Victorian Civil and Administrative Tribunal|2001-11-09

Christian Brothers Vic Pty Ltd v Banyule CC [2001] VCAT 2120 (9 November 2001)

Planning, Planning List, permit conditions, validity of conditions, common law tests as to the validity of conditions, conditions requiring the provision of works, works necessitated by proposal, condition requiring payment for works necessitated by proposal, conditions requiring payment of part of cost of works necessitated by proposal. Works on the land, works of the land, history of such conditions, validity of such conditions under introductory words of s. 62(2) Planning and Environment Act and common law tests of permit validity, legislative history, statutory provisions amplifying the power, introduction of s. 62(2)(h), effect thereof, repeal thereof, effect of appeal, development levies for infrastructure in a wider area, approved development plans, s. 62(2)(h) repealed as part of legislation to provide new arrangements in relation to development levies, development levy plans and conditions imposing such levies,

APPLICANT FOR REVIEW: Christian Brothers Vic Pty Ltd.

Medium Neutral Citation [2001] VCAT 2120

The decision of the Responsible Authority to impose conditions 6 and 8 in the permit under review is varied and it is directed, pursuant to s. 85(1)(e) of the Planning and Environment Act 1987, that the permit must contain those conditions in the following terms:-

"6.(a) "Unless otherwise approved in writing by the Responsible Authority, the carpark hereby approved shall:

(i) be utilised between the hours of 7.00 am and 6.00 pm Monday to Friday and between the hours of 7.00 am and 2.00 pm Saturday;

(ii) be utilised on a total of eight evenings per calendar year not later than 11.00 pm with the evenings to be nominated by the school and submitted to the Responsible Authority by 28 February of that year;

(iii) only be utilised by buses for a maximum of five bus trips per week (with one trip being a movement in and a movement out of the carpark)."

(b) The carpark hereby approved must not be used by buses bringing or collecting students commuting to the school for ordinary daily school activities."

"8. Prior to the issue of a Statement of Compliance the sum of $24,000.00 must be paid to the Responsible Authority towards the construction costs of works necessitated by the grant of this permit namely a roundabout to the satisfaction of the Responsible Authority to be constructed in the intersection of Milton Parade and Shelley Avenue."

Ms L Hicks, solicitor of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority. She presented written and oral submissions (the written submissions being in two separate documents) and called Peter Butterworth, Council Traffic Engineer as a witness. He gave oral evidence and presented a written witness statement. However, it was made clear that he was called as an employee of the Council, and not as an expert witness, and in particular that he had not specifically investigated points advanced by Mr Stephen Hunt, traffic engineer called on behalf of the Applicant.

Mr M McKenzie, solicitor of the firm of Doyle & Kerr, solicitors, appeared for the Applicant. He presented written and oral submissions and called two expert witnesses namely Mr Stephen Hunt, traffic engineer and Mr John David Roney, town planner. Each of these witnesses gave oral evidence and presented a written report.

Planning and Environment Act 1987s. 3(1), s. 46A to 46Q, s. 62, s. 62(1), s. 62(2),

s. 62(2)(a), s. 62(2)(h), [repealed], s. 62(5), s. 62(6), s. 149, s. 173.

Planning and Environment Act (Development Contributions) Act 1995

Town and Country Planning Act 1961 s. 18, 27(4), s.18(2A), s.52A.

Town and Country Planning Act (General Amendment) Act 1979 s. 8(b.)

Town and Country Planning Act (General Amendment) Act 1979 s. 8(b).

Local Government Act 1958 s. 197(1)(xxxviii)(a),(6) to (9) inclusive.

Local Government Act 1936 (Qld) s. 34(10), 33(16C).

Eddie Barron Constructions Pty Ltd v Shire of Pakenham & Anor [1990] 6 AATR 10.

Cardwell Shire Council v King Ranch (Australia) Pty Ltd [1984] HCA 39; (1984) 53 ALR 632, 85 ALJR 386 and [1984] HCA 39; 54 LGRA 110.

Pyx Granite Co Ltd v Ministry of Housing & Local Government [1958] 1 QB 554,

271 William Street Pty Ltd v City of Melbourne [1975] VR 158.

Protean (Holdings) Ltd v Environment Protection Authority [1977] VicRp 5; [1977] VR 51.

