Appellant v Respondent

1 This is an appeal by Casey City Council ("the Council") pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1995, in respect of a decision by the planning division of the Victorian Civil and Administrative Tribunal ("the Tribunal").

2 That decision was made in response to a purported application pursuant to s.149 of the Planning and Environment Act 1987 ("the P&E Act") in respect of two conditions contained in a permit to subdivide land and relating to the construction of roads.

3 Those conditions had not themselves been appealed at the time of the grant of the permit pursuant to s.80 of the P&E Act. Nor had further permit conditions relating to the making of development contributions been the subject of appeal at the time the permit was granted.

4 The Development Contributions Plan conditions were in the following terms:

[41] After Certification of the relevant plan of subdivision but not more than 21 days prior to the issue of a Statement of Compliance in respect of that plan or as agreed to by the Responsible Authority the developer must pay a development contribution to the Council in accordance with the provisions of the approved Development Contribution Plan for Local Structure Plan 3 Cranbourne East Development Contribution Plan.

[42] Where the subdivision is to be developed in stages a schedule of Development Contributions must be submitted with each plan of subdivision. The schedule must show the amount of Development Contributions paid for each stage together with running tallies of any credit balance in the amounts provided, to the satisfaction of the Responsible Authority.

5 The plan of subdivision set aside land for roads.

6 Conditions 26 and 27 (which were the subject of application pursuant to s.149) provided:

[26] Roads must be provided and constructed, including the provision of traffic management devices, to the satisfaction of the Responsible Authority.

[27] Prior to the issue of a Statement of Compliance for the first plan of subdivision under this permit, Broad Oak Drive and Linsell Boulevard through to Narre Warren-Cranbourne Road must be fully constructed to provide sealed road access to the satisfaction of the Responsible Authority.

7 On 24 July 2006, prior to the hearing of the matter by the Tribunal, condition 27 was amended (it appears at the request of the subdivider) to provide:

Prior to the issue of a Statement of Compliance for Stages 33 to 36 as shown on the endorsed plan under this permit, Broad Oak Drive must be fully constructed to provide sealed road access to Linsell Boulevard and construction of the first stage (part 2) of Linsell Boulevard to provide road access to Narre Warren-Cranbourne Road must have commenced.

8 The order of the Tribunal (as corrected by it) was:

The decision of the Responsible Authority regarding its requirements in respect of conditions 26 and 27 of permit 130/04A is varied to provide that the value of the construction of Linsell Boulevard stage two (the section of road between the constructed Linsell Boulevard stage one, at Rochester Road, to Narre Warren-Cranbourne Road) and the construction of the intersection at Linsell Boulevard and Narre Warren-Cranbourne Road to a standard agreed between the applicant and the Responsible Authority in consultation with VicRoads is to be fully offset against present and future development contributions to be made by the applicant pursuant to the Development Contributions Plan for Local Structure Plan 3 Cranbourne East.[1]

(1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or

(2) An application for review of a decision referred to in sub-section (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.

(3) The responsible authority is a party to any proceedings under this section.

10 It was submitted to the Tribunal that it did not have jurisdiction to make the order which it did, on two essential bases:

(a) The Tribunal exceeded its powers under s.149 arising out of the relevant permit conditions;

(b) It could not purport to vary the terms of conditions 26 and 27 so as to derogate from the terms of conditions 41 and 42.

11 It can be seen that as originally formulated both conditions 26 and 27 required the provision and construction of road works to the satisfaction of the responsible authority.

12 Condition 27 specifically provided that the owner must construct a portion of Linsell Boulevard to the satisfaction of the responsible authority.

13 Condition 27 as amended does not in terms now require the owner to construct a portion of Linsell Boulevard. Condition 27 as amended simply provides so far as relevant that the construction of the first stage (Part 2) of Linsell Boulevard must have commenced. There is no requirement that something be done to the satisfaction of the responsible authority. There is thus no aspect of the amended condition 27 giving rise to a justiciable dispute under s.149. This said, it may be possible to read Condition 26 as requiring that the commencement required by Condition 27 be to the satisfaction of the responsible authority, although it is of course the value of the whole of the works not the commencement which is truly in issue.

