The development of the land at 200-280 Berwick/Cranbourne Road, Cranbourne East permitted by Permit P515/06A requires that a development infrastructure levy in accordance with the Local Structure Plan 3 (Cranbourne East) Development Contributions Plan (the DCP) is payable for each independent living unit and apartment (other than the first independent living unit or apartment) on the basis that the independent living units and the apartments are a multi-dwelling development for the purposes of the DCP.

Declaration under s 149A(1)(a) Planning and Environment Act 1987

Development Contributions Plan Overlay Schedule 4 (DCPO4)

The land is 22.1 ha and is triangular in shape, on the south side of the Berwick-Cranbourne Road, extending 870 m to the east from the junction of the Berwick-Cranbourne Road and the former South Gippsland Railway easement.

Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188

Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884

Hore v Albury Radio Taxis Co-op Society Ltd. [2002] NSWSC 1130

Deputy Commissioner of Taxation v Forsyth [2007] HCA 8

1. A large retirement village, known as Blue Hills Rise, is being developed on land at the rapidly growing outer suburban area of Cranbourne East.
2. A dispute exists between the Responsible Authority and the owner of the retirement village as to whether the owner must pay an infrastructure levy under an approved development contributions plan that applies to the land.
3. The Responsible Authority has therefore applied to this Tribunal for a declaration under s 149A(1)(a) of the Planning and Environment Act 1987 (PE Act) that, in effect, the levy is payable.
4. The application has required me to construe the meaning and effect of the development contributions plan.
5. I have decided that a development infrastructure levy must be paid for each independent living unit and each serviced apartment in the retirement village.

1. The Responsible Authority's plans to deal with rapid urban growth have included for many years a requirement that owners in certain areas contribute to the cost of providing infrastructure when, in general terms, land is developed for urban purposes.
2. When the Casey Planning Scheme (the scheme) commenced on 26 August 1999, the land was in an area affected by DCPO4.
3. The Responsible Authority granted a permit on 19 December 2006 to use and develop the land for a retirement village. The permit was subsequently amended. The permit currently authorises a retirement village comprising:
   • 273 single storey, two and three bedroom independent living units (units),
   • 16 single storey, two bedroom serviced apartments (apartments),
   • a 120 bed nursing home, and
   • extensive communal facilities.
4. The permit does not provide for subdivision of the land. The Respondent's current intention is not to subdivide the land but to lease the units and apartments.

A development infrastructure levy must be paid to the Responsible Authority in accordance with the provisions of the approved Local Structure Plan 1 (Cranbourne East) Development Contributions Plan[1] or at a rate to the satisfaction of the Responsible Authority prior to the commencement of the use, that is occupancy of the buildings. Where the proposal is to be developed in stages a Schedule of Development Contributions must be submitted with each stage and the development infrastructure levy for that stage must be paid prior the occupancy of that stage. The schedule must show the amount of development contributions payable for each stage and paid in respect of prior stages to the satisfaction of the Responsible Authority.

1. The Respondent did not apply to the Tribunal after the grant of the permit to review the condition.

1. The Tribunal has jurisdiction under s 149A(1)(a) of the PE Act because the matter relates to the interpretation of a development contributions plan that is incorporated into the scheme and also relates to the interpretation of condition 14 of the permit in relation to the retirement village. The Tribunal has a discretionary power to grant a declaration. I am satisfied there is a dispute in existence, and that the issue is not purely theoretical and is of considerable practical and commercial importance to the parties.

1. When the permit was granted the land was in a Rural Zone and subject to DCPO4.[2] At that time, a permit was required for accommodation and a retirement village was included within the definition of accommodation under cl 74 of the scheme. Retirement village was then, and remains now, defined as:

Land used to provide permanent accommodation for retired people or the aged and may included communal, recreational or medical facilities for residents of the village.[3]

1. A dwelling is a separate land use within accommodation. Dwelling is defined as:

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

1. The definition of retirement village relies on the broader term of accommodation and does not expressly employ or rely on the definition of dwelling.[4] However, it follows that a retirement village may include accommodation used as dwellings. A land use may be properly characterised as a retirement village if it includes dwellings and/or other forms of accommodation and other ancillary facilities.

1. A development contributions plan is given effect through cl 45.06 and cl 81 of a scheme.
2. When the scheme came into operation on 26 August 1999, the Local Structure Plan 3 (Cranbourne East) Development Contributions Plan (the DCP) was incorporated into the scheme.[5]
3. When the permit was granted, cl 45.06-1 provided that:

A permit granted [to construct a building in a development contributions plan overlay] must ... [i]nclude any conditions required to give effect to any contributions or levies imposed, conditions or requirements set out in the relevant schedule to this overlay.

