1. The Bates Smart Design Report and plans include a calculation of total "gross floor area", of 26,007 square metres. This calculation consists of the gross floor area of 19,620 square metres for the proposed building at 25 Russell Street, and 6,387 square metres of existing gross floor area for the Forum Theatre site.
2. Whilst the name of the applicant and the owner of the land is given in the permit application as Forum Theatre Holdings Pty Ltd, in fact the two parcels of land are in different ownerships. The land at 25 Russell Street is owned by Forum Theatre Holdings Pty Ltd whilst the Forum Theatre at 150 - 162 Flinders Street is owned by Forum Theatre Investments Pty Ltd.

1. On 23 June 2015, Heritage Victoria issued a permit for 150 - 162 Flinders Street in relation to the external restoration and conservation works, reinstatement of lighting and roof top signage to its 1929 appearance and cantilevering of a structure over the northern boundary, in accordance with specified documents and subject to conditions.
2. On 1 September 2014, the Minister for Planning issued a Notice of Decision to Grant a Permit (NOD) for land at 150 - 162 Flinders Street and 17 - 25 Russell Street, Melbourne to allow:

Demolition of the building at 17-25 Russell Street and development of a multi-storey building comprising a residential hotel, dwellings, retail, office & business identification signs, variation to loading bay requirements and the variation of the bicycle parking rates generally in accordance with the endorsed plans.

1. Condition 3 of the NOD requires the title boundary to the land at 17 - 25 Russell Street to be realigned "to incorporate the southern wall of the tower building including the cantilevered section and must include the air space above RL45 metres on the title to the satisfaction of the City of Melbourne." This means that whilst the address of the permit includes the address at 150 - 162 Flinders Street, the hotel building will be on a separate title, which will include the cantilevered section over this property, and the Forum Theatre will be on its own separate title.
2. Condition 4 of the NOD requires a light and air easement of at least 5 metres in width along the southern extent of the realigned boundary above RL45 metres to be provided on the title to the Forum Theatre at 150 - 162 Flinders Street to the satisfaction of the City of Melbourne.
3. Condition 5 of the NOD requires the owner of the land to enter a section 173 agreement to require, inter alia:
   • The external restoration of the Forum Theatre 150 - 162 Flinders Street, Melbourne to the specifications and requirements specified in any approval granted under the Heritage Act 1995.
   • A defined time frame and cost for the external restoration of the Forum Theatre at 150 - 162 Flinders Street, Melbourne.[6]
4. There is nothing in the NOD which grants permission for the external refurbishment works to the façade of the Forum Theatre required pursuant to DDO2.

1. The issue of who is the responsible authority is a question of statutory interpretation of the meaning of clause 2.0 of the schedule to clause 61.01 and then the application of that interpretation to the facts of the case.

1. Ms Brennan, on behalf of the council, set out the principles of statutory interpretation which must guide me in the interpretation of this provision. They are not in dispute.
   • The relevant starting point is the words of the legislative text.[7]
   • The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.[8]
   • It should be noted that the context (including the mischief which the statute was intended to remedy) is to be considered at the first instance - not only in cases of ambiguity.[9]
   • The duty of a court is to give words of a statutory provision the meaning that the legislature is taken to have intended them to have.[10]
   • The application of rules of statutory interpretation will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something that exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.[11]
   • A construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object.[12]
2. In relation to the interpretation of subordinate instruments, including planning schemes, there is an additional principle, namely that they are to be interpreted bearing in mind their use by practical people skilled in a particular industry. Therefore they ought be construed in light of practical considerations. An interpretation which leads to a reasonably practical result is to be preferred.[13]
3. In essence, the task of construction requires consideration of text, context and purpose.
4. The text to be interpreted is as follows:

The Minister for Planning is the responsible authority for considering and determining applications ... and for approving matters required by the scheme to be done to the satisfaction of the responsible authority in relation to:

• Developments with a gross floor area exceeding 25,000 square metres ...

1. Clause 71 of the planning scheme provides as follows:

A term used in this planning scheme has its ordinary meaning unless that term is defined:

• In this planning scheme.
• In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.

1. Development is defined in section 3 of the Planning and Environment Act 1987 as follows:

(a) the construction or exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings;

1. Section 37 of the Interpretation of Legislation Act 1984 provides that unless the contrary intention appears, words in the singular include the plural and vice versa.
2. Clause 72 of the planning scheme defines gross floor area as:

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.

