Victorian Civil and Administrative Tribunal|2003-12-02

Ballavale v Ballarat [2003] VCAT 1756 (2 December 2003)

Real Property List - Jurisdiction - Application to vary fees charged by Council for supervision of subdivision - Whether "Review" application - Whether application in original jurisdiction of Tribunal - Whether a "dispute" - s.39 Subdivision Act 1988 - Subdivision (Permit and Certification Fees) Regulations 2000

1. The Tribunal has jurisdiction to determine the application herein.

2. The hearing of this application shall take place on 2 February 2004 as a case of 1 day duration, before any member.

Ms Daly of counsel instructed by Cuthberts, Barristers and Solicitors

Ms Porritt of counsel instructed by Nevett Ford, Solicitors

1 The applicants are subdividers of land at Botanic Drive, Ballarat ("the land"). The respondent is the responsible authority in relation to such land.

2 The land was subdivided by the applicants in a number of stages. The matter that has come before the Tribunal relates to stages 3 and 4 of that subdivision. Section 17(1) and (2) of the Subdivision Act 1988 ("the Act") confer certain obligations on the respondent in this particular instance:

(a) appoint a person to supervise the construction of the works; and

(b) make a charge not exceeding the prescribed fee for the supervision; and

(c) enter into an agreement with an owner or applicant in anticipation of the applicant becoming the owner providing for either or both of the following :

(i) that works or other things required by the planning scheme or permit may be completed after registration;

(ii) if works are required, securing compliance with section 20A.

3 Pursuant to the Act, regulations were made (S.R. No 94/2000 - Subdivision (Permit and Certification Fees) Regulations 2000. Those Regulations, inter alia, provide :

The prescribed fee for the purposes of section 17(2)(b) of the Subdivision Act 1988 is 2.5 per cent of the estimated cost of constructing the works which are subject to supervision.

The prescribed maximum fee which may be fixed by a Council for checking engineering plans is 0.75 per cent of the estimated cost of constructing the works proposed on the engineering plan.

A Council may waive or rebate the payment of all or part of any fee payable under the Subdivision Act 1988 if -

(a) an application is withdrawn and a new application is submitted; or

(b) in the opinion of the Council the payment of the prescribed fee is not warranted because of the minor nature of the consideration of the matter to be decided; or

(c) in the opinion of the Council the requested service imposes on the Council no appreciable burden or a lesser burden than usual.

4 The respondent received the plans for Stage 3 of the Subdivision on 7 March 2002 and for Stage 4 on 20 September 2002. The plans were certified on 19 and 20 February 2003 respectively and a Statement of Compliance for both of them was issued on 20 February 2003.

5 In relation to these matters, the Council made the following charges :

6 It will be noted that the amount charged by the respondent is the maximum amount which it is able to charge pursuant to Regulations 5 and 6 referred to above.

7 On 7 March 2003, the applicant wrote to the respondent alleging that the amount charged for supervision in relation to the subdivision was excessive because firstly, the drainage and earthworks had increased the total value significantly and, secondly, because the diameter of the pipe that was required to be used was a lot greater than that normally used. The cost of the pipes also increased the price of the subdivision very considerably. As a result, the respondent was requested by the applicant to waive or reduce the payment of the fees pursuant to Regulation 7.

8 By a letter dated "0 XXX 0000" the respondent stated that the fees had been reviewed and it was not prepared to reduce that amount.

9 After being requested to give reasons for the failure to waive or reduce the fees, on 20 August 2003, one Heather Pitman, on behalf of the respondent, wrote as follows :

With reference to your letter of 17 July, 2003, I wish to reiterate that I am not prepared to reduce the fees required for Plan Checking and Supervision.

I am entitled to charge 0.75% of the estimated cost of construction of civil works for Plan Checking, and 2.5% of the cost of civil works for Supervision. Whilst I agree that in some cases this might not truly reflect the actual cost of delivery of those services, I am not prepared to vary this costs. In some cases the cost of delivery may indeed be less, in some cases the cost of delivery might be more. I do not have the resources to directly account for these costs and am not prepared to complicate the process.

10 The applicants have now caused to be issued an application in this Tribunal on 3 September 2003 seeking review of : "The decision by City of Ballarat not to reduce the fees for Plan Checking and Supervision of Stages 3 and 4 of Subdivision of Land by Ballavale Pty at Botanic Drive, Ballarat".