1. When the permit was granted, DCPO4 provided:
   • A summary of contributions.[6] This is confirmed by the 'Note' at the base of DCPO4 which stated:

This Schedule sets out a summary of the costs and contributions prescribed in the development contributions plan. Refer to the incorporated development contributions plans for full details.

• That levies 'payable by the development are specified in dollars per lot of all the land in the subdivision'.[7]
• The levies were for development infrastructure, but not community infrastructure.[8]
• The levies were '$2,675' for 'residential' development, or '$16,050/ha' for 'non-residential' development.[9]

1. The Respondent has not paid any levies since the grant of the permit.
2. Clause 3.0 of DCPO4 was amended after the grant of the permit and is currently expressed to provide 'a summary of contributions in 2008 dollars'. The contributions are now higher - for 'residential' development they are $4,009 'per lot', and for 'non-residential' development they are $24,053 'per hectare'.
3. I now turn to the DCP for the 'full details'.

1. The DCP is a 15-page document. It is drafted more as a planning document than as a legal instrument. It contains no definitions of words and phrases used in the document. The draftsperson may not have anticipated that it would be a document incorporated into a legal document such as the scheme.
2. Section 8 of the DCP addresses the apportionment of infrastructure costs. Here it becomes clear that the amounts payable do not solely to relate to lots in subdivisions (as specified in the summary in cl 3.0 of DCPO4) but are intended to apply to all new households. It states:

All new households that come into the urban area generate on average a similar need for additional infrastructure. The development contribution is therefore applicable to all new lots/dwellings.

1. Section 10 of the DCP goes on to relevantly provide:

Under Section 46J of the Planning and Environment Act this Development Contribution Plan requires the imposition of a development infrastructure levy as follows:

• The imposition of a levy applies to all land located within the LSP3 area specified in the plan attached as Appendix 2.
• The imposition of the levy applies to all new residential ... lots or in the case of multi-dwelling ... developments, (the site area for) all new buildings. ...
• The levies must be calculated on the following basis:
  • $2,675 (1993 dollars) for every new residents lot, or in the case of multi-dwelling developments, each new dwelling (the first lot/dwelling being exempt);
  • The Responsible Authority may adjust the amount of $2,675 quarterly for inflation, starting on 1 July 1994, based on the general CPI index for Capital Cities;
  • $16,050 (1993 dollars) per hectare for new development on industrial or commercial land;
  • The Responsible Authority may adjust the amount of $16,050 quarterly for inflation, starting on 1 July 1994, based on the general CPI index for Capital Cities;
  • The levy must be paid prior to the issue of a Statement of Compliance for the subdivision that creates the lots, or in the case of other developments, prior to the issue of a building permit, unless other arrangement for payment has been agreed by the Responsible Authority;
  • The Responsible Authority may accept works or land in-lieu as fulfilling the contribution requirement (except in case of the railway contribution).

Any planning permit for a residential ... subdivision, or for a multi-dwelling development ... must include a condition that requires a development contribution in accordance with the provisions of this Development Contributions Plan.

1. The DCP does not define a 'multi-dwelling development'.

1. The DCP does not expressly require a levy to be paid for the development of a retirement village.
2. For the purposes of the definitions of land uses in the scheme, a retirement village is not a dwelling, but a retirement village may include one or more dwellings.
3. The DCP is an incorporated document. If one looks at the range of documents incorporated under cl 81 of schemes, it is apparent that many of them (including the DCP) do not adopt the drafting or format of a scheme.
4. The starting point is the interpretation of the DCP.

1. The Court of Appeal, in Popular Pastimes Pty Ltd v Melbourne City Council,[10] cited with approval the following passage from the High Court's judgment in CIC Insurance Ltd v Bankstown Football Club:[11]

Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous ... [I]f the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [12]

1. The approach to interpretation should also seek to reach a practical and commonsense outcome, at the same time as giving effect to purpose.[13]

1. The context of the DCP is a contemporary inability by State and local authorities to finance the full cost of infrastructure demanded by new residents in growth areas. If a broad range of infrastructure is provided at any early date, it improves the liveability of growth areas. Part of those costs must therefore be paid directly or indirectly by those residents.
2. A construction of the DCP or a provision of the DCP that promotes the purpose or object underlying the DCP must be preferred.[14]
3. The purpose of the DCP is to ensure that future households in the DCP area equally contribute directly or indirectly to the costs of providing the specified items of infrastructure that will benefit residents in the DCP area. Households will occupy multi-dwelling developments (and lots created mainly for single dwellings) and will increase the population requiring infrastructure.