14 The more fundamental question is however, whether s.149 enabled the Tribunal to go behind condition 26 and direct the Council with respect to the funding of the roads.

15 In my view it did not. Condition 26 is directed to the manner of physical provision of roads. It is this that must be to the satisfaction of the responsible authority. The roads must be constructed to a standard and within a time frame satisfactory to the responsible authority.

16 The subdivider submits that the dictionary meaning of provide extends to:

To make arrangements for supplying means of support, money etc. (usually followed by for).

17 In my view the meaning of provide in the present instance is its primary meaning namely to "furnish or supply". The condition is not directed to making financial provision for the construction of roads. It is simply concerned with the standard of the actual provision and construction of roads.

[106] We disagree with Council's contentions regarding the Tribunal's jurisdiction. Conditions 41 and 42 of the permit impose the requirements to pay levies under the Development Contributions Plan. Condition 26 is a general condition relating to a provision in construction [sic] of roads and traffic management devices to the satisfaction of the responsible authority. Part 3B of the Act envisages that there may be entered agreements about various matters relating to the payment of levies and how this may be done, including through the provision of works, services and facilities. We consider that the nature of those agreements and how roads are provided and constructed are caught in the embrace of condition 26. We consider this to be a general condition giving the responsible authority control over these matters and, more importantly, providing a general dispute resolution process for any matters relating to the provision or construction of roads and traffic management devices.

[107] Section 149 of the Act provides a general dispute resolution mechanism involving specified bodies and specified persons. Anything in a planning scheme or permit that requires that a matter must be done to the satisfaction of the Responsible Authority triggers the opportunity for an application under section 149. We consider that a broad interpretation should be given to the operation of section 149 to resolve disputes between specified bodies and specified persons. We are satisfied that a dispute exists between the council and Dennis Family Corporation. That dispute relates to the satisfaction of the responsible authority about arrangements for the provision and standard of construction of roads and traffic management devices under condition 26 of the permit. We therefore find that the Tribunal has jurisdiction to consider this application for review under section 149(1)(a) of the Act.

19 It is true that Part 3B of the Act provides for the acceptance by a collecting agency of works in lieu of the payment of a DCP levy. More specifically, s.46P provides in part:

(2) The relevant collecting agency may accept the provision of land, works, services or facilities by the applicant in part or full satisfaction of the amount of levy payable.

(3) Sub-section (2) applies to land, works, services or facilities provided before or after the application for the permit was made or the development is carried out.

20 Nevertheless, in my view this provision does not change the character of the plain meaning of condition 26. Further, the discretion provided for under s.46P if exercised by the Council is not exercised as the responsible authority administering condition 26 of the permit. It is administered by it in its capacity as a "collecting agency". It is a discretion concerned with the manner of collection of levies. It is not a discretion exercised by the responsible authority in assessing compliance with condition 26.

21 It is also seriously to be doubted that the power to review the question of the Council's "satisfaction" pursuant to a permit condition extends to varying the terms of that condition as the Tribunal in effect purported to do. The Tribunal was not exercising its powers pursuant to s.87 of the P&E Act, nor was it reviewing the terms of the condition itself pursuant to s.80 of the P&E Act. What it in substance did, however, was to rewrite the condition so as to substantially alter its meaning.

22 The Tribunal's decision was not one varying a decision within the meaning of s.51 of the Victorian Civil and Administrative Tribunal Act 1998. Rather it was in effect a purported setting aside of the condition pursuant to which the relevant decision (if any) arose and the making of an alternative condition in substitution for it.

23 Accordingly, in my opinion the Tribunal's decision was beyond power. In summary first, the terms of condition 27 do not give rise to a dispute as to whether works to be provided or constructed were to the satisfaction of the Council. Secondly, the terms of condition 26 could only apply to road works in issue if those works were required by condition 27, and such condition is limited to the commencement of works. Thirdly, the phrase "roads must be provided and constructed" in condition 26 is directed to the physical provision and construction of such roads. Fourthly, the Tribunal has not varied a decision under a condition, as to whether proposed roads will be provided and constructed to the satisfaction of the responsible authority, it has purported to vary the substance of the condition itself.

