Why this decision matters

The Victorian Civil and Administrative Tribunal has handed down its inaugural decision interpreting the transitional exemption provisions of the Windfall Gains Tax Act 2021 (Vic) (WGT Act) in AS Residential Property No. 1 Pty Ltd v Commissioner of State Revenue [2026] VCAT 648[1].

The decision provides important guidance on when landowners and developers may be exempt from WGT where a Ministerial rezoning was ‘underway’ before 15 May 2021 — the date the tax was announced.

The Tribunal set aside a WGT assessment of approximately $36.2m, representing 50% of the approximately $72.5m uplift in value of the former Kingswood Golf Course at Dingley Village following its rezoning to residential use, finding that the transitional exemption in section 40(2) of the WGT Act applied.

Background

The applicant, an entity within the Australian Super group, owned the former Kingswood Golf Course at Dingley Village. The land was rezoned from Special Use Zone (golf course) to General Residential Zone in September 2023 by a Ministerial amendment (C199king) to the Kingston Planning Scheme.

Under the WGT Act, a rezoning that uplifts the capital improved value of land by more than $500,000 attracts WGT at 50% of the uplift. However, section 40(2) provides a transitional exemption where, among other things, ‘the Planning Minister agreed before 15 May 2021 to prepare the amendment.’

The Commissioner of State Revenue assessed the applicant to WGT on the basis that the exemption did not apply. All other requirements of the exemption were accepted as having been met — the sole contest was whether the Minister had ‘agreed to prepare’ the amendment before the cut-off date.

The critical timeline

Applicant's Contentions

The applicant contended the Minister's agreement could be inferred from a composite course of actions including:

• registration of the draft amendment on the Amendment Tracking System (ATS) in December 2020
• meetings between ASRP's project team and Departmental officers from August 2020
• the Minister's approval of the Ministerial Brief titled ‘Request to prepare planning scheme amendment C199king – Kingswood Golf Course Redevelopment’ (which recommended the Minister agree to refer the draft amendment to the SAC, subject to changes) on 9 May 2021 and concurrent letters
• subsequent actions by the Department to progress the amendment to exhibition and SAC referral.

Commissioner's Contentions

The Commissioner argued that:

• The Minister only ‘agreed to prepare’ the amendment when the subsequent Minister formally prepared, adopted and approved it on 19 September 2023 — well after 15 May 2021.
• Referral to the SAC was for the purpose of seeking advice on whether to agree to prepare the amendment, constituting a deferral of that decision.
• The amendment needed to have been prepared to the stage where the Minister could consider exercising powers under section 20(4) of the P&E Act.
• The draft amendment at the SAC referral stage was merely a ‘proponent-led’ document.
• The Minister needed to have ‘assumed carriage’ of or ‘picked up the pen’ on the amendment.

What the Tribunal decided

The Tribunal found that the Minister's actions on 9 May 2021, approving the Brief and signing the referral letters, constituted at least a ‘tacit agreement’ to prepare the amendment, sufficient to enliven the transitional exemption.

Key findings include:

Practical implications for landowners and developers 

This decision offers several important takeaways for landowners and developers with exposure to WGT on Ministerial rezonings:

• The threshold for ‘agreement’ is relatively low. A Minister's agreement to prepare a planning scheme amendment for the purposes of section 40(2)(b) need not be express or formal — it may be inferred from tacit understanding or conduct.
• Proponents should preserve contemporaneous evidence. The decision turned on documentary evidence of the Minister's actions and knowledge. Landowners and developers engaged in rezoning proposals should carefully preserve correspondence, briefing materials, and records of Ministerial decisions.
• The exemption protects amendments at an early stage. The agreement need only reflect the Minister's state of mind to commence the process of formulating the amendment, regardless of whether the amendment had actually been prepared or progressed to any particular statutory stage. Once the Minister has formed a state of mind to commence formulating the amendment, the exemption is ‘preserved’, regardless of how long it takes for the amendment to ultimately be approved and gazetted.
• The SAC referral pathway can evidence agreement. For golf course rezonings and other proposals subject to advisory committee processes, a Ministerial referral that necessarily entails preparation of a draft amendment may itself constitute the required agreement.

Looking ahead

As the first decision under the WGT Act's transitional provisions, this case establishes a framework for assessing Ministerial agreement that is likely to be relevant to other contested WGT assessments involving pre-Budget Ministerial rezonings.

The decision underscores that the Tribunal, exercising its merits review jurisdiction, will look to the totality of the evidence and the practical realities of how planning scheme amendments are progressed, rather than requiring formal, express and unconditional Ministerial approval at an early stage.

Landowners and developers who received WGT assessments in respect of Ministerial rezonings that were in progress before 15 May 2021 should review their position in light of this decision.

If you have any questions regarding this update, please contact our experts.