1. The construction of the expression 'multi-dwelling development' must have regard to the purpose of the DCP. The construction of the expression is not for the purpose of characterising the development as a land use in accordance with cl 74 of the scheme and, for example, applying the relevant land use provisions of the relevant zone applying to the land.
2. Although an 'approved' development contributions plan must be one that forms part of a scheme,[15] it is not prepared under a scheme. It is prepared under Part 3B of the PE Act but is approved and comes into force when it is incorporated into a scheme. This conclusion is supported by s 46K(1)(f) of the PE Act which requires a DCP to specify the types of development in respect of which a levy is payable. Part 3B does not expressly require that the types of development in a DCP be characterised in accordance with land use terms in cl 74 of a scheme.
3. The Responsible Authority correctly characterised the use as a retirement village when it granted the permit. This does not remove the possibility that the retirement village or part of it may constitute a 'multi-dwelling development' for the purposes of the DCP.
4. A multi-dwelling development has its ordinary meaning. 'Multi' means many.[16] The ordinary meaning of dwelling is '1. a place of residence or abode, a house ... 2. continued or habitual residence'.[17]
5. Each of the 273 two and three bedroom units contain a bathroom (containing at least a shower), at least one toilet, a kitchen, and a laundry. Each of the 16 two-bedroom apartments appears to have the same facilities, but for a separate laundry.
6. Each of the 273 units is a dwelling under its ordinary meaning. Each is also a dwelling under its narrower meaning in cl 74 of the scheme, because each is self-contained and includes a kitchen sink, food preparation facilities, a bath or shower, a toilet and wash basin.
7. Each of the 16 apartments is a dwelling under its ordinary meaning. Each is also a dwelling under its narrower meaning in cl 74 of the scheme for the same reasons, even though none are provided with laundry facilities.
8. Part 3B of the PE Act incorporates a definition of dwelling.[18] That definition is different from the definition in cl 74 of the scheme. The definition in Part 3B broadly adopts an ordinary meaning of dwelling, but for some specified exclusions, and would encompass each unit and apartment. However, I have not relied on that definition to assist me construe 'multi-dwelling development' because the purpose of the definition is to clarify development to which a community infrastructure levy may apply. In this case, the DCP does not apply a community infrastructure levy.

1. Clause 3.0 of DCPO4 does not a require a levy to be paid for constructing a multi-dwelling development. It is expressed to apply to lots in a subdivision. Therefore, there is an apparent inconsistency between DCPO4 and the DCP. In accordance with s 7(4)(a) of the PE Act, I read the scheme as a whole to resolve this apparent inconsistency. The DCP must prevail because DCPO4 is stated to be a mere summary of the DCP and that there must be reference to the DCP for 'full details'.
2. Section 10 of the DCP is inelegantly drafted. It states that a levy applies to 'in the case of multi-dwelling developments, (the site area) for all new buildings'. This suggests that the correct levy may be (currently) $24,053 per ha and not $4,009 per dwelling. I disagree with that suggestion because the subsequent provision states:

[t]he levies must be ... $2675 ... for ... in the case of multi-dwelling developments, each new dwelling (the first lot/dwelling being exempt).

1. Having regard to the above passage from Popular Pastimes, I must consider inconvenience, improbability and possible anomalies when construing a multi-dwelling development. Here, I balance two possible outcomes.
2. First, if I construe a multi-dwelling development as to exclude development in a retirement village, the outcome is that a levy is not payable for that development and households in the retirement village will not share equally with non-retirement village households in contributing to the cost of infrastructure. Other households may need to pay a higher levy if the DCP is amended to raise levies to ensure total contributions meet anticipated costs.
3. Second, if I construe a multi-dwelling development as more than one dwelling having regard to the ordinary meaning of dwelling, the outcome is that some potentially unintended forms of dwelling may be levied. Mr Morris drew my attention to a caretaker's house, a display home, a cabin in a caravan park, or a dependent person's unit.
4. In relation to a caretaker's dwelling, I doubt there will be many caretaker's dwellings having regard to the nature of proposed development in the DCP area.
5. In relation to a cabin in a caravan park, a caravan park is currently land used to allow accommodation in caravans, cabins, tents or the like. The intention is not to provide self contained accommodation.
6. In relation to a display home, most display homes are subsequently used as dwellings. I see no major inconvenience if a levy is paid when a display home is constructed and before it is used as a dwelling.
7. In relation to a dependent person's unit, it is defined, in its essential terms, as a moveable building used to provide accommodation for a person dependent on a resident of a dwelling on the same lot. If a dependent person's unit is a dwelling under its ordinary meaning (an issue I do not need to decide in this proceeding), then it is not contrary to the purpose of the DCP that, as a new household, a contribution for infrastructure in the DCP should be paid.[19]
8. I consider the balance of convenience lies in a preference for the second outcome. The second outcome is more consistent with the purpose of the DCP.

