Royal Melbourne Hospital (Redevelopment) Act 1992

Redevelopment project. The Act defines this by reference to the hatched and cross-hatched land on the plan in Schedule 1. It is a staged project covering four categories of works: (a) consulting rooms and microbiology laboratories on the hospital site; (b) accident and emergency facilities, radiology, coronary care, a bone marrow centre, and operating theatres on that site; (c) a central energy supply system for the hospital; (d) a car park underneath the University High School land; and (e) a technical facilities complex on the school site for the school’s use. Road works and other associated works are included. This definition locks the scope of the project; any deviation from these listed elements would not be authorised by the Act.

Hospital site. Schedule 3 describes the Royal Melbourne Hospital site as 4.446 hectares in Parkville, reserved as a “Site for General Hospital” by Order in Council on 26 March 1936. The Act does not alter that reservation, but it permits uses inconsistent with it without compensation.

Strata licensing over Crown land. A “stratum of Crown land” is defined by reference to section 138A of the Land Act 1958, meaning a three-dimensional slice of land below (or above) the surface. The Act allows the Minister to grant a licence for the relevant stratum under the University High School oval (the land shown cross-hatched on Schedule 1, part of the Schedule 2 land reserved for educational purposes). The licence authorises the hospital to enter, use, and develop that stratum for a car park. The term can be up to 50 years. Unlike ordinary Crown land licences, sections 138 and 140 of the Land Act do not apply; instead, only a modified version of section 138A(8) to (10) applies. This is a bespoke tenure arrangement that carves out the underground space from the ordinary reservation and from the normal administrative process for Crown land.

Use despite reservation. Section 6(1) declares that the cross-hatched land “may be used and developed, in accordance with the redevelopment project, for a car park” despite anything in the Crown Land (Reserves) Act 1978, the Land Act 1958, any reservation instrument, or any other Act or law. This is a statutory override of the public trust or Crown reservation. However, the override is not absolute: it is subject to compliance with applicable planning scheme provisions and any licence under section 7. So the reservation is not actually extinguished; it is merely suspended for the specific use and development authorised.

No compensation. Section 8 provides that no compensation is payable by the Crown or the hospital because the hospital uses or develops land in accordance with the Act and any licence, inconsistently with the land reservation. This means that even though the University High School oval was reserved for educational purposes, and the car park use may conflict with that purpose, the school and any other entity with an interest in the reservation cannot claim compensation for the diminution of the reservation’s value. This is a statutory expropriation of any expectancy that the reserved use would be maintained.

Limitation of Supreme Court jurisdiction. Section 9 states that the Act intends to alter section 85 of the Constitution Act 1975 to prevent the Supreme Court from awarding compensation due to inconsistent use of reserved land, and from considering or reviewing the kinds of decisions described in section 39(7) and (8) of the Planning and Environment Act 1987 (as modified by section 4(5) and (6)) and section 5 of this Act. This is a ouster clause, purporting to remove the Court’s supervisory jurisdiction over certain administrative decisions and compensation claims. The effect is to insulate the project from judicial scrutiny except possibly for jurisdictional error or constitutional challenges not addressed by the section.

Royal Melbourne Hospital. The hospital is the primary beneficiary. It gains a long-term property right (a strata licence for up to 50 years) over the underground space under the school oval, without having to purchase or lease the land or pay compensation for the loss of the reservation. It also benefits from a streamlined planning process where the Minister can amend the planning scheme without public exhibition or panel hearings, and from immunity against third-party appeals on EPA decisions. The hospital must comply with the agreement under section 7(4) regarding minimal interference with the school oval, reinstatement of the surface, and continued school access. It must also comply with the licence conditions set by the Minister.

University High School. The school is directly affected because its oval is used for a car park, which is not an educational purpose. The Act provides protections: the hospital must interfere as little as possible with the school’s use of the oval, reinstate the surface after building works (except for exits and exhaust outlets), permit continued use of the oval and the road crossing it after works, and provide a technical facilities complex for the school. However, the school receives no compensation for the loss of the exclusive use of the oval during construction, or for the permanent loss of parts of the surface to exits and exhaust outlets. The school’s future expansion or alteration of the oval may be constrained by the car park underneath.