1. The council submits that the permit applicant should not count the existing ground and basement floor area of the Forum Theatre in the assessment of whether its proposal is properly described as "developments with a gross floor area exceeding 25,000 square metres". Instead, the existing ground and basement floor area of the Forum Theatre should be excluded from the calculation of gross floor area of the proposal which is the subject of the application.
2. The council submits that the correct interpretation of the provision is to make the Minister the responsible authority for proposals which involve either construction of gross floor area of more than 25,000 square metres (new development) or carrying out of works to floor area of more than 25,000 square metres (changes to the floor area itself), but not to the façade within which the gross floor area is contained. It submits that the new gross floor area in this application is for less than 25,000 square metres. The construction or carrying out of works in question is also undertaken to a gross floor area of less than 25,000 square metres. No works are proposed to be carried out to the ground or basement floor area of the Forum Theatre, and no permission is required as part of the application in relation to that floor area.
3. The council submits that the phrase "developments with a gross floor area exceeding 25,000 square metres" requires a different exercise from simply counting up all of the floor area of the existing buildings on the land listed in the permit application. Instead, it requires a calculation of the total floor area which is to be constructed or to which works are to be carried out.
4. The Schwartzs say that the phrase "developments with a gross floor area exceeding 25,000 square metres" is concerned with the size of "developments" in the sense of "projects". However one interprets clause 61.01, the clause is not concerned with wholly different or separate development proposals, the cumulative floor area of which, when added together, exceed 25,000 square metres. Clause 61.01 is concerned with development proposals which, viewed objectively, are an integrated whole. Separate development proposals are not rendered integrated because the applicant has chosen to include them in the same permit application.
5. By contrast, the permit applicant says that the provision should be construed to mean applications connected to developments (including exterior alteration or decoration) accompanying a gross floor area exceeding 25,000 square metres. Clause 2.0 of the schedule to clause 61.01 requires there to be "developments with a gross floor area exceeding 25,000 square metres". Gross floor area is a form of measurement, namely "the total floor area of a building". It does not permit a reading down of the broad definition of "development" to require something positive to be done to the floor area itself.
6. The Minister for Planning takes a similar approach to the permit applicant to the interpretation of the phrase "developments with a gross floor area exceeding 25,000 square metres". He says that the two components of the application should not be disaggregated because the works proposed are part of a co-ordinated program of works.

1. In my view, the question is whether the term "developments with a gross floor area exceeding 25,000 square metres" means "projects with a gross floor area exceeding 25,000 square metres" or some form of development as defined in section 3 of the Planning and Environment Act 1987, such as the construction of a building or the demolition of a building.
2. I have a number of difficulties with defining "developments with a gross floor area exceeding 25,000 square metres" by reference to the definition of development in the Planning and Environment Act 1987.
3. First, the word "developments" (plural) is used as a noun that is described by or qualified by the words "with a gross floor area exceeding 25,000 square metres". It is to be contrasted with the other three dot points within the paragraph describing when the Minister for Planning is the responsible authority.
4. The Minister for Planning is the responsible authority for considering and determining applications. If it was intended that the Minister was to be the responsible authority for considering and determining applications in relation to "development" as defined in the Act, the clause would read: The Minister for Planning is the responsible authority for considering and determining applications in relation to development with a gross floor area exceeding 25,000 square metres.
5. There would be no reason to use the word "developments" (plural). Rather, the wording would reflect the wording used in the second dot point: Development and use of land for or on behalf of a Minister of the Crown.
6. Second, it is self-evident that the purpose of the provision is to make the Minister for Planning the responsible authority for applications for large proposals, which because of their size are of significance to Melbourne. An interpretation by reference to the definition of development in the Act would restrict the types of development for which the Minister was the responsible authority. It would limit them to applications for development within the meaning of the definition in section 3 of the Act that could logically be described as development with a gross floor area exceeding 25,000 square metres. For example, it would exclude subdivision or consolidation of land, or construction or putting up for display of signs or hoardings because none of these types of development can be logically described as being something possessing a gross floor area exceeding 25,000 square metres. By virtue of the definition of "gross floor area" in the planning scheme, only buildings can have a gross floor area. Therefore any development with a gross floor area of 25,000 square metres would need to involve a building or buildings, not a form of development that did not involve a building. This would be contrary to the purpose of making the Minister the responsible authority for large, significant proposals if there were limits on the type of use or development he could deal with even though they were large and significant proposals.
7. The Minister for Planning is not only the responsible authority for considering and determining applications for anything requiring a permit under the planning scheme, but also for approving matters required by the scheme to be done to the satisfaction of the responsible authority in relation to each of the four categories set out in this part of clause 2.0 of the schedule to clause 61.01.
8. If the word "developments" is to be interpreted as meaning "development" as defined in the Act, there is no need to make the word plural because words used in the singular include the plural. This implies that the use of the plural word "developments" is intended to have a different meaning.
9. The planning scheme uses both words "development" and "developments" in different ways, which are not always interchangeable. For example:
   • Clause 11.04-1 refers to "improve decision making processes for State and regionally significant developments". "Developments" in this context does not fit within examples expressed in paragraphs (a) - (f) in the definition. Instead, it is properly interpreted as meaning "projects".
   • Clause 11.13-5 refers to "support a diverse range of tourism development on private land". "Development" in this context does fit within examples expressed in paragraphs (a) - (f) in the definition. However "development" in this context may also be properly interpreted as including "projects".
   • Clause 11.13-5 refers to "support the development of Halls Gap as a resort town and tourism focal point for the region". "Development" in this context clearly does not fit within examples expressed in paragraphs (a) - (f) in the definition. Instead, it is properly interpreted as meaning "growing or advancing" Halls Gap as a resort town and tourism focal point.
10. There are various other examples of context where the word "developments" is properly interpreted to mean "projects". This reflects one meaning of development as defined in the Macquarie Dictionary (4th edition), namely: "a building project, usually large, as an office block, housing estate, shopping complex etc." This can be contrasted to other contexts in the planning scheme where development is used in the sense in which it is defined in section 3 of the Planning and Environment Act 1987, which reflects another of the meanings included in the dictionary, namely: "the act, process or result of developing".
11. In my view, the context of the term "developments with a gross floor area exceeding 25,000 square metres" requires the word "developments" (plural) to be given its ordinary and colloquial meaning of "projects". The projects will need to involve buildings because only buildings can have a gross floor area. But where projects involving buildings with a gross floor area exceeding 25,000 square metres are concerned, the Minister for Planning is the responsible authority for both considering and determining any applications under the planning scheme and for approving any matters required by the scheme to be done to the satisfaction of the responsible authority in relation to such projects. Such applications may involve development as defined in the Act or use or other matters for which a permit is required or where something must be done to the satisfaction of the responsible authority. The Minister is the responsible authority for all such matters in relation to projects involving new buildings or existing buildings with gross floor area exceeding 25,000 square metres.
12. However, such projects do not need to be projects that involve the construction of new floor area exceeding 25,000 square metres or something to be done to such floor area. A project may involve the exterior alteration or exterior decoration of a building, such as the refurbishment of the Forum Theatre, so long as the building has a gross floor area of 25,000 square metres.