24 The subdivider has submitted that this jurisdictional point is not satisfactorily covered by the Council's grounds of appeal. Question 3 raised by the notice of appeal is: Is a decision of a Council, made in accordance with s.46Q(2) of the Planning and Environment Act 1987 amenable to review pursuant to s.149 of the Act? The corresponding grounds of appeal are:

(a) The Tribunal erred in law in the circumstance that its jurisdiction pursuant to s.149 of the Act did not extend to review of a decision made by a Council under s.46Q(2) of the Act.

(b) The decision of the Council the subject of the application for review was not a decision which satisfied the terms of s.149 of the Act.

25 The subdivider submits that s.46Q is essentially an accounting provision.[3] In my view it is more than this, but the answer to the submission goes beyond such characterisation

26 In my view the underlying dispute between the parties arises out of the application of a combination of provisions in Part 3B of the P&E Act including s.46Q but most significantly in the present case relating to the effect of s.46N and the implementation of s.46P.[4] The point raised by the Council goes to jurisdiction and is at core quite clear, namely, that the justiciable dispute before the Tribunal, concerned the implementation of road works and not the collection of levies. Insofar as doubt arises I would allow question 3 to be understood to fully embrace the terms of the grounds of appeal and in particular ground (b) set out above.

27 I do not accept that s.149 is a "general provision" for review. In my view it is relevantly directed to adjudication with respect to compliance with the terms of permit conditions where these conditions require performance to the satisfaction of the responsible authority.

28 It follows the appeal must succeed and the application for review must be dismissed. It is unnecessary to consider the second substantive ground relied on by the Council.

29 This said it seems eminently desirable that s.149 of the P&E Act be amended to enable the decision of a collecting agency pursuant to s.49P of the P&E Act to be reviewed by the Tribunal on the merit.

30 Further the decision of the Tribunal carefully assessed the history and difficulties contained in the legislative scheme relating to development contributions and although it is not necessary to go to that reasoning in the present matter, it is appropriate to record that the Tribunal's decision has been of substantial assistance in elucidating the issues in the associated matter of Casey City Council v Carson Simpson Pty Ltd.

[1] Dennis Family Corporation v Casey CC [2006] VCA 372 (23 November 2006).

[2] Dennis Family Corporation v Casey CC [2006] VCA 372 (23 November 2006) , [106]-[107].

1. [3] 46Q. Responsibilities of municipal councils

(1) A municipal council must, in accordance with the Local Government Act 1989, keep proper accounts of any amount of levy paid to it as a collecting agency or a development agency under this Part.

(1A) A municipal council to which an amount of levy is paid as a collecting agency under this Part must forward to a development agency any part of the levy that is imposed for the carrying out of works, services or facilities by or on behalf of that development agency.

(2) Subject to this section, a municipal council to which an amount of levy is paid as a development agency under this Part must apply that amount only -

(a) for a purpose relating to the provision of works, services and facilities in respect of which the levy was imposed; and

(b) in accordance with the approved development contributions plan.

(3) A municipal council may refund any amount of levy paid to it as a development agency under this Part in respect of a development if it is satisfied that the development is not to proceed.

(a) an amount of levy has been paid to a municipal council as a development agency under this Part for the provision of works, services or facilities in an area; and

(b) that amount has not been expended within the period required by the approved development contributions plan -

the municipal council must within 6 months after the end of that period -

(c) with the consent of the Minister and in the manner approved by the Minister, pay that amount to the current owners of land in the area; or

(d) in accordance with Part 3, submit to the Minister an amendment to the approved development contributions plan to provide for the expenditure of that amount; or

(e) with the consent of the Minister and in the manner approved by the Minister, expend that amount for the provision of other works, facilities or services in that area.

[4] See the decision in the associated matter of Casey City Council v Carson Simpson Pty Ltd [2007] VSC 25.