1. Does s 46N(1) of the PE Act operate to oust any obligation to pay a levy for a multi-dwelling development? When the permit was granted, s 46N(1) of the PE Act provided (and currently provides):

46N Collection of development infrastructure levy

(a) an approved development contributions plan provides that a development infrastructure levy is payable in respect of the development of any land; and

(b) an application is made under this Act for a permit to carry out that development on that land -

the responsible authority must include a condition in the permit that the applicant -

(c) pay the amount of the levy to the relevant collecting agency within a specified time or within a time specified by the collecting agency; or

(d) enter into an agreement with the relevant collecting agency to pay the amount of the levy within a time specified in the agreement.

1. A levy is payable under the DCP for multi-dwelling development. However, a permit is not required under the scheme to develop the land for a multi-dwelling development, but is required to use or develop the land for a retirement village. Hence, is condition 14 of the permit invalid because the development in the DCP is not the same as the development in the permit? Does 'that development' in s 46N(1)(b) have a broad or narrow meaning?
2. It cannot have been the legislature's intention that the development in the DCP must have the same name as the development for which a permit is required. If it was, the consequence of changing or replacing a land use definition in a scheme could be loss of a requirement to pay a levy under a DCP. As well, a development for which a permit is required is determined by a number of possible permit triggers in a scheme. The description of development for which a permit is required may be different from specified development in a DCP.
3. In my view, the correct approach is to construe the meaning of the development in the DCP for which a levy is payable. Even if a permit is granted for a differently named or specified development (eg having regard, as in this proceeding, to land use terms in cl 74 of the scheme), the test is whether the development in the DCP is the same, in substance if not form, as all or part of the development authorised under a permit.

1. The Respondent submitted that, in the context of the DCPO schedules in the scheme, a broad view that a levy is payable for each dwelling in a multi-dwelling development cannot be sustained. DCPO4 is expressed to only apply to lots. It is true there is considerable variation between the schedules. I do not give any weight to the variations because, in each case, the DCPO schedules are mere summaries of the relevant DCP requirements.

Does multi-dwelling development have an ambulatory meaning?

1. Finally, does the meaning of a multi-dwelling development need to expand or contract according to the way the words in the scheme or the PE Act may change over time? In other words, is the meaning of a multi-dwelling development ambulatory?
2. A leading case of this approach to interpretation is Hore v Albury Radio Taxis Co-op Society Ltd.[20] In that case, the Court considered whether the meaning of 'special federal matter' in State legislation was altered by changes in its definition under complementary Commonwealth legislation. The Court held the meaning under State legislation is ambulatory and that it does expand and contract as the meaning under Commonwealth legislation changes over time. The Court found a non-ambulatory meaning would not be workable.
3. I doubt that Hore is of much assistance in this proceeding. First, Hore concerned complementary legislation in two jurisdictions. Second, the principle of ambulatory construction is not a rule, but may be applicable if consistent with legislative intention.[21] Third, as acknowledged by a majority of the High Court in Deputy Commissioner of Taxation v Forsyth,[22] an ambulatory construction may need to give way to a construction that is consistent with the objective of the provision.
4. If I were to find that the meaning of a multi-dwelling development in the DCP were to change according to changes in the scheme or the PE Act, it would be contrary to the purpose of the DCP. The principle of ambulatory construction has, in reality, no application in this proceeding because a multi-dwelling development was not defined in the scheme or the PE Act when either the DCP was approved and when the permit was granted (or even after that) and is therefore not a term that has changed in either the scheme or the PE Act.

