not treat the MTC site as part of the Forum Theatre site and does not refer to the hotel development as part of the development with which it is concerned. At paragraph 17.2, the report states, under the heading ‘Structural details’, the following:
The Forum Theatre is to remain structurally independent of the new development. There is no connection into the existing Forum Theatre. The Structural Schematic Design Report (see appendix B) states that the overhang of the new building over the Forum Theatre is achieved on a ‘floor by floor’ basis, with elongated blade columns and cantilevered floor slabs at each hotel level. This method ensures that the building remains structurally and visually separate to the existing Theatre. As there are no penetrations or connections into the existing building structure the integrity of the heritage fabric is maintained, and there are no adverse impacts due to the overhang of the proposed building.
Elsewhere, it is noted that due to the relatively small degree of cantilevering and the clearances between the existing facades and the new development, the proposed new building to the rear of the Forum Theatre will have no effect on the Theatre’s significance. It is also noted that the proposed development ‘has a small cantilever over the existing stage area and therefore impinges onto the heritage land. The cantilever is well clear of the Theatre building and will not affect the Theatre’s significance’.
As for the Bates Smart plans, they refer to the ‘subject site’ as the MTC site. The Forum Theatre site is not included in the description of the subject site. The Bates Smart plans refer to the cantilever as a ‘minor’ cantilever that does not impact on the legibility, scale or presence of the Forum Theatre, but merely acts as a backdrop to the Theatre. They also refer to a vertical separation of ten metres between the rooftop of the eastern fly tower of the Forum Hotel and the underside of the proposed level floor plate above, and observe that this vertical separation is three times greater than the horizontal length of the cantilever, ensuring ‘generous vertical separation’ between the two buildings. The Bates Smart plans thereby reinforce the separation, rather than establishing a connection, between the Forum Theatre and the proposed Hotel Forum, and treat the two sites as separate development sites.
In the Tribunal, Senior Counsel for the applicant mentioned the cantilever on only four occasions. First, he read from the applicant’s planning report, which stated that the hotel’s tower projection over the Forum Theatre was cantilevered. Next, he read from the Trethowan report, which referred to the upper floors of the development cantilevering over the Forum Theatre. Thirdly, he read from the departmental report, which referred to the cantilever section of the hotel building extending over the heritage restoration site. Finally, he read from the applicant’s submissions referred to in the preceding paragraph. None of these references included any commentary or analysis of the relationship between the hotel cantilever and the Forum Theatre and the cantilever as a connecting factor.
The Reasons make clear that the Tribunal understood there to be a cantilever. The Tribunal’s finding that the Forum Hotel was not physically or functionally connected to the Forum Theatre required both an understanding of the cantilever and a rejection of the cantilever as providing a physical or functional connection between the two sets of works. It can be inferred from the Reasons that the Tribunal did not regard the cantilever as a material connecting factor.
As to the application of DDO2 to both sites, that was clearly taken into account by the Tribunal by reference to what permissions had been sought and what permissions had been given. In any event, the existence of a common planning control, particularly one that covers developments over a large part of central Melbourne, hardly constitutes a significant connecting factor between two sets of works for the purposes of cl 61.01, which requires a common purpose or project.
In my view, the Tribunal considered the factors advanced by the applicant to establish a connection in the particulars to ground 4. It did so in a way that reflected the way in which those factors were put forward. It is clear from the Tribunal’s reasoning that it considered that the ‘price’ proposition was not a relevant connection for the purposes of deciding whether there was one project or two, and that the existence of a single permit applicant was insufficient to establish a single project in the absence of physical or functional connections between the two elements of the application. Having regard to the materials and the way in which the applicant ran its case, it was reasonably open to the Tribunal to conclude there was no relevant connection between the Forum Theatre works and the hotel development works.
Ground 4 is not made out.
Ground 5
Ground 5 is that the Tribunal erred in law in failing to take into account a relevant consideration, namely whether the overall proposal the subject of the permit application triggered the need for a permit pursuant to DDO2 on both sites.