The Crown (State of Victoria). The Crown is the owner of the land reserved for the hospital and the school. It grants a strata licence over Crown land and assumes no liability for compensation. The Minister (probably the Minister for Health or the Minister responsible for Crown land) gains broad discretionary powers to grant the licence and impose conditions. The taxpayer ultimately funds the car park construction and any decommissioning costs, while the benefits of the redevelopment (hospital services and a car park) accrue to hospital users and staff, and to the school via the technical facilities complex.

Local residents, motorists and the broader public. Residents and motorists in Parkville may benefit from increased parking capacity, but also bear the costs of construction disruption, potential traffic changes, and loss of open space during works. The public has no right to challenge planning amendments or EPA decisions under the Act, so their ability to participate is curtailed. The ordinary planning and environmental safeguards that would apply to a project of this nature are largely overridden.

Private contractors and service providers. The construction of the car park and hospital facilities will be procured through government contracts. Private firms may benefit from the work, but they must comply with the conditions set by the hospital and the licence. The Act does not confer any special right on private entities; it primarily facilitates government works.

Environmental groups and third-party objectors. Section 5 specifically denies these groups the right to appeal EPA decisions. This concentrates the risk of environmental harm on the project unless the EPA itself imposes conditions. The Act thus reduces the accountability of the project to environmental scrutiny.

Duties of the Minister (likely the Minister administering the Land Act or Health Services Act). The Minister must consult the Minister administering the Planning and Environment Act 1987 before granting a strata licence under section 7(4)(a). The Minister must also enter into an agreement or arrangement with the hospital under which the hospital agrees to three matters: interfere as little as possible with the school’s use of the oval, reinstate the oval surface after building works (except for necessary exits and exhaust outlets), and permit the school to continue to use the oval and the road crossing it after works. The Minister may impose conditions in the licence regarding access, use, improvement, maintenance, protection of school surface use, and reinstatement of access routes. These duties are mandatory preconditions to the grant of the licence; if the Minister fails to consult or enter the agreement, the licence would be invalidly issued.

Duties of the Royal Melbourne Hospital. The hospital must carry out the redevelopment project in accordance with the definition in section 3. It must comply with any planning scheme amendments made under section 4, and with any licence conditions under section 7. It must interfere as little as possible with the school’s use of the oval during the project. It must reinstate the oval surface after building works, except for exits and exhaust outlets. It must permit the school to continue to use the oval and the road crossing it after completion. These are continuing obligations that survive the construction phase.

Rights of the hospital. The hospital has the right to use and develop the cross-hatched land for a car park despite the reservation (section 6). It can obtain a strata licence for up to 50 years (section 7). It can rely on the planning amendment power exercised by the Minister (section 4). It can benefit from the limitation on EPA decision challenges: only the hospital (as the subject of the decision) can appeal an EPA decision (section 5). This is a significant procedural right, as it precludes third parties from delaying the project through EPA appeals.

Rights of University High School. The school has the right to continued use of the oval and the road crossing it after building works. It has the right to have the oval surface reinstated, except for the permanent structures of exits and exhaust outlets. It is also entitled to a technical facilities complex as part of the redevelopment project. However, the school has no right to compensation for the loss of surface area or for interference during construction. Its rights are statutory and should be enforceable by the school against the hospital, possibly through the agreement under section 7(4).

Rights of the public and third parties. These are severely limited. Members of the public cannot challenge EPA decisions under section 5(1) unless they are the subject of the decision. They cannot challenge planning amendments because the ordinary notice, exhibition and panel hearing processes are excluded by section 4(3). They cannot seek compensation for the use of reserved land (section 8). The Supreme Court’s jurisdiction to review these matters is purportedly ousted by section 9. The practical effect is that the project is insulated from most forms of legal challenge.

