Blackburn Station Village Traders v Whitehorse CC [2008] VCAT 928

1. By consent, the Tribunal confirms that for the purposes of this proceeding the following 12 parties shall act in a representative capacity vis-à-vis all parties listed in the Schedule to the Application for Review dated 4 March 2008:
   • Behringer Australia Pty Ltd (Attention: Michael Jago) of Suite 3, 60-64 Railway Road, Blackburn Vic 3130;
   • Jim Ulrich & Associates Pty Ltd (Attention: Jim Ulrich) of 68D South Parade, Blackburn Vic 3130;
   • Woodards (Attention: Cameron Way) of 10 Main Street, Blackburn Vic 3130;
   • J & J Dynamotive Centre (Attention: Bev Kannegusse) of 21 Blackburn Road, Blackburn Vic 3130;
   • PCR Australia Pty Ltd (Attention: Peter Lewis) of Level 1, 1 Main Street, Blackburn Vic 3130;
   • Lush juice coffee bar (Attention: Mirella Ierardo) of Shop 2, 1 Main Street, Blackburn Vic 3130;
   • Beetle branding (Attention: Martin Cowling) of Suite 1, 14-16 Blackburn Road, Blackburn Vic 3130;
   • Jacaranda Tree Café (Attention: Winston Edrisinha) of 1-2/28 Blackburn Road, Blackburn Vic 3130;
   • Blackburn Family Dental Care (Attention: Dr N Faris) of 1 Main Street, Blackburn Vic 3130;
   • The Beauty Beautique (Attention: Sonia McFadyen) of 1 Main Street, Blackburn Vic 3130;
   • Bellbird Cobblers (Attention: Vince Ierfone) of 3 Main Street, Blackburn Vic 3130; and
   • Gwen's Tailoring (Attention: Mary Berry) of 4/1a Main Street, Blackburn Vic 3130.

All other businesses listed by hand in the Schedule to the Application for Review dated 4 March 2008 are hereby stuck out as parties to this matter.

1. In relation to any future correspondence for this proceeding directed to the Applicants, that correspondence obviously now merely needs to be sent to the 12 Applicants listed above.
2. The Applicants must by no later than COB Friday 6 June 2008 lodge with the Tribunal and copy to the Responsible Authority further and better particulars regarding the following:
   • where it is alleged that the contentious Declaration of a special rate/charge scheme is defective pursuant to Section 185(2)(b) of the Local Government Act 1989 ("Act"), the Applicants must confirm which of the sub-clauses (i), (ii), (iii) and (iv) they are relying upon in section 185(2)(b);
   • in relation to each such sub-clause, the Applicants must provide particulars of precisely why it is submitted that it would be fair and reasonable for the contentious Declaration of a special rate/charge should be modified or rejected by the Tribunal pursuant to that sub-clause;
   • the Applicants must also confirm whether (above and beyond any challenge raised under Section 185(2)(b)) it is alleged that the Declaration of the special rate/charge should be held to be invalid (ie in reliance upon judical review issues) pursuant to Section 185AA of the Act. If so, the Applicants must provide particulars of how the process which led to the Declaration is specifically challengable as failing to be "valid" under Section 185AA(1).
3. Both the Responsible Authority and the Applicants are also given the opportunity to by COB Friday 6 June 2008 to provide written submissions (copied to the other party) regarding the appropriate future conduct of this matter (eg is the proceeding ready to be set down for a hearing and if so, what witnesses will be called and how much hearing time will be needed).

1. To avoid duplication, I refer to my summary of the main features of this application set out in my interim decision dated 22 April 2008.
2. Since then (as provided for in my interim orders) the following correspondence reached my desk on 7 May 2008:
   • a brief submission in response from the applicants dated 2 May 2008, responding to the legal issues raised by Mr Lucas on behalf of Council at the directions hearing for this matter on Friday 5 May 2008; and
   • a batch of information under cover of a letter dated 2 May 2008, indicating 12 traders that are prepared to act as "representative applicants".
3. I also confirm that I have recently received:
   • a letter dated 28 April 2008 from PCR Australasia Pty Ltd reiterating its objections to the contentious special rate/charge scheme; and
   • a fax from South Parade Seafood which indicates that this business no longer wishes to be a party to this proceeding (however this is now academic, given the orders I have made above regarding the 12 representative applicants and striking out the balance of the applicants).
4. My findings on the relevant issues at this stage are as follows.