1. Should the levy payable for a unit or apartment in the retirement village be the same as that payable for a single dwelling on its own lot? The Respondent submitted that independent reports and reports to the Responsible Authority showed that residents in retirement villages are more self contained for infrastructure. There would be injustice, under this submission, that a resident of a unit or apartment in a retirement village contribute to infrastructure he or she is unlikely to use because it has already been provided (indirectly at their cost) in the retirement village.
2. I am not persuaded by the submission. Transport infrastructure comprises approximately 82% of development infrastructure costs that will be funded by the levy. Residents in the retirement village will directly benefit from the transport infrastructure with improved access the local and wider area. They will also benefit indirectly with goods and services being provided to them more efficiently, and with friends and family being better able to visit them.
3. The correct legal test is not whether residents will use or generate the facilities but whether there is a nexus between the facilities and, in this case, the wider DCP area.[23] This nexus exists.
4. The application of the fairness principle needs care because the Tribunal cannot exercise a de facto merits assessment of the circumstances in this proceeding to determine whether a declaration ought to be made.

Does the Responsible Authority have discretion to reduce levies?

1. During the hearing, a question arose about whether condition 14 allowed the Responsible Authority to agree to the payment of a reduced levy in this case. Condition 14, in part, provides:

A ... levy must be paid ... in accordance with the [DCP] or at a rate to the satisfaction of the Responsible Authority prior to the commencement of the use, that is occupancy of the buildings.

1. The parties agreed that this alternative is beyond power and the condition needs to be read as not including the alternative. I agree with this view because the DCP itself does not provide that alternative. The DCP requires payment of a fixed levy on a per dwelling basis for a multi dwelling development.[24]
2. Condition 14 of the permit must be read as not having the discretion it purports to confer. If the Responsible Authority were to be prepared to agree to payment of a reduced levy for a multi dwelling development, the DCP would first need to be amended.

1. The DCP provides that the levy, for a multi-dwelling development, must be paid before the issue of a building approval for the multi-dwelling development. Section 46N(1) of the PE Act provides that a condition in a permit must provide that a development infrastructure levy is paid within a specified time, or that the applicant enter an agreement with the relevant collection agency[25] to pay the levy within a time specified in the agreement.
2. The effect of s 46N(1) of the PE Act was not argued in the hearing, so I merely observe there may be scope to specify a longer period for payment by either amendment of condition 14 or by agreement.

1. For the above reasons, a development infrastructure levy must be paid for each unit and each apartment (other than the first unit or apartment) because the units and apartment are, collectively, a multi-dwelling development for the purposes of the DCP.

[1] It was agreed between the parties, that there was a typographical error in the condition and that the Structure Plan number in the title of the development contributions plan should be '3' and not '1'.

[2] The land is now in the UGZ. No precinct structure plan applies to the land. Accordingly, a retirement village (being part of the use 'accommodation') is currently prohibited. This does not affect the validity of acting in accordance with the permit, while it remains in force.

[3] The definition was amended by Am VC11 on 29 March 2001, well before the permit was granted.

[4] This contrasts with the definition of 'residential village' which does expressly include a number of dwellings.

[7] DCPO4 cl 3.0. It also provided that the amounts were expressed in 1993 dollars and would be adjusted for inflation.

[8] See PE Act pt 3B for provisions for these two forms of infrastructure levy.

[9] These amounts were the total of levies payable for the distributor roads, traffic management works, community activity centres, railway infrastructure, and State road infrastructure.

[10] [2007] VSCA 188.

[11] (1997) 187 CLR 384; [1997] HCA 2.

[13] Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884 at [13]- [15].

[14] Interpretation of Legislation Act 1984 s 35(a).

[16] Macquarie Dictionary 4th ed, 2005.

[17] Macquarie Dictionary 4th ed, 2005.

[19] On further analysis, a dependent person's unit would, in almost all cases, be constructed after construction of the relative's dwelling. In those cases, no proposal would be construction of two or more dwellings, would not be a multi-dwelling development and no levy would be payable on that basis.

[20] [2002] NSWSC 1130.

[21] Hore v Albury Radio Taxis Co-op Society Ltd. [2002] NSWSC 1130 at [40].

[22] [2007] HCA 8 at [42]- [44].

[23] Eddie Barron Constructions Pty Ltd v Shire of Pakenham (1990) PABR 10, 30.

[24] The only alternative open to a Responsible Authority is to accept 'works or land in lieu as fulfilling [the whole of] the contribution requirement' (DCP section 10).

[25] Under section 10 of the DCP, the relevant collection agency is the Responsible Authority.