The Act itself does not create any criminal offences or civil penalties. There is no pecuniary penalty for breach of licence conditions, for failing to reinstate the oval surface, or for interfering with the school’s use more than is necessary. Enforcement of the obligations under section 7(4) agreement and licence conditions would be by contractual means (if the agreement is a contract) or by administrative action, such as the Minister revoking or refusing to renew the licence. Section 7(5) allows the Minister to specify conditions in the licence, but the Act does not provide a statutory mechanism for enforcement, such as an injunction or damages. The hospital’s obligations to the school are set out in an agreement that the Minister must enter into; if the hospital breaches that agreement, the school may have a right to sue for breach of contract, but the Act does not confer statutory standing. The practical sanction is the Minister’s control over the licence term (up to 50 years) and renewal. If the hospital fails to comply, the Minister could impose new conditions or decline to renew, but the Act is silent on revocation for non-compliance. This gives the Minister significant leverage, but also creates uncertainty: the hospital has a long-term right, but no guarantee that minor non-compliance will not result in licence modification.

For the planning scheme amendments under section 4, the Act does not provide for enforcement either. Compliance with the planning scheme as amended is enforced through the ordinary provisions of the Planning and Environment Act 1987, not through this Act. Similarly, for EPA decisions, the ordinary enforcement mechanisms of the Environment Protection Act 1970 apply to any conditions imposed in the works approval or licence. However, the limitation on review means that such enforcement actions are unlikely to be challenged by third parties.

The absence of enforcement provisions in the Act is consistent with its nature as a facilitative statute that grants powers and immunities rather than imposing obligations backed by sanctions. The real enforcement risk for the hospital is reputational or contractual, not statutory. For the school, enforcement may require litigation in the Supreme Court, but section 9 limits the Court’s jurisdiction to award compensation; presumably an action for specific performance of the reinstatement obligation would survive, as the Act only prevents compensation claims, not other remedies. The careful reader will note that section 8 only bars compensation “payable by the Crown or the Royal Melbourne Hospital because the hospital uses or develops land in accordance with this Act and any licence issued under it but inconsistently with the reservation of the land”. It does not bar compensation for breach of the agreement under section 7(4). So the school could seek damages for breach of that agreement, if the hospital fails to reinstate the surface or permits excessive interference. However, the costs of such litigation would be prohibitive for a school, and the Act does not give the school a statutory cause of action.

Planning and Environment Act 1987. This is the primary law affected. Section 4 provides a bespoke procedure for amending any planning scheme applying to the redevelopment project land. The Act carves out several key provisions of the Planning and Environment Act: section 12(1)(d) and (e), (2) and (3) (which require notice to specified authorities and referral of amendments); Divisions 1 and 2 of Part 3 (which govern the preparation, exhibition, submission and panel hearing processes for planning scheme amendments); and section 39(1) to (6) (which deals with the tabling of amendments in Parliament and the disallowance procedure). The Bill was passed with absolute majorities, which allowed it to alter section 85 of the Constitution Act, and the explanatory notes confirm that section 39(7) and (8) of the Planning and Environment Act are applied with modifications. The result is a fast-track planning process with no public notice, no opportunity for submissions, no independent panel review, and limited parliamentary oversight. The Minister has complete discretion to impose conditions and can even remove the requirement for a planning permit. This override is specific to the redevelopment project and cannot be used for other purposes.

Environment Protection Act 1970. Section 5 operates as a privative clause, precluding any appeal, review, challenge or questioning of EPA decisions relating to works approvals, licences, permits or any other matter arising under that Act, but only for decisions applying to the redevelopment project. The only exception is that the person who is the subject of the decision (presumably the hospital) may challenge it. This overrides the ordinary appeal rights under the Environment Protection Act (e.g., to the Victorian Civil and Administrative Tribunal or the courts). The section is clear that it has effect despite anything in the Environment Protection Act. This means that neighbours, environmental groups or even the school cannot seek review of an EPA decision to grant a works approval for the car park construction, even if it might cause pollution or other harm. The EPA itself is not exempt from complying with its own Act; it must still make decisions under that Act, but those decisions are effectively unchallengeable by anyone other than the hospital.