Rosemeier v City of Greater Geelong (No.1) [1997] 20 AATR 86.

Curry v Melton Shire Council [2000] VSC 352 and 7 VPR 109.

Frankston City Council v Kaybea Pty Ltd (unreported VCAT review 1999/24121 and 2000/33540).

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit.

Sixty-seven lot subdivision and use of land as a carpark for Parade College.

Residential 1 Zone and subject to a Development Plan Overlay (DPO3) and an Environmental Significance Overlay under the Banyule Planning Scheme.

Conditions 6 and 8 on Permit P849/00 issued on the 5 March 2001 allowing subdivision of land into sixty seven residential lots and use and development of a section of the land for a carpark in association with Parade College.

1. This is an application for review of two conditions imposed by the Responsible Authority in Planning Permit P849/00 issued on the 5 March 2001. The permit allows the subdivision of land into sixty-seven residential allotments and the development and use of a section of land for a carpark in association with Parade College. Parade College is a Roman Catholic educational institution of the Christian Brothers located on the eastern side of Plenty Road, Bundoora south of the Northern Ring Road. The entire area concerned is 80.8 hectares. The frontage and main entry to Parade College is to the eastern side of Plenty Road. A central portion of the holding accommodates the campus for Parade College which, in turn, contains several blocks of buildings for administration and various parts of the educational institution. Car parking for staff, visitors and buses serving the school has access via the main entry from Plenty Road and is located close to the administration building and playing fields of the school. A total of approximately 300 car spaces are provided in that area.

2. Areas to the south and east of the land are zoned and used residentially. The school is developing pursuant to a substantial plan called the College View Development Plan. A development plan is required under the Development Plan overlay affecting the land. Clause 43.04-1 of the planning scheme provides that permission for subdivision and the construction of buildings and works is not to be granted until a development plan has been prepared to the satisfaction of the Responsible Authority. One was prepared and submitted by the Applicant, but the Responsible Authority was not satisfied with it. The matter of the Responsible Authority's dissatisfaction was then brought to this Tribunal in Christian Brothers Vic Pty Ltd v Banyule CC being review No. 2000/15464. That matter was heard by Mr Richard Horsfall, Deputy President and Mr Anthony Liston, Member in late May 2000 with a determination given on the 27 June 2000. The decision was that the refusal to approve the plan was set aside and the development plan was approved subject to certain modifications. The approved plan envisages the subdivision and development for residential purposes of areas around the school campus on land owned by the Applicant.

3. The current application is for Stage 4 of such residential subdivisional development. It concerns an area to the south of the school campus area and involves the development of 67 residential allotments. Access to these allotments is to be provided by an extension to the existing Milton Parade which intersects with Plenty Road some distance south of Parade College. Milton Parade runs off to the east from Plenty Road, and forms an extension of McLeans Road, which intersects with Plenty Road on its western side opposite to Milton Parade. Milton Parade starts out to the east, but curves gently to the north so that it reaches the southern boundary of the Parade College land. Before it reaches that boundary it intersects with several minor access courts, and also with Shelley Avenue, which runs off further to the east from its intersection with the curve in Milton Parade to provide connecting access to existing residential land further east between the southern margin of the Parade land and Cameron Parade to the south. Shelley Avenue connects, via Luton Way with David Court, another east-west collector road to the south of the Parade campus. The intersection of Shelley Avenue with Milton Parade is thus quite an important one. At present most of the traffic using it comes from the east via Shelley Avenue. There is little existing residential development to the north of the Shelley Avenue/Milton Parade intersection with access via Milton Parade, although the Stage 4 subdivision would add 67 allotments to be served largely via Milton Parade through the Shelley Avenue intersection. Milton Parade would be extended in total by approximately 240m and would serve all but 12 of the 67 new residential allotments to be created by Stage 4. This does not mean that all 67 allotments are along Milton Parade. It would collect traffic from a small network of roads designed in the form of cul-de-sac courts leading off Milton Parade itself.