1. The next issue to determine is whether the permit application involves one development or project, or two. 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?
2. I agree with the permit applicant that clause 2.0 of the schedule to clause 61.01 does not require there to be a development of a gross floor area exceeding 25,000 square metres. If that were the intention, the preposition "with" would be replaced with the preposition "of" or the word "comprising" or the phrase "consisting of". Rather, clause 2.0 requires there to be an application in relation to a development with a gross floor area exceeding 25,000 square metres. It does not require something positive to be done to the floor area itself.
3. 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 be disaggregated.
4. It was said on behalf of the permit applicant that "one is the purchase price for the other". It was submitted that 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. The refurbishment of the Forum Theatre is made possible by the proposed hotel building: "Its refurbishment is therefore not offered without the proposed building."
5. In my view, it will be a question of fact in each case as to whether there is an application in respect of a development or project involving buildings with a gross floor area exceeding 25,000 square metres.
6. Whether the community benefit that will flow from the refurbishment of the Forum Theatre is a sufficient "price" to pay for granting a permit that allows a development of 107 metres to exceed the discretionary height limit of 40 metres by 67 metres is a matter that will need to be considered in the context of deciding whether or not a permit should be granted. It is not a matter that affects the jurisdictional issue of who is the correct responsible authority to make this decision.
7. In the present case, although a single permit application has been made for the new hotel building and refurbishment of the Forum Theatre, 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. The existing MTC building and the Forum Theatre building are on two separate parcels of land, with separate owners. The proposed demolition of the MTC building does not have any effect upon the structure of the Forum Theatre building. The proposed hotel development is not physically nor functionally connected to or integrated with the Forum Theatre building. All the supporting material for the hotel building assesses it without any linkage to the Forum Theatre.
8. The NOD relates only to the proposed hotel building and demolition of the existing MTC building. It does not authorise any of the works for which a permit is required under DDO2 in respect of the Forum Theatre refurbishment works. The NOD relates only to that part of 150 - 162 Flinders Street that will be included in the title for the land on which the hotel building stands, namely the air space accommodating the cantilevered section of the hotel building.
9. I find that the two aspects of the permit application, namely the new hotel building and demolition of the MTC building, and the refurbishment works to the Forum Theatre are two separate developments or projects. The only connection between the two is that one is stated to be the "price" for the other. However, in a planning sense, this does not make the two projects an integrated development for the purpose of determining who the responsible authority is.
10. In my view, separate development proposals are not rendered integrated simply because they are included in the same permit application. Just as a single permit application may include an application for multiple permissions required for a single project,[14] there is nothing in the Act or Regulations that would necessarily preclude a single application form being used to seek permission for two separate projects. It is not the normal practice and would be administratively cumbersome to process, but I see no lawful impediment to a single application being made for what are, in effect, separate projects requiring separate permits.