Crown Land (Reserves) Act 1978 and Land Act 1958. Section 6(3) provides that the use and development of the cross-hatched land for a car park applies despite anything to the contrary in the Crown Land (Reserves) Act 1978, the Land Act 1958, any instrument reserving land, or any other Act or law. This expressly overrides the reservation for educational purposes that applies to the University High School land under the Order in Council of 30 July 1929. Section 7 further modifies the Land Act 1958: it disapplies sections 138 and 140 (which would otherwise govern the grant of licences over Crown land and require certain procedures), and instead applies a modified version of section 138A(8) to (10) (which deal with strata licences). The ordinary requirements for advertising, public notice or compensation under the Land Act do not apply. This is a significant departure from the general framework for alienation of Crown land.

Constitution Act 1975. Section 9 states that it is the intention of this Act to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation due to inconsistent use of reserved land, and from considering or reviewing the matters described in the modified sections 39(7) and (8) of the Planning and Environment Act and section 5 of this Act. This is a standard ouster clause enacted with the required absolute majorities, as noted in the endnotes. It purports to remove the Supreme Court’s supervisory jurisdiction over those specific decisions and compensation claims. Whether this is fully effective in the face of constitutional limits on ouster clauses (e.g., for jurisdictional error) is a matter for litigation, but the Act intends to preclude all such review.

Health Services Act 1988. This Act is referenced in section 4(1)(a) as the Act administered by the Minister who may recommend the preparation of planning scheme amendments. No provisions of the Health Services Act are directly amended or overridden. The interaction is purely procedural: the Minister administering the Health Services Act (presumably the Minister for Health) may make recommendations to the planning Minister.

Other laws. The Act also provides in section 6(3) that it applies despite “anything in any other Act or law”. This is a sweeping override, but it is limited to the specific use and development authorised. It would not, for example, override the Occupational Health and Safety Act or the Building Act, unless those conflict with the redevelopment project in a way that the Act’s purpose would be frustrated. The Act is not a general immunity; it is targeted at the land reservation and planning/environmental constraints.

The table of amendments in the endnotes states: “There are no amendments made to the Royal Melbourne Hospital (Redevelopment) Act 1992 by Acts and subordinate instruments.” The version as at 11 October 2012 is Version No. 003, but the absence of amendments suggests that the changes from version 001 to 003 were likely only editorial or arising from reprinting, not substantive. The Act has never been amended by Parliament since its enactment in 1992. This is unsurprising for a project-specific Act; once the redevelopment was completed, there was no need to amend it. The Act remains on the statute book, presumably still in force, governing the ongoing use of the car park and the licence. Its lack of amendment means that the original policy choices made in 1992 have not been revisited. For example, the term limit for the licence of 50 years remains fixed; if the licence was granted for the full 50 years from 1992, it would expire in 2042, subject to renewal. The compensation bar and jurisdiction limits also persist, meaning that any current or future disputes about the car park use cannot be litigated in the ordinary way. The Act may be considered spent in the sense that the construction phase is over, but it still authorises the ongoing use and restricts legal remedies. The absence of sunset or repeal provisions is notable; the Act will continue indefinitely unless expressly repealed. This creates a permanent carve-out from the normal planning and reservation regime for that slice of land. The endnotes also reveal that the Act was passed with absolute majorities in both houses on 26 May and 4 June 1992, reflecting the constitutional requirement for overriding section 85 of the Constitution Act.

The Act makes no reference to any litigation, and the source text does not provide any case citations or summaries. Given the Act’s explicit limitations on Supreme Court jurisdiction and third-party appeal rights, the potential for litigation was deliberately curtailed. It is plausible that no reported case law exists concerning this Act, because the privative clauses (sections 5, 8, and 9) were designed to prevent challenges from reaching court. The hospital and the Crown would have strong incentives to resolve disputes administratively or through the contractual agreement under section 7(4), rather than risk the Act being tested in court. However, a careful reader should not assume that no litigation has occurred; the absence of mention in the text simply means we cannot ground any claim here. The analyst can only state that the Act appears to have been structured to minimise litigation, and that no cases are identified in the source. If a practitioner were advising on this Act, they would need to search for any challenges to planning amendments under section 4 or to EPA decisions under section 5 that might have been brought despite the ouster clause. The Supreme Court still retains jurisdiction to consider constitutional limits (e.g., whether the ouster of jurisdiction for jurisdictional error is effective), and it is possible that a challenge was mounted on those grounds. But the source is silent. The limitation on jurisdiction in section 9(b) specifically targets matters under section 39(7) and (8) of the Planning and Environment Act (as modified) and section 5 of this Act. This suggests that the drafters were particularly concerned about challenges to the planning amendment process and EPA decisions. The Act’s litigation history, if any, would likely involve attempts to argue that the ouster clause does not apply because the decision was not made in accordance with the Act, or that the Act itself is invalid for failing to properly alter section 85 of the Constitution Act. The endnotes do record the statement under section 85(5) of the Constitution Act, indicating that the Bill was accompanied by the required statement of intention to alter the Constitution. The passage with absolute majorities is also recorded. So the procedural prerequisites for a valid ouster clause appear to have been met. Nevertheless, the analyst cannot, from the source alone, assert whether any cases have been litigated or what the outcomes were.