4. One of the conditions under challenge concerns a proposal to improve the Milton Parade/Shelley Avenue intersection by the introduction of a traffic control device in the form of a roundabout in that intersection. This controversy relates to proposed condition 8. The problems raised in relation to condition 8 are more complex than those in relation to the other condition under challenge, namely condition 6.

5. The Development Plan envisages that Milton Parade will not only serve as access for the Stage 4 subdivision, but that it will also provide a secondary access to the southern portion of the total College campus, and in particular to a 58 space carpark to be located adjacent to the Edmund Rice Senior Campus in that portion of the overall campus.

6. This car parking area would be along an asphalt access road forming an extension to the end of Milton Parade, which, at its end, forms a loop around a proposed central island of car parking, with further car spaces around the periphery of the access road. This main portion of the carpark would be to the south-west of the Edmund Rice Senior Campus, and separated from the adjacent portion of the 67 lot Stage 4 subdivision on an open area containing a proposed open catchment drain and a stand of existing trees.

7. The second condition under challenge, namely condition 6, relates to this carpark.

8. Initially the review was only in relation to condition 8, but subsequent action was taken to incorporate a challenge to condition 6. As it is the simpler, I will deal with it first.

9. As it appears in the permit issued on the 5 March 2001, condition 6 reads: -

6. Unless otherwise approved in writing by the Responsible Authority the carpark hereby approved shall:

(a) Only be utilised between the hours of 7.00 am and 6.00 pm Monday to Friday; and

10. In relation to condition 6, the Responsible Authority, accepts that the overwhelming use of the proposed carpark would be during school hours. It has no quarrel with that usage. Condition 6 is proposed because of a concern that "excessive out of hours use of the carpark would potentially reduce the amenity of future residents of Stage 4 of the subdivision". This quoted passage comes from paragraph 11 of the written statement of evidence by Mr Butterworth. The concern also extends to the possible use the carpark by buses. Mr Butterworth recognises that it might be used occasionally for buses, for example as a collection point in relation to students going to school camps. He goes on to observe that "extensive and uncontrolled use of the carpark by buses, whilst unlikely at this point in time, would potentially result in a significant loss of amenity to Milton Parade residents. It is also noted that 3 tonne load limit currently exists in Milton Parade".

11. I can see the potential for use of the carpark, for example on Saturdays, in association with use of school sporting ovals, or for occasional evening functions at the Edmund Rice Senior Campus. I can also recognise that, although the parking and bus facilities reached via the main entrance would normally be used, there could occasionally be subsidiary use for buses here for school camps as suggested by Mr Butterworth. Nevertheless excessive use of this sort frankly strikes me as improbable and that the administrative burden on the Applicant and Responsible Authority involved in the contemplated approvals under condition 6, in its present form, seem excessive.

12. The Applicant does not seek completely unrestricted use of the proposed new carpark, but suggests a reworded condition 6 in the following terms: -

"Unless otherwise approved in writing by the Responsible Authority, the carpark hereby approved shall:

(a) be utilised between the hours of 7.00 am and 6.00 pm Monday to Friday and between the hours of 7.00 am and 2.00 pm Saturday;

(b) be utilised on a total of eight evenings per calendar year not later than 11.00 pm with the evenings to be nominated by the school and submitted to the Responsible Authority by 28 February of that year;

(c) only be utilised by buses for a maximum of eight bus trips per week (with one trip being a movement in and a movement out of the carpark)."

13. I take it that sub-condition (c) as proposed above is intended to exclude regular use by commuter buses bringing students to and taking them from the campus on a daily basis, and that any such buses would utilise the facilities of the main entrance driveway. There might be merit in specifically clarifying this point.

14. I propose to modify condition 6 by framing a new condition along the lines of the wording suggested by the Applicant. However, I do not understand on the information before me why as many as eight bus trips per week are sought without the need for permission. I think five should suffice. The Applicant can always seek approval of the Responsible Authority if more are required.

15. I have said that condition 8 raises more difficult problems. That condition, as it appears under a subheading reading "Development Contribution" is in the following terms: -

"8. Prior to the issue of a Statement of Compliance a contribution must be paid for each lot within the subdivision towards the provision of works, services and facilities in the surrounding area to the satisfaction of the Responsible Authority. Agreements may be entered into with the Responsible Authority for the payment of such contributions at appropriate stages where the total contributions are not paid prior to the issue of a Statement of Compliance."