In the particulars to ground 5, it is alleged that the Tribunal erroneously found that the NOD did not deal with permission for the Forum Theatre under DDO2, without considering what had been applied for.
The statement of the ground and the particulars do not match, in my view. I have dealt with the putative argument that the Tribunal erred in referring to the NOD in relation to ground 3. I take the complaint in ground 5 to be that the Tribunal failed to take into consideration that both the Forum Theatre works and the hotel development works required a permit under DDO2.
I reject this proposition. The Tribunal clearly knew that the requirements of DDO2 applied to both sites. It referred to those requirements in discussion with counsel. However, it can be inferred that the Tribunal did not consider the application of DDO2 to both sites to create a material connection between the works. This is hardly surprising, as DDO2 has broad application. The fact that a permit is required by DDO2 for two developments does not go any distance to making them part of the same project.
Ground 5 is not made out.
Ground 6
Ground 6 is that the Tribunal erred in law in failing to give proper consideration to the matters and arguments advanced by the permit applicant in relation to the jurisdictional fact to be found.
The matters to which no proper consideration was allegedly given by the Tribunal are:
(a) the nature and extent of the hotel cantilever over the Forum Theatre land; and
(b) the fact that the application documents (specifically, the Trethowan report) included the statement that the Forum Theatre works were proposed to be carried out ‘in conjunction with’ the new hotel.
In oral submissions, Senior Counsel for the applicant said that the allegation that the Tribunal failed to consider its arguments was not to be judged on ‘the Peko-Wallsend relevant/irrelevant considerations principles’, but was more akin to a failure to give proper reasons or a denial of natural justice.
The applicant submitted that the Tribunal treated the ‘price’ argument as the only matter of substance advanced by the applicant in relation to connection. So much, so it submitted, was apparent from paragraph 67 of the Reasons. While emphasis was given to the ‘price’ proposition and the criterion of net community benefit, the Tribunal was nonetheless bound to consider the cantilever and the ‘in conjunction with’ statement when determining the jurisdictional question.
According to the applicant, only a handful of points were advanced on the issue of connection and they were absolutely critical to the applicant’s case. The cantilever and the fact that the works were to be done ‘in conjunction with’ one another were important in deciding whether or not this was one project. These matters were raised in the Tribunal, but the Reasons dealt only with one basis put forward, namely, the ‘price’ argument. Had the Tribunal considered the other matters, it might well have come to a different view about whether there was one project or two.
Analysis
Ground 6 is based on the contention that the Tribunal ignored or overlooked arguments made by the applicant. The arguments in question were those relating to the cantilever and the ‘in conjunction with’ statement in the Trethowan report.
For the reasons I have already given, the Tribunal did not fail to give attention to the ‘in conjunction with’ statement. It was treated as being based on the ‘price’ proposition, which was rejected, as providing a relevant connection for the purposes of deciding whether there was one project or two in the context of cl 61.01.
Furthermore, the attention given by the Tribunal to the cantilever was proportionate to the part that the cantilever played in the applicant’s submissions, both written and oral. I have already dealt with the Tribunal’s treatment of the cantilever in relation to ground 4. The applicant barely mentioned the cantilever and did not proffer any analysis of how it created a relevant connection between the two elements.
Insofar as the complaint is one of inadequacy of reasons for decision, I am satisfied that the Tribunal’s path of reasoning is adequately exposed in the Reasons, having regard to the way in which the case was argued before it. I have set out at paragraph 71 the path of reasoning exposed in the Reasons.
Insofar as the complaint is that there was a breach of natural justice, such a complaint cannot be sustained. The applicant had ample opportunity to be heard on the connections that it advances under this ground.
Insofar as the issue might be cast after all as one of failing to take into account relevant considerations, it is necessary to distinguish failure to ‘properly’ take into account a relevant consideration. Questions of appropriate weighting are questions for the decision-maker, not for the court on review. As was noted by Aronson and Groves:[17]
It remains true that it might not suffice for a reasons statement merely to advert or refer to a mandatory factor , but that is not because the factor might have been undervalued, but because such recitals sometimes fail to repel an inference that there was in fact no consideration of the mandatory factor.