11 The letter of 7 March 2003, which I have referred to above, accompanied the application.

12 On the day of hearing, Ms Porritt, for the respondent, submitted that this Tribunal had no jurisdiction to deal with this matter. She initially challenged the jurisdiction on a procedural basis by reference to Rule 6.27 of this Tribunal. However, after some discussion, she correctly abandoned the challenge on that point.

13 However, the respondent's second point of challenge to jurisdiction was that this was not a matter that came within the meaning of the word "dispute" as used in s.39(1) of the Act.

14 Section 39 of the Act reads as follows :

39. Other disputes arising under this Act

(1) An owner, an applicant, a Council or a referral authority may apply to the Victorian Civil and Administrative Tribunal for the determination of a dispute arising under this Act or the regulations (emphasis supplied).

(a) under section 35 or referred to in section 38; or

(b) that involves a decision or matter referred to in section 149 or 19A of the Planning and Environment Act 1987; or

(d) relating to an agreement under section 173 of that Act; or

15 Ms Porritt stated that the matter before the Tribunal was a review of a decision of the respondent. She stated that s.39 was directed exclusively to the original jurisdiction of the Tribunal.

16 Ms Porritt then referred to s.41 and 42 of the Victorian Civil and Administrative Tribunal Act 1998 which defined both the original and review jurisdiction of the Tribunal :

Original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction.

(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.

17 It is clear from the legislative provisions that there is a distinction between "original" and "review" jurisdictions of the Tribunal. This distinction is made clear by the authors of Victorian Administrative Law Kyrou and Pyzer wherein it is stated :

The VCAT's original jurisdiction consists primarily of functions conferred on it by enabling enactments for the Tribunal to make first instance decision. The jurisdiction includes original disciplinary jurisdiction, that is the VCAT's jurisdiction under various Acts to hold inquiries or otherwise hear disciplinary matters at first instance (para v 2140). ...

When exercising its review jurisdiction the VCAT reviews decisions on merits. Its task is to make the correct or preferable decision having regard to the material before it. The review must take place without any presumption as to the correctness of the decision under review; equally it would be wrong for the reviewing body to do no more than consider whether the decision under review is "not unreasonable" or "open" or "not reasonable". Stewart v Shuey (1999) VSC 114.

It is noted that the authors of that work must be of the view that the jurisdiction given to the Tribunal pursuant to s.39 of the Act is original jurisdiction because it is classified under the "original jurisdiction" tab.

18 In this particular instance, a decision has been made by the respondent, not to use the power given to it by Regulation 7 and waive or rebate the fee. It is that decision that the applicant is requesting the Tribunal to reverse. In my view, the application herein is clearly seeking, a review of the decision of the respondent within the meaning of Stewart v Shuey. Therefore, the application before the Tribunal is a review application rather than an application in the original jurisdiction. This proposition was not seriously contested by Ms Daly who appeared for the applicant.

19 Ms Porritt submitted that those matters which the Tribunal had jurisdiction to review under the Act are confined to s.40 of the Act. That section reads as follows :

(1) An applicant may apply to the Victorian Civil and Administrative Tribunal for review of -

(i) refuse to consent to the certification or amendment of a plan; or

(iii) make a requirement under section 44(3F); or

(d) a decision of a Council or referral authority to require the applicant to enter into an agreement under section 17(2)(c) or 21(1)(b)(ii).

(2) An owner who requests the Council or a referral authority to make a statement under section 36 or has applied for a permit or requested a permit to be amended may apply to the Victorian Civil and Administrative Tribunal for review of a decision of the Council or referral authority to refuse to make the statement.

(3) A reference in sub-section (2) to a decision to refuse to make a statement includes a reference to a failure to make the statement within the prescribed time.

(4) A reference in sub-section (1) or (2) to a decision to refuse to do a thing includes a reference to a failure to do that thing.

(5) An applicant under section 44(4A), (5), (5A) or (5B) may apply to the Victorian Civil and Administrative Tribunal for review of a refusal of the Council to consent to the application.

(6) Without limiting its powers on review, if the Tribunal finds that a Council or referral authority has unreasonably refused or failed to take any action, the Tribunal may or der that the action be carried out by another person, wholly or partly, at the cost of the Council or referral authority.

20 She correctly stated that there is no mention of the type of matter referred to in this application in s.40. She stated that if Parliament had intended the Tribunal to review the decision that is sought to be reviewed in the application, it would have been included in s.40 or, alternatively, would have been stated with clarity as a review matter in s.39. It will be noted, that s.40 leaves the reader in no doubt by the use of the word "review" that the Tribunal in relation to those matters is exercising the review jurisdiction. Ms Porritt submits that because the word "dispute" is used in s.39 rather than "review", that cannot be a section to find jurisdiction to review a decision which has been made by the respondent.

