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 cancellation.
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.
Melbourne CC v Minister for Planning
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