[17]Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (Thomson Reuters, 5th ed, 2013) 284 [5.150].
The authors went on to say:
When the High Court recently said [in Minister for immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174-76] that a mandatory consideration requires thought that is ‘proper, genuine and realistic’, it referred with evident approval to a judgement [Swift v SAS Trustee Corporation [2010] NSWCA 182, [45]] doubting that this extended the reach of the relevancy grounds, and seemed to say that if the gist of the complaint was that the consideration was inadequate, then that was to be assessed under the ‘serious irrationality’ ground.
Nothing in the Tribunal’s reasoning was said to involve ‘serious irrationality’. As I have found, it is not the case that there was ‘no’ consideration at all by the Tribunal of the factors referred to in this ground. I have already explained, in relation to ground 4, why the Tribunal’s consideration of these two matters was as it was, and why there was no error of law. The Tribunal did not consider the ‘price’ proposition to be the only possible connection between the works. The Reasons deal with the question of physical connections in a fairly cursory fashion, but adequately in my view. The Tribunal’s reasoning reflects the way in which the applicant put these matters before the Tribunal.
Ground 6 is not made out.
Conclusion on appeal
Leave to appeal is granted for grounds 1, 2, 4, 5 and 6. None of the grounds is made out. The appeal on those grounds is deemed to have been instituted and heard instanter and is dismissed.
Leave to appeal is refused for ground 3.
Notice of contention
The Council filed a Notice of Contention for the purpose of establishing that any error made by the Tribunal in deciding that there were two projects rather than one was not a vitiating error. It submitted that, on the proper construction of the Schedule to cl 61.01, the floor area of the Forum Theatre was not part of the development.
As the Tribunal did not err in law in deciding that there were two projects rather than one, the question of whether any error was a vitiating error does not arise. I will therefore deal with the Notice of Contention only briefly.
The Council submits that the Tribunal erred in interpreting ‘developments with a gross floor area exceeding 25,000m²’ —
(a) as a phrase describing a building which is involved in a project or development rather than as a phrase describing the project or development;
(b) not to require construction of new floor area or something done to floor area; and
(c) to include exterior alteration or exterior decoration of a building so long as the building has a gross floor area of 25,000m².
In substance, the Council submits that the Tribunal erred in finding that the refurbishment of the Forum Theatre is a project with a gross floor area of 6,387 m². It says, accordingly, that if the Tribunal was wrong to determine that the permit application was for two projects, each with a floor area not exceeding 25,000m², then such an error was not a vitiating error because the development was not a development with a gross floor area exceeding 25,000m².
According to the Council, the amount of gross floor area does not describe the building that is the subject of the project, rather it describes the project or development for which permission is sought. The phrase ‘with a gross floor area exceeding 25,000m²’ is a prepositional phrase which functions as an adjective to describe the project or development. The project or development must ‘involve’ that amount of floor area. In other words, the project or development must involve the creation of new floor area or a change in the use of existing floor area. As a result, the floor area of the Forum Theatre, to which no works are proposed, is not involved in the development or project for which permission is sought.
Again, I see no error in the Tribunal’s analysis. The requirement for a ‘gross floor area exceeding 25,000m²’ imposes a threshold. Only developments of a certain size are intended to fall within the purview of the Minister. The size of a development or project must exceed this threshold in order for the Minister to be the responsible authority. The gross floor area is therefore a measure. It is a number used to establish a threshold rather than a physical element of the project. Treating ‘gross floor area’ as an abstract concept is consistent with the definition of ‘gross floor area’ in cl 72 of the Planning Scheme:
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.
Measured from the outside of external walls or even from the centre of party walls, the floor area in question is not an actual physical area but a number or a measure. A requirement to satisfy a minimum gross floor area is therefore not a requirement to physically engage that floor area in the project, either by constructing the floor area or otherwise.
The notice of contention is dismissed.
0
0
0