1. My conclusion is that the permit application was an application for two developments or projects:
   • Demolition of the MTC building and development of a multi storey building comprising a residential hotel, dwellings, retail, office and business identification signs, variation to loading bay requirements and variation of the bicycle parking rates in respect of the property at 17 - 25 Russell Street, Melbourne and that part of 150 - 162 Flinders Street containing the cantilevered section of the new building; and
   • Exterior works to the Forum Theatre at 150 - 162 Flinders Street, Melbourne, including reinstatement of the c.1928 canopies and ground floor facades, including stall boards and post boxes, the recladding of the facades and the reinstatement of the original lit signage to Flinders Street pursuant to clause 43.02-2 (DDO2).
2. I find that the application in relation to the new hotel building is an application in relation to a project with a gross floor area of 19,620 square metres, which is less than 25,000 square metres. Accordingly, I find that the responsible authority for this development is the City of Melbourne.
3. I find that the application in relation to the refurbishment of the Forum Theatre is an application in relation to a project with a gross floor area of 6,387 square metres, which is less than 25,000 square metres. Accordingly, I find that the responsible authority for this development is the City of Melbourne.
4. As a result, it is appropriate to make the declarations sought by the council about the relevant responsible authority with appropriate modifications.
5. As a consequence of these declarations, I find that the NOD issued by the Minister for Planning on 1 September 2014 is void because the Minister was not the responsible authority and lacked power to make this decision. It is appropriate to make a declaration to this effect and direct the Minister to refer the application to the council for consideration and determination.
6. There was no debate at the hearing about the consequences of a finding that the Minister was not the responsible authority. The fact that the Minister lacked jurisdiction to make a decision does not deprive the Tribunal of jurisdiction to consider an application for review having regard to the provisions of section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998. However, it would not be appropriate to continue with hearing the merits of the application for review in application P1684/2014 in the absence of its consideration by the proper responsible authority, namely the Melbourne City Council.
7. The difficulty with striking out the application for review on the basis that it is misconceived is that the application is made by objectors under section 82 of the Planning and Environment Act 1987. To strike out their applications for review would still leave the NOD unresolved albeit there would be a declaration about its validity and no permit could issue.
8. In my view, the most appropriate course of action would be to make an order to set aside the decision under review in application P1684/2014 and remit it to the correct decision-maker pursuant to section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[3] Clause 2.0 of the schedule to clause 61.01 Melbourne Planning Scheme

[4] This description of the street address appears to be wrong. It should be 19 - 25 Russell Street. However there is a constant discrepancy in the description of the street address in documents relating to the permit application and VCAT proceedings. I do not consider that anything turns on this discrepancy. There is no dispute that the site is the land occupied by the former Melbourne Theatre Company building situated between the Forum Theatre to the east and Cavendish House on the corner of Flinders Lane and Russell Street to the west. In this decision I will continue to refer to this land as 25 Russell Street, Melbourne.

[5] Wind, acoustics, waste management, traffic and transport, ESD management plan, economic impact assessment, boundary re-establishment and site analysis survey, and building regulations compliance report.

[6] It is interesting to note in the context of the present dispute that condition 5 requires the owner of the land to enter into an agreement with "the Responsible Authority being the City of Melbourne" pursuant to section 173 of the Planning and Environment Act 1987. This description of the responsible authority being the City of Melbourne is repeated in condition 6. However, I have placed no weight on this description of the responsible authority in the NOD in determining who is the lawful responsible authority in this proceeding.

[7] Alcan (NT) Alumina Ply Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at paragraph 4 per French J and paragraph 47 per Hayne, Heydon, Crennan and Kiefel JJ.

[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph 69 of the majority judgment of McHugh, Gummow, Kirby and Hayne JJ.

[9] Roads Corporation v McCarthy [2004] VSC 369 at paragraphs [26] - [27] per Osborn J in referring to: Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; and Mason J in K & S Lake City Freighters Ply Ltd v Gordon and Gotch Ltd [1985] RCA 48.

[10] see Project Blue Sky paragraph 78

[11] Lacey v Attorney-General of Queensland [20111 HCA 10 at paragraph 44.

[12] Section 35(a) Interpretation of Legislation Act 1984 (Vic).

[13] See Pearce and Geddes Statutory Interpretation in Australia, 8th edition, at pages 167 - 168

[14] Sweetvale Pty Ltd & Ors v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83