21 In discussions with Ms Porritt during the hearing of this matter, it became clear that when Parliament intends that the Tribunal should be given review jurisdiction, it certainly knows how to do it. Reference was initially made to s.40 of the Act itself. Reference was also made to s.32D(3) of the Melbourne Metropolitan Fire Brigade Act, s.77 of the Transport Accident Act, and s.50 of the Freedom of Information Act where the word "review" is used to give the Tribunal jurisdiction. Section 32 D(3) of the Melbourne Metropolitan Fire Brigade Act is of particular interest because that gives the Tribunal the power to review the fees charged because of attendance by the Fire Brigade due to a false alarm.

22 Ms Porritt thus concluded her submission by saying that s.39 of the Subdivision Act should be confined to matters of original jurisdiction rather than review jurisdiction, because if Parliament had intended to do otherwise they would have stated such intention in clear terms by using the word "review".

23 Ms Daly conceded that, on its face, the application before the Tribunal is an application for review. However, she said there is a dispute between the parties as to the amount of fees that should be paid pursuant to s.17(2) of that Act. She stated that s.39 should not be confined to the Tribunal's original jurisdiction. She stated that s.39 is a hybrid and even though this application has strong similarities to the Tribunal's review jurisdiction, it is nonetheless a "dispute" between the parties within the meaning of s.39, which section, she stated, was a "catch-all" in relation to disputes between the parties.

24 During discussions with Ms Porritt, I raised with her the question of whether, if the word "dispute" within s.39 did not apply to this type of application then what type of application could it apply to? Initially, Ms Porritt stated that it could apply to a decision as to what type of pipes should be used. However, that would be a similar type of review to the application that is presently before the Tribunal and, in my view, that example does not take the matter any further.

25 Ms Porritt then suggested that it could apply to disputes arising from a water flow problem in a subdivision. However, in my view, it is clear that such disputes are usually dealt with under the Water Act and, in any event, it is not altogether clear whether such disputes would be under the Subdivision Act.

26 I suggested to Ms Porritt that perhaps it could relate to a dispute as to boundaries of land. Ms Porritt adopted this suggestion. However, on consideration, it would seem to me that such a dispute would be better dealt with under the Transfer of Land Act or some other enactment perhaps in another place. Further, it is unlikely such a dispute would arise under the Act.

27 It thus seems to me, that if the words of s.39 do not apply to this type of application, it is difficult to see s.39 having any application whatsoever. It could not have been the intention of Parliament that s.39 should have no application. Under those circumstances, in my view, it is likely that by passing s.39, Parliament intended that the word "dispute" therein used should have its natural and ordinary meaning, which meaning encompasses a dispute of this nature, even though it would fall within the review jurisdiction of the Tribunal. To find otherwise would be to give s.39 no use, which could not have been the intention of Parliament.

28 Ms Porritt stated that her researches have failed to uncover any authority as to the meaning of "dispute" in s.39. I have also performed extensive researches with the same negative result.

29 I am grateful to Macnamara DP for bringing to my attention the fact that the Act has had a chequered history. It was one of the first pieces of legislation in this State to use so called "plain English". It was introduced and passed in the Legislative Assembly. When the Bill arrived in the Legislative Council, there were dozens of correcting amendments introduced. After the statute was brought into effect further rafts of amendments were introduced in 1989 and 1991 to render it workable. Thus, I conclude, to find something that makes sense, as one would expect in a rational scheme, in this statute, may be impossible. In light of these matters, even though it is clear that Parliament knows how to create a review jurisdiction, it is perhaps not surprising that that knowledge was not used in s.39. In my view, the only way to give the section some effect is to interpret it as applying to a dispute such as this in the review jurisdiction of the Tribunal. That interpretation gives the word "dispute" its "plain English" or natural and ordinary meaning.

30 Under those circumstances, in my view, the Tribunal has jurisdiction to hear this application, and such jurisdiction arises from s.39 of the Act.

Subdivision (Permit and Certification Fees) Regulations 2000

Environment Act 1987

Ballavale v Ballarat [2003] VCAT 1756

At a glance

Court

Decision date

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Judgment (72 paragraphs)

Ballavale v Ballarat [2003] VCAT 1756 (2 December 2003)

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Legislation Cited (2)