No public participation in planning amendments. Practitioners may assume that a planning scheme amendment for a major hospital redevelopment would follow the standard process of exhibition, public submissions, and a panel hearing. Section 4 expressly excludes those requirements. There is no requirement to notify adjoining landowners, the council, or the community. The Minister can approve an amendment on the recommendation of the health Minister, and it takes effect. Any attempt to challenge this on natural justice grounds would be met by the ouster clause in section 9. The only check is that either House of Parliament can exercise its power under section 38 of the Planning and Environment Act to disallow the amendment, but that is a political remedy, not a legal one.

Third-party EPA challenges are impossible. Section 5 is a complete bar: “cannot be appealed against, reviewed, challenged, quashed or called in question in any proceedings before a Court or Tribunal except by the person who is the subject of the decision.” This means that if the EPA grants a works approval for the car park construction that may cause noise, dust or groundwater impacts, a resident or the school cannot challenge it. The only person who can challenge is the hospital, which is unlikely to challenge its own approval. This effectively privatises environmental enforcement.

Compensation bar is absolute and extends to the Crown. Section 8 provides that “no compensation is payable by the Crown or the Royal Melbourne Hospital” because the hospital uses or develops land in accordance with the Act “but inconsistently with the reservation of the land”. This means that even if the reservation is a statutory trust for public educational purposes, no one can claim compensation for the loss of that public benefit. The University High School may have expected that its oval would remain exclusively for educational use; the Act extinguishes any such expectation without compensation. The school’s only recourse is the agreement under section 7(4), which requires the hospital to reinstate the surface and permit continued use, but does not compensate for the lost surface area (exits and exhaust outlets).

Licence term up to 50 years without public tender. The Minister may grant a strata licence for up to 50 years under section 7(5)(c). There is no requirement for public notice, competitive tender, or market valuation. The licence is granted directly to the Royal Melbourne Hospital. This avoids the usual procedures for disposing of Crown land interests. The long term is significant: if the car park becomes obsolete or the hospital no longer needs it, the Crown cannot simply reclaim the land without compensation (except the Act does not provide compensation from the Crown either). The hospital could theoretically sublicense the car park to a private operator, though the Act does not explicitly prohibit or permit sublicensing; the Minister could prohibit it by condition. The lack of a public tender process means the public receives no upfront payment for the use of the Crown stratum.

The “as little as possible” standard is vague. Section 7(4)(b)(i) requires the hospital, in carrying out the redevelopment project, to “interfere as little as possible with the use of the University High School oval by that school.” This is a subjective standard that could lead to disputes. What constitutes “as little as possible”? Must the hospital schedule construction during school holidays? Must it minimise noise and dust? The Act does not provide criteria. The school must rely on the agreement and the Minister’s oversight, but the hospital has the upper hand.

No express remedy for breach of the section 7(4) agreement. The Act requires the Minister to enter into an agreement with the hospital containing the three promises about interference, reinstatement, and continued use. However, the Act does not say that the hospital’s failure to comply with that agreement invalidates the licence, or that the school can sue for specific performance or damages. The only explicit sanction is that the licence is “subject to any conditions that the Minister thinks fit” (section 7(5)), which could include conditions that mirror the agreement. If the hospital breaches, the Minister could potentially revoke or modify the licence, but revocation after the car park is built would be impractical. The school is left with a contractual claim against the hospital, but the Act does not guarantee the enforceability or the availability of a private right of action.

