1. The scheduled hearing date of 20 August 2007 is vacated.
2. The application for review is re-listed for hearing on 24 October 2007 for three (3) days before a legal member and a planning member.
3. Within ten (10) business days of the date of this order, the Responsible Authority must serve on the applicants and file with the Tribunal a statement indicating, on the basis of the declaration made in P1946/2007, under which provisions of the Port Phillip Planning Scheme the Responsible Authority considers that a permit is required for the proposed use or development for a skate park on the land, and/or the basis of any claimed exemption.
4. Not later than ten (10) business days before the date listed for the hearing, each party must serve on the other parties and file with the Tribunal a copy of the statement of evidence or report of each witness, whether that witness be an expert or a lay witness, upon which that party intends to rely at the hearing not yet filed and served.
5. Liberty to apply.

Ms Susan Brennan of counsel instructed by Ryan Commercial Lawyers.

1. Given the need to provide a prompt decision due to a scheduled hearing on 20 August 2007 (albeit now to be vacated), these reasons are in relatively short form.
2. Port Phillip City Council (the Responsible Authority) has applied to itself for a planning permit to construct a skate park and urban plaza facility on land at 72 Fitzroy Street, St Kilda.
3. The land forms part of the Albert Park Reserve, permanently reserved under the Crown Land (Reserves) Act 1978.
4. By reference to the officer report, it is evident that:
   • The land is within a Public Park and Recreation Zone (PPRZ) and subject to a Heritage Overlay;
   • The permit has only been sought under the Heritage Overlay;
   • The Responsible Authority did not consider a permit was required under the PPRZ on the basis that the Council is a 'public land manager' (as defined in the Port Phillip Planning Scheme) in relation to the land, by virtue of a lease and Service and Tenancy Agreement granted by Parks Victoria.
5. The permit application was subject to numerous objections. Following the Responsible Authority's decision to grant a permit on 24 April 2007, five applications for review were lodged with this Tribunal in proceeding P1174/2007, and scheduled for hearing next Monday 20 August 2007.
6. On 2 August 2007, these five objectors belatedly sought a declaration under s 149B of the Planning And Environment Act 1987 to the effect that the Council is not a 'public land manager' for the land in question, and a permit is required for both use and development under clause 36.02 of the Planning Scheme (ie the PPRZ). Ms Brennan for the applicants argued that the Council's decision, being limited only to a consideration of the development under the Heritage Overlay, was ultra vires and void, and the permit application should be remitted for reconsideration by the Council according to law.
7. This s 149B application, in proceeding P1946/2007, was brought on for a 'prompt final hearing' at the practice day on 10 August 2007.
8. Ms Brennan provided detailed written submissions in support of the application, and referred me to a number of authorities. Mr Pitt for the Responsible Authority argued that the s 149B application was a delaying tactic, and that the issue ought properly be dealt with 'in the running' of the scheduled hearing. Alternatively, he argued that the consequence of an adverse finding did not prevent the Tribunal from still considering the planning merits of the proposal at the hearing under whatever provisions of the planning scheme might ultimately be determined to apply. It is fair to reflect that Mr Pitt did not address in any detail the underlying issue of whether the Council was in fact a 'public land manger' - perhaps it appears under the mistaken apprehension that the matter would not be dealt with as a 'prompt final hearing' despite this being evident from the applicant's Practice Day Request.
9. I consider that the issue raised in the s 149B application is deserving of being dealt with as a preliminary matter. It potentially affects the range and extent of matters to be considered by the Tribunal in assessing the proposal, and thus the evidence and submissions to be prepared and presented by the parties.
10. In my view, based on the submissions made to me, I do not consider that the Council is a 'public land manager' of the land at 72 Fitzroy Street, St Kilda for the purpose of the planning application. Briefly my reasons are as follows:
    • A 'public land manager' is defined in clause 72 of the planning scheme as:

The Minister, government department, public authority or municipal council having responsibility for the care or management of public land. In relation to Crown land reserved under an Act and managed or controlled by a committee of management, other than Parks Victoria or a municipal council, it means the Minister administering that Act and does not include the committee of management.

