Central Highlands Region Water Authority v Ballarat CC and Ors (Red Dot) [2007] VCAT 1698

1. The Tribunal declines to make any declaration under s 149A or s 149B of the Planning and Environment Act 1987.
2. The application is dismissed.

For Ballarat City Council, Hepburn Shire Council, Central Goldfields Shire Council, and Pyrenees Shire Council

1. The Central Highlands Region Water Authority (the Authority) seeks declarations to clarify whether the Tribunal has jurisdiction to consider an application by a permit holder to review or challenge a decision of the Authority to require a 'mains connection' for water supply and sewerage in accordance with the standard condition in Clause 66.01-1 of Victorian planning schemes.
2. At the Tribunal's direction, notice of the application was given to the Minister for Planning and all Responsible Authorities within the Authority's water supply district. Most, including the Minister, declined the opportunity to be heard, although Golden Plains and Corangamite Shire Councils appeared at the prompt final hearing and made brief submissions.

1. Clause 66.01 of all Victorian planning schemes sets out some specific referral requirements for certain types of subdivision applications, as well as circumstances where referral is not required. Clause 66.01-1 then provides as follows:

66.01-1 Conditions on subdivisions not requiring referral

Permits for subdivisions listed above as not requiring referral (other than for the creation of lots to correspond with existing flats and car parking spaces) must contain the following conditions:

• The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
• All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
• The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with section 8 of that Act.

1. The Authority has requested that the Tribunal make declarations that:
   • For the purposes of the standard condition, the Authority is the relevant authority for the provision of water supply and sewerage facilities for land in its water supply district;
   • Under the standard condition, the Authority has the power to require that a person connect to the Authority's water supply and the Authority's sewerage system;
   • A decision by the Authority to impose such a 'mains connection' requirement under the standard condition is not amenable to review by the Tribunal under s 149(1) of the Planning and Environment Act 1987 or amenable to review and/or the subject of an application for declaration under any other provision of the Act.
2. The Authority's application was made under s 149A of the Planning and Environment Act 1987 (ie seeking an 'interpretation' of the standard condition). Subsequently, the application was amended to seek declarations, more generally, under s 149B. I have considered the matter under both provisions.

Preliminary issue - whether declarations ought to be made in the absence of a dispute

1. Whilst the Tribunal has a wide discretion in the making of declarations, it has been consistently held that the basic requirements for the exercise of that power include:[1]
   • there must be a dispute in existence
   • the jurisdiction is not available if the issue is purely theoretical
   • the dispute must not only be in existence but must be attached to facts
   • the dispute must be real, not hypothetical
   • the dispute must be of practical importance
   • the making of a declaration must be of practical use.
2. In the present case, the Authority has made its application in the absence of a dispute attached to particular facts, and the issue is largely theoretical and/or requires a determination of potentially hypothetical scenarios. There is also no named respondent who can put an alternative point of view.
3. On the basis that the 'basic requirements' for the exercise of the Tribunal's power have not been met in this proceeding, I decline to make any declaration under s 149A or s 149B of the Planning and Environment Act 1987.
4. This is particularly the case where the third declaration sought by the Authority relates to the jurisdiction of the Tribunal across a range of potential future (and, as yet, unknown) proceedings, including proceedings arising under both the review jurisdiction and original jurisdiction of the Tribunal. I doubt that I would ever be willing to finally determine the jurisdiction of the Tribunal in such a broad general manner, rather than in the context of a specific proceeding or factual scenario. To this extent, the application before me is also misconceived.
5. The Authority had predicted the possibility of me declining to make a declaration on the basis that there was no dispute in existence, and offered the matter of Kennedy v Golden Plains Shire Council (P413/2007) as a test case. That proceeding however involved a self-represented applicant with an application against conditions under s 80 of the Planning and Environment Act 1987, which had already been listed before a non-legal member less than a week after the hearing of this application. I indicated at the prompt final hearing of this application that I did not consider Kennedy to be an appropriate test case, despite the fact that some of the issues might be raised in that proceeding[2].
6. It follows that the issues raised by the Authority may need to await a real dispute attached to facts, where the issues can be more properly ventilated.

