On 1 February 2024 a Governor in Council Order made on the recommendation of the Minister for Planning was gazetted under s 16 of the Planning and Environment Act 1987 (Act) with the effect that the use or development of land carried out by or on behalf of the Minister for Children is exempt from all planning schemes.

Section 16 of the Act

Section 16 of the Act states:

A planning scheme is binding on every Minister, government department, public authority and municipal council except to the extent that the Governor in Council, on the recommendation of the Minister, directs by Order published in the Government Gazette.

That gazettal, which is effective from 1 February 2024, states:

The Governor in Council, under section 16 of the Planning and Environment Act 1987, on the recommendation of the Minister for Planning, directs that planning schemes shall not be binding on the use or development of land carried out by or on behalf of the Minister for Children.

The powers of the Minister for Children

In this case, the Minister for Children has been named in the exemption.

The Minister for Children administers a number of Acts that contain powers relating to education, welfare and care services for children. This includes matters relating to the land on or premises in which such matters are undertaken.

For example, the Education and Care Services National Law Act 2010 contains provisions relating to the use and development of land for education and care service premises provided under the Education and Care Services National Law.

Other acts administered by the Minister for Education include (amongst others) the Children’s Services Act 1996, the Education and Training Reform Act 2006 (in part) and the Children, Youth and Families Act 2005 (in part). These instruments also establish and regulate a number of bodies and authorities that have powers in relation to land themselves and, depending on the circumstances, may be said to be acting on behalf of the Minister for Children in exercising those powers.

It is therefore highly conceivable that land uses or developments which would have otherwise (and previously) triggered a planning permit under the Planning Scheme, such as various forms of accommodation or education facilities may now be exempt from the application of the Scheme if they are carried out ‘by or on behalf of’ the Minister for Children.

The meaning of 'by or on behalf of'

Several orders have previously been gazetted under s 16 of the Act including the most often referred to order gazetted in 1988 that provides planning schemes shall not be binding on the use and development of land carried out by or on behalf of the Minister for Conservation, Forests and Lands, the Minister for Health or the Minister for Education (except in certain circumstances).

Section 16 does not import the words ‘by or on behalf of’ however the use of this phrase has been adopted in the relevant orders gazetted under s 16.

Whether a use or development is being carried by a relevant minister will usually be clear.

The question of whether a use or development is carried out on behalf of a relevant minister can be less clear. There is a significant body of Tribunal commentary on the circumstances in which uses and developments are and are not ‘on behalf of’ a relevant minister, whether for the purposes of benefitting from an order under s 16 or where that expression appears in the planning schemes (e.g., in the public purpose zones).

The starting point with respect to whether something is done on behalf of someone else is the High Court’s decision in R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 in which the majority of the Court observed:

The phrase "on behalf of" is, as Latham C.J. observed in R. v Portus; Ex parte Federated Clerks Union of Australia, "not an expression which has a strict legal meaning", it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing. […]

Context will always determine to which of the many possible relationships the phrase "on behalf of" is in a particular case being applied; "the context and subject matter" (per Dixon J. in the Federated Clerks' Case will be determinative. (at p386)

The Tribunal has considered the phrase ‘by or on behalf of’ in a planning scheme, in a number of VCAT decisions, including the decisions of Futsal Central Pty Ltd v Boroondara CC [2019] VCAT 720, Bayside Residents for Council Accountability Inc v Bayside CC [2022] VCAT 606 and John Wertheimer v Bayside CC [2017] VCAT 726.

The key question in applying the newly gazetted Order will be whether, in conducting the relevant use or development, the person or body acts in a manner auxiliary to, or representative of, the Minister for Children.

This calls for a nuanced analysis of a range of factors, including whether the Minister exercises a degree of control or supervision over the use or development, the nature of the use or development, the functions of the person or body undertaking the use or development and the relationship between that function and the Minister for Children under the relevant statutory framework.

Key takeaways

While the implications of the Order in Council are (as far as we know) yet to be realised, councils should familiarise themselves with this exemption and be prepared to assess what ‘by or on behalf of’ means on a case by case basis.