Preliminary legal ruling on status of those objectors who are tenants rather than landowners

1. Having considered the submissions of Mr Lucas at the directions hearing on 5 May 2008 and the subsequent written submissions in response from the applicants, my preliminary legal ruling is that the standing challenge raised by Council is refused. Accordingly, I accept that any of the 12 representative applicants who is a tenant rather than a relevant landowner may still (pursuant to Section 185(1) of the Local Government Act 1989) validly bring an application challenging the Declaration of the special charge/rate in question here.
2. I see no reason to depart from the conclusions reached by Deputy President Dwyer in his comparable decision of Gary Marshall & Ors v Mornington Peninsula SC (VCAT Ref. P3050/07). At paragraph 3 of that decision Mr Dwyer stated that:

There is nothing in Section 185 of the Local Government Act 1989 which limits rights of review to an "owner" and the Council's assertion to this effect is patently incorrect. Any person required to pay the special charge has a right of review on the grounds set out in s 185(2).

1. Whilst acknowledging that Senior Member Byard expressed a contrary view in the decision of PJ Ceramic & Slate v Melton Shire Council [1998] VCAT 539, this decision is now 10 years old and Mr Byard only expressed a preliminary opinion rather than making any final ruling. In addition, given that the PJ Ceramic decision was issued in the same year that the current version of Section 185(1) of the Local Government Act 1989 was introduced (ie 1998), it is unclear whether Mr Byard was assessing the current version of Section 185(1).
2. In relation to Mr Lucas' submissions at the directions hearing regarding how best to interpret the relevant provisions of the Local Government Act 1989, I see the most important point here as being that the key provision (ie Section 185(1)) uses quite general language in empowering any person on whom a special rate or charge is imposed to seek a review of same at the Tribunal.
3. Whilst it is more an ancillary issue, I agree with the applicants that it seems a strange situation that Council is now arguing that only the affected landowners have standing to challenge the Declaration of a special rate/charge, when the applicants have provided me with a copy letter from Council regarding the relevant special rate/charge scheme which is addressed (with my emphasis) to "The Owner/Occupier".
4. In relation to Mr Lucas' submissions that allowing tenants standing to challenge the Declaration of a special rate or charge will inappropriately complicate Council's consideration of the "special benefit" issue when Council is preparing special rate or charge schemes, I think this misses the fundamental point that the Tribunal has previously found that the assessment whether any "special benefit" arises is an objective rather than a subjective one[1]. Hence the issue here is simply whether there will be any particular benefit to the property in question (with an associated special benefit for the owner or occupier), regardless of whether any one relevant property has been tenanted out compared to being owner/occupied.

1. There has been a joint Application for Review lodged here, in that the Application form dated 4 March 2008 has attached to it a three page schedule of traders who wish to be a party to the proceeding (the details of each trader has been inserted by hand and there is a signature in each case).
2. Given my concerns raised at the directions hearing regarding the unwieldy situation where the Tribunal potentially has to send copies of all correspondence to some dozens of applicants, I note that the further information provided by the applicants included the details of 12 proposed "representative applicants". The Tribunal is content to move forward on this basis and I have made appropriate orders above regarding these 12 parties.
3. To keep the process manageable and given the redundant role of the other relevant businesses once the representative applicants are in place, I have also made orders that all other parties apart from the representative applicants are struck out (ie are no longer formal parties to this matter). The representative parties should be able to ensure that all relevant persons are appropriately consulted with and kept informed. Given the orders I have made, it obviously does not matter if any of these representative applicants are tenants compared to owner/occupiers.

1. I accept the concern of Mr Lucas that the various submissions made by the applicants are currently very wide-ranging and/or vague in terms of which particular provisions of the Local Government Act 1989 the objection is being made under, and what particular grounds are being relied upon.
2. I have made appropriate orders above clarifying this situation. It shall be sufficient for the purposes of these "further and better particulars" orders for the representative applicants to provide this further information.

[1] See Kloklas v Richmond CC (1993) 10 AATR 329 at 333, plus Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 334-35.