1. Given the lengthy submissions made by the Authority, it is perhaps useful to still make some general observations on the substantive issues raised. However, I reiterate that I do so in the context that I have declined to make any declarations, and I do not purport to finally determine these matters generally or in the absence of a proper application before me.
2. In its application and written submission, the Authority simply asserted that it was the "relevant authority" for water supply and sewerage facilities in its water supply district. I have no reason to doubt this assertion, and there was no material before me that suggested others seriously doubt the assertion such that clarification by declaration is warranted. Moreover, the authority produced no supporting evidence nor any reference to its governing legislation from which its status might be more readily ascertained. I therefore have no basis upon which to make the first declaration sought.
3. The Authority also asserted in its application and written submission that it has the power to require a person to be connected to the Authority's water supply and sewerage facilities pursuant to the standard condition. However, it seems to me that the reference to "the authority's requirements" in the first dot point in Clause 66.01-1 cannot be, by itself, the source of a power for the Authority to require a mains connection, as the Authority appears to contend. The standard condition actually refers to an agreement for the provision of water supply and sewerage facilities "in accordance with the authority's requirements and relevant legislation at the time". In my view, the Authority's power to impose a mains connection requirement would still need to be derived from the Authority's governing legislation or regulatory framework, notwithstanding that the standard condition then facilitates the provision of the mains connection in the context of a specific subdivision proposal. Whilst the Authority presumably has such a power, express or implied, no formal supporting evidence was provided, nor a reference to any specific power in the Authority's governing legislation or regulatory framework. I therefore have no proper basis upon which to make the second declaration sought.
4. The Authority also did not refer in its material to what might be meant by the requirement in the first dot point of Clause 66.01-1, that the owner "must enter into an agreement". The Authority seems to read the standard condition as simply allowing it to require a mains connection. The Authority indicated, by way of justification for the mains connection requirement, that it had a belief that it had little or no discretion in imposing such a requirement because of the Water Industry New Customer Contributions Guidelines 2006 (the Guidelines) published by the Essential Services Commission. I was not taken through this document in detail but note that, as the name suggests, the Guidelines are a guideline only and ought not to be applied inflexibly. Moreover, the stated purpose of the Guidelines is to provide guidance with respect to the application of pricing principles. Insofar as I can ascertain, it does not itself impose a mandatory requirement for water supply or sewerage connection.
5. The third declaration sought by the Authority (i.e. whether the Tribunal has jurisdiction to review matters or make declarations in relation to the Authority's common application of the standard condition) was the main issue before me. The Authority indicated that its common practice, within a residential zone, was to require the holder of a subdivision permit incorporating the standard condition in Clause 66.01-1 to connect at the permit holder's cost to the Authority's reticulated water supply and sewerage system. The Authority asserted that its application of the standard condition would not be amenable to review, nor be the subject of an application for declaration, under any provision of the Planning and Environment Act 1987.
6. Without finally deciding this issue, my general observations are as follows:
   • Clause 66.01-1 refers to the provision of water supply and sewerage facilities being "in accordance with the authority's requirements", rather than being "to the satisfaction of" the authority. The standard condition does not therefore use the terminology which would clearly trigger a right of review under s 149(1)(a) of the Planning and Environment Act 1987. This view of s 149 has been recently endorsed in Casey City Council v Dennis Family Corporation[3].
   • Following from the above, it would therefore seem to be difficult, if not impossible, for a permit holder to seek a merits review of the application of the standard condition under s 149(1)(a). If this was not the intention, then the standard condition or s 149 ought to be clarified[4].
   • Relevantly, the standard condition does not automatically require the provision of water supply and sewerage facilities, but requires that the owner "must enter into an agreement" with the relevant authority. An agreement connotes a 'meeting of minds', rather than one person imposing a requirement on the other that is not in reality agreed at all. However, no argument was put to me to consider whether the requirement for an "agreement" with the relevant authority is tantamount to obtaining the "consent" or "approval" of the authority, which might conceivably trigger the jurisdiction for review under s 149.
   • Similarly, no argument was put to me as to whether the "agreement" referred to in the standard condition, relating to servicing and infrastructure in subdivision matters, is in some circumstances the same agreement contemplated by s 21(1)(b)(ii) of the Subdivision Act . If so, by virtue of of the , and of the , the Tribunal may have jurisdiction to determine a dispute as to the terms of the agreement. If this is the intention, then the regulatory framework might usefully be clarified.
7. It follows from some of the above observations that, based on the limited material before me, I would have been disinclined to make the declarations sought by the Authority, even if the Authority had not failed on the preliminary matter in relation to the absence of a real dispute attached to real facts.
8. It follows the application is dismissed.
9. I have however, in my general observations, highlighted areas where the intention of the legislation might be clarified in relation to the standard condition in Clause 66.01-1 - specifically, whether the relevant authority's requirements under the standard condition, or a dispute as to the 'agreement' relating to those requirements, ought to be amenable to review by the Tribunal. This is ultimately a matter for policy-makers rather than the Tribunal itself, and has implications for relevant servicing and infrastructure authorities beyond the applicant in this case. I therefore propose to forward a copy of these reasons to the Department of Planning and Community Development for its consideration.

[1] See for example Bayside City Council v Firbank Anglican School (1999) 3 VPR 146, 155-6, following State Transport Authority v Rural City of Wodonga (1989) 2 AATR 175, 184; and also Hill v Campaspe Shire Council [2005] VCAT 1128

[2] That matter has since been heard. Although initially arising as a 'conditions' application under s 80, I understand that application was made at the hearing of the Kennedy case to bring the application under s 149, and the jurisdiction of the Tribunal under s 149 was therefore raised for consideration.

[3] [2007] VSC 238 at para 27

[4] I note that, in the Casey case, Osborn J also suggested s 149 ought to be clarified, albeit in another context - see [2007] VSC 238 at para 29.

[5] An agreement under s 21(1)(b)(ii) of the Subdivision Act 1988 relates to 'public works'. A connection from a new lot to an existing nearby water mains may be more in the nature of a private connection, although the extension of the mains to the subdivision or a connection to a mains supply some distance away may be more in the nature of public works.