• It is common ground that Parks Victoria has the primary responsibility for the care and management of the Albert Park Reserve as the appointed committee of management under the Crown Land (Reserves) Act 1978, and under a 2001 management plan. Parks Victoria is clearly a 'public land manager' under clause 72.
• I accept that there can, in some circumstances, be more than one 'public land manager'[1] for a particular piece of land. For example, a water authority could conceivably have a statutory imprimatur to manage public land as a drainage reserve, despite the land having a function as public open space primarily managed by another agency. However, I do not believe those circumstances exist here. There is no evidence, for example, that the Council has been vested with some formal power or responsibility to co-manage this public land jointly with, or separately in addition to, Parks Victoria.
• More particularly, there is no evidence that the Service and Tenancy Agreement creates a power or responsibility in the Council to care and manage public land, as opposed to conditionally leasing part of the land for a limited use and development. The terms of the Agreement contain nothing particularly unique which reflects a 'public land manager' status being granted to the Council, as opposed to any other person (public or private) having an area of the reserve granted by lease in accordance with the Crown Land (Reserves) Act 1978. I have reviewed the whole Agreement in reaching this conclusion, and generally endorse Ms Brennan's summary of its relevant provisions. The Agreement in my view treats the Council as a Tenant rather than a co-carer or manager of the land as public land, and a high level of control is clearly retained by Parks Victoria.
• I do not accept Mr Pitt's argument that a lease arrangement in itself creates a 'public land manager' status. It would be an odd outcome in my view if the formal care and management of public land contemplated by the definition of a 'public land manager' in clause 72 could be so easily transferred. Although not wholly determinative, the VPP Practice Note on 'Applying the Public Land Zones' also places a narrow construction on what might be a use or development 'by or on behalf of' the public land manager.

1. As the party seeking to avail itself of a permit exemption, the Responsible Authority bears the onus of satisfying me that it is a public land manager and entitled to the exemption. This is particularly the case where the Council is both the permit applicant and also the Responsible Authority, and where perhaps a more conservative approach should be adopted in the case of doubt to ensure a transparent process. The Responsible Authority has not discharged the onus in this case. However, in the absence of broader argument or a view from Parks Victoria, the declaration I have made is limited to a finding on the material before me that the Council is not a public land manager in relation to this specific permit application.
2. Ms Brennan indicated that, if I was to find that the Council was not a public land manager, I should make a further declaration that the use and development of the skate park requires a permit under clause 36.02. I decline that invitation. There was no argument before me from either party on the proper characterisation of the proposed use, nor (despite the Council not being a 'public land manager') whether a permit exemption might still apply to some or all of the proposed use or development under some other part of clause 36.02, or be exempt under some other provision of the planning scheme such as clause 62. In the consequential orders I have made, I have included a direction in proceeding P1174/2007 to promptly obtain the Responsible Authority's view on these matters, so that any debate can be aired and determined at the ultimate merits hearing. The Tribunal will be constituted to include a legal member should such issues arise.
3. I do not agree with Ms Brennan that the consequence of my finding on the 'public land manager' issue is that the matter ought be remitted to the Responsible Authority for reconsideration. I accept Mr Pitt's argument that the Tribunal's hearing of the merits of the permit application is a hearing 'de novo', and the Tribunal's jurisdiction is not lost if the Responsible Authority's decision is incomplete or even invalid[2].
4. Both the Council's and objectors' views on the proposed skate park are well known. There is no justification for a lengthy delay in having the merits finally determined by the Tribunal. However, there is a clear prospect that my finding on the 'public land manager' issue will affect the range and extent of matters to be canvassed at the merits hearing, including the raising of broader planning considerations. Given the Responsible Authority's decision was made solely under the Heritage Overlay, it has only filed an expert report on heritage matters. No party has filed any expert report on broader planning considerations. This raises issues of procedural fairness, and potentially affects the membership of the Tribunal that should best be constituted to hear and determine the matter.
5. In the circumstances, whilst the Council believes the 'public land manager' issue has been raised as a delaying tactic, I believe that it is unreasonable to expect any party to be properly prepared for a hearing next Monday. Procedural fairness in my view dictates that all parties have an opportunity to further prepare for the hearing taking into account my finding on the 'public land manager' issue, and (if they wish) to prepare and file further expert evidence. I have allowed for this in the consequential orders I have made in P1174/2007. Equally, a balance should be struck so that the consideration of the underlying merits of the permit application is not unduly delayed. I have therefore re-listed the matter for hearing in October.

[1] see Central Highlands Water v Ballarat City Council [2006] VCAT 1297 at paras 7 & 8 per the then President Justice Morris.

[2] Following generally, Traill v Wodonga RCC (1989) 3 AATR 107, per the then President Judge Jones