Supreme Court jurisdiction limitation may not be absolute. Section 9 purports to alter section 85 of the Constitution Act to prevent the Supreme Court from awarding compensation or considering certain decisions. However, the High Court of Australia has held that ouster clauses cannot exclude judicial review for jurisdictional error. So despite the intention, the Supreme Court may retain jurisdiction to review decisions that are ultra vires or infected by a jurisdictional error. This is a potential avenue for challenge, but it would require a litigant with resources and standing. The Act does not expressly exclude review for jurisdictional error, only for “considering or reviewing matters of the kind described” in the specified provisions. An astute lawyer might argue that a decision made without authority is not a “matter of the kind described”. So the ouster may not be as watertight as it appears.

The Act is still in force and may affect property transactions. Any conveyancer or solicitor dealing with land near the hospital or school should be aware that the Act grants a statutory easement-like right (a strata licence) over the subsurface of the school oval. This is not registered on title (Crown land is not under Torrens system for reservations), but it is a statutory encumbrance. Anyone purchasing adjacent land should check whether the car park construction may have affected support rights or drainage. The Act provides no compensation for such effects.

The Act imposes compliance obligations primarily on the Royal Melbourne Hospital and the responsible Minister. For the hospital, compliance involves the following steps. First, the hospital must ensure that any use or development of the cross-hatched land for a car park is in accordance with the redevelopment project as defined in section 3. This means the car park must be part of the staged redevelopment and must be accompanied by the other listed works (consulting rooms, accident and emergency facilities, etc.). The hospital cannot use the Act to build a car park only; the whole redevelopment project must be pursued. Second, the hospital must obtain a strata licence under section 7. This requires the Minister to have first consulted the planning Minister and entered an agreement with the hospital regarding the school oval. The hospital should therefore negotiate that agreement and ensure its terms are clear and enforceable. The agreement must cover the three matters in section 7(4)(b): (i) interfering as little as possible with the school’s use of the oval during the project; (ii) reinstating the oval surface after building works (except for exits and exhaust outlets); and (iii) permitting the school to continue to use the oval and the road crossing it after the works. The hospital should document its compliance with these obligations, including scheduling construction to minimise disruption, providing temporary access, and restoring the surface to a safe and usable condition. Third, the hospital must comply with any conditions the Minister specifies in the licence. These conditions may relate to access, improvement, maintenance, protection of school surface use, and reinstatement of access routes. The hospital should obtain the licence in writing and ensure all staff and contractors are aware of the conditions. Fourth, the hospital must comply with any planning scheme amendments made under section 4. Since the Act allows the Minister to impose conditions on the development and use of the land and to provide that no permit is required, the hospital should check whether any such conditions have been imposed and ensure compliance. The hospital does not need to apply for a planning permit if the amendment dispenses with that requirement, but it must still comply with the amendment. Fifth, the hospital must comply with the Environment Protection Act 1970 in respect of works approvals, licences and permits, even though third-party challenge rights are limited. The hospital should still engage with the EPA to obtain necessary approvals, as the EPA can still impose conditions, and non-compliance with those conditions would be enforceable under the Environment Protection Act. The hospital should not assume that the limitation on review means the EPA will approve everything; the EPA can still refuse. Sixth, the hospital must not cause any unnecessary damage or inconvenience to the school beyond what is unavoidable for the project. The “as little as possible” standard should be documented in a construction management plan agreed with the school. Seventh, the hospital should maintain records of the agreement, the licence, any planning amendments, and any EPA approvals, and ensure that any subcontractors are bound by the same obligations. For the Minister, compliance involves ensuring the preconditions to the licence are satisfied: consultation with the planning Minister and entry into the agreement with the hospital. The Minister should also ensure that the licence is granted for a term not exceeding 50 years, and that conditions are appropriate. The Minister has discretion to enforce conditions by revocation or non-renewal, but should act consistently. For third parties, compliance is not required; instead, they must accept the limitations on their rights. They cannot challenge planning amendments or EPA decisions, and cannot claim compensation. The only practical compliance step for the school is to monitor the hospital’s performance under the agreement and report any breaches to the Minister.