16. It is noted that this original form of the condition seeks to impose a levy of a certain sum per new allotment. The requirement is not to provide or pay for some particular thing required as a direct result of the particular development.

17. The application for review, in its original form, was only against this condition, and the review was on the following sole ground: -

"Condition 8 requiring that a development contribution be levied is ultra vires as Banyule City Council has no Development Contributions Plan for this site incorporated into its Planning Scheme."

18. The expression "ultra vires" means beyond power. The ground essentially meant that, in the absence of a Development Contributions Plan there is no power to impose such a condition.

19. There can be little doubt, in my view, that this point is well taken, and that condition 8, in its original form, is ultra vires and invalid.

20. It appears that the Responsible Authority may have sought and received legal advice to this effect. Condition 8 may be in terms of an outdated "standard condition_"_ used by the Responsible Authority that dates back to before the Planning and Environment (Development Contributions) Act 1995 being Act No. 50 of 1995. That Act, amongst other things, repealed s. 62(2)(h) PE Act as from the 30 May 1997. I suspect that condition 8, in the form in which it appears in the permit, may have been framed and imposed in attempted reliance on paragraph (h), notwithstanding that it had been repealed several years before the permit was issued. I will need to discuss s. 62 more fully hereunder, but I will refer briefly to the terms of the now repealed paragraph (h) here.

21. Section 62 deals with the inclusion of conditions on planning permits granted by the Responsible Authority. Section 62(1) makes provision for certain conditions which must, in particular circumstances, be included. Section 62(2), on the other hand, empowers the Responsible Authority to include "any other conditions that it thinks fit including ...". After that expression there are a number of paragraphs (a) to (m), although (h) and (k) have been repealed.

22. Immediately prior to its repeal, s. 62(2)(h) read: -

"(2) The responsible authority may include any other condition that it thinks fit including -

(h) a condition that specified works, services or facilities which the responsible authority considers necessary as a result of the grant of the permit be provided or paid for in any one or more of the following ways -

(i) be provided on or to the land or other land by the applicant; or

(ii) be paid for in whole or in part by the applicant; or

(iii) be provided on or to the land by agreement between the owner of the land or applicant and any Minister, referral authority, public authority or council providing the works, services or facilities;".

23. It will be helpful to consider the history of s. 62 PE Act in relation to conditions, and its previous equivalence more broadly in due course. As for s. 62(2)(h), this provision first appeared in the planning legislation with the enactment of the PE Act which came into operation on the 16 February 1988. It underwent some minor amendments before it reached the form set out in paragraph 21 above, although those changes are not material for present purposes.

24. The Responsible Authority does not any longer seek to support condition 8 in its original form, which is, in fact, the form in which it presently appears in the permit. It abandoned that form of condition 8, and has put forward a new wording pursuant to directions given by the Tribunal at a directions hearing on the 11 April 2001. The new proposed wording is as follows:-

"8. Prior to the issue of a Statement of Compliance the sum of $48,000, must be paid, being the construction costs of the following works to the subdivision and necessitated by the grant of this permit:

* A roundabout in Melbourne Parade at Shelley Avenue."

25. This is a very different form of condition compared with the original version. This revision may well have been suggested by the Responsible Authority's legal advisers.

26. There is a phrase in the suggested new version which reads rather oddly. I refer to the words "the following works to the subdivision". Why is the word "to" used? I think there is a reason, but the wording appears to be incongruous. It would be more usual to refer to works to land, rather than to "the subdivision". Furthermore, in what sense would the roundabout works be "to" the subdivision, or to the land, inasmuch as the intersection where the roundabout is proposed is remote from the land to be subdivided by something in the order of 150m?

27. The Applicant maintains that the new version of condition 8, like the original, is ultra vires and invalid, again because there is no development contributions plan for the site incorporated in the Banyule Planning Scheme.

28. In her submissions on behalf of the Responsible Authority, Ms Hicks has anticipated the possibility that the second form of condition 8 might also be invalid. In that case she invites me to draft a third version which, she hopes, would be valid. I must confess to a certain caution in relation to this invitation. As will emerge, the subject of the validity of conditions requiring financial contributions has become both muddled and complex. The invitation seems to me to have some aspects akin to asking me for legal advice.

29. However, an important distinction between the original and now proposed forms of condition 8 has to be appreciated. The new version does not propose a per allotment levy for unspecified infrastructure. Rather it proposes a direct payment of a specified sum for particular works namely the proposed roundabout.

30. The amount of $48,000 is put forward on the basis that it represents the total cost of the roundabout. I have some evidence from Mr Butterworth to support this figure, and none to contradict it. I therefore accept it as the appropriate figure for that cost.

31. The condition asserts that the construction of the roundabout is "necessitated" by the grant of the permit. It might be technically more accurate to say that the need for the construction of the roundabout arises, not from the grant of the permit, but from the implementation of the subdivision it allows, if the permit is acted upon.

32. It is common ground between the parties that the construction of the roundabout is warranted or justified if the proposed subdivision proceeds. The purpose of the roundabout is to regulate traffic through the intersection. This regulation includes slowing it down at this point of potential conflict. At present little traffic enters the intersection from the north via Milton Parade, and by far the majority of traffic passing through the intersection comes from, or goes to, Shelley Avenue. At present the roundabout is not necessary because of the limited traffic to and from Milton Parade north of the intersection. With the carrying out of this Stage 4 proposal the situation will change. Traffic volumes to and from the northern arm of Milton Parade will increase, the potential for conflict and danger at the intersection will also increase, and hence the need for the roundabout. The need is put in terms of safety as well as convenience.

33. As I have said, it is common ground that the roundabout is warranted or justified in circumstances of the proposal proceeding. There was some quibbling on behalf of the Applicant as to whether the roundabout is actually "needed". The intersection could function in the sense of providing access to and from Milton Parade and Shelley Avenue, even if no roundabout is erected. It is not absolutely necessary to enable vehicles to get through. Is it therefore only "desirable" but not really "needed"?

34. This question rather echoes a distinction drawn by the Tribunal (constituted by members not including myself) in its decision in the well known case of Eddie Barron Constructions Pty Ltd v Shire of Pakenham & Anor [1990] 6 AATR 10. That was a case about the validity of imposing a development levy per allotment in relation to subdivisions to provide for infrastructure occasioned by the development of an area generally for residential purposes, rather than a condition requiring specific works to be provided or paid for on the basis of them having been required by the development. In this sense the sort of conditions being considered in the Eddie Barron case were more like the original version of condition 8, rather than the later version now contended for.

35. In the Eddie Barron case it was held that there was no reason why development levies of the sort there considered could not be imposed to defray the costs of infrastructure, provided that it could be shown that the levy was warranted in terms of need, equity, accountability and nexus. On page 25 of the report of the Eddie Barron case the Tribunal said:-

"Care should also be taken to ensure that the infrastructure to be provided is `needed' as distinct from `merely desirable'."

36. The Applicant in the present case sought to draw a distinction between what is "needed" and what is merely "desirable".

37. This distinction sounds reasonable and logical until it comes to applying it in particular facts situations, at any rate in relation to facts situations like the present case. "Need" in this sort of context turns out to be a relative term, not an absolute one. Need does not mean absolutely essential. It does not mean, to revert to what the example I gave before, that vehicles would be literally unable to get through the intersection without the roundabout. The assessment of whether something is "needed" has to be made in relation to what is desirable, appropriate, warranted or justified. The presently proposed roundabout might be said to be needed only if it was absolutely essential, and that it is not "needed" in circumstances where vehicles can still get through, even if the intersection is thereby rendered dangerous, inconvenient, inefficient and uneconomic. If there was an accident once a week and a fatality once a month, the majority of vehicles could still get through. If delays of half an hour were encountered at peak times, this would be highly inefficient and inconvenient, but it would not mean absolutely that the roads through the intersection would be unusable. I suppose that the residential development of an island might mean that a bridge would be needed in a narrow, almost obsolete sense, although I suppose that a punt might suffice. If an absolute approach is taken to assessing what is needed facilities like roundabouts, and perhaps even bridges, would hardly ever qualify. I do not think that such a degree of need is the correct test in relation to conditions like the proposed second version.

38. In this connection I recall the decision of the High Court of Australia in Cardwell Shire Council v King Ranch (Australia) Pty Ltd [1984] HCA 39; (1984) 53 ALR 632, 85 ALJR 386 and [1984] HCA 39; 54 LGRA 110. That case involved a residential development and the imposition of a condition requiring the developer to make a money contribution to the upgrading of a road and in relation to a bridge that were necessary to provide access to the development. Without going into all the details, a section of road leading to the development was to be sealed and it was recognised that the increased traffic occasioned by the development would reduce the economic life of an existing bridge so that the need for its reconstruction would be brought forward by a number of years. The High Court upheld the validity of a condition requiring the developer to contribute financially to these costs occasioned by the development. The condition did not contemplate the full costs being borne by developer. Others and the community would benefit, and this was allowed for in assessing the contribution required by the condition.

39. I should note that the King Ranch case arises from Queensland. It is frequently cited and relied upon in relation to the validity of conditions in Victoria. There is always a need for caution in applying interstate decisions in Victoria. It can well be the case that a Queensland decision turns on the Act or planning scheme applicable to the land concerned in that State. The legislation here, both in terms of the planning Act and planning scheme, may be in different terms and these variations may be crucial.

40. The King Ranch case is often cited and relied upon in relation to the question of the validity of planning permit conditions. It ranks along with other well know authorities on this topic such as Pyx Granite Co Ltd v Ministry of Housing & Local Government [1958] 1 QB 554, 271 William Street Pty Ltd v City of Melbourne [1975] VR 158 and Protean (Holdings) Ltd v Environment Protection Authority [1977] VicRp 5; [1977] VR 51. I considered these and other authorities on this question in some detail, and resolved (at least to my satisfaction) a perceived inconsistency between them in Rosemeier v City of Greater Geelong (No. 1) [1997] 20 AATR 86, variously, but in particular from paragraph 67 on page 102 onwards.

41. Although King Ranch does turn on a particular form of words in the relevant Queensland legislation applicable in that case, I am satisfied that they are merely different words, but to the same effect, as the tests discussed in the various authorities considered in Rosemeier No. 1. In King Ranch the power of the local authority to grant permission for subdivision under s. 34(10) of the Local Government Act 1936 (Qld) was subject to restrictions imposed by s. 33(16C) of that Act, see the bottom of page 633 of the ALR report. That sub-section provided that it was unlawful for the authority to impose a condition not prescribed by the scheme or by-law "or reasonably required by ... the subdivision". The High Court held, on the findings of facts made in the court below in that case, that this test of being "reasonably required" was satisfied. The equivalent test in Pyx and subsequent cases is that the proposed condition "must fairly and reasonably relate to the permitted development".

42. Perhaps I can attempt to summarise the tests for planning permit validity expounded and developed in Pyx and the other authorities referred to in Rosemeier No. 1. In Pyx at page 572 Lord Denning said:-

Although the planning authorities are given very wide powers to impose such conditions as they think fit, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. Planning authorities are not at liberty to use their powers for an ulterior motive, however desirable that object may seem to them in a public interest.

43. The power and discretion to grant permits and impose conditions must be exercised for the purposes for which the power is granted. Even the pursuit of some legitimate planning policies, extraneous to the purpose of the particular discretion being exercised, is regarded as ulterior. Subject to this the condition must be related to planning purposes and reasonably capable of being related to the implementation of planning policies, or at any rate to have that effect. What is relevant to planning for this purpose is not to be determined by some preconceived notion of what town planning is about. It is to be discerned from the applicable planning legislation which includes the relevant planning Act and planning scheme.

44. Any administrative decision can be found to have miscarried and to be invalid if irrelevant considerations were taken into account in exercise of discretion, or if relevant considerations were not taken into account. Furthermore, if the decision made (including whether to grant a permit or whether to impose a condition) is so unreasonable in the circumstances that no decision maker properly instructing itself in relation to what is relevant, could not have reasonably come to the decision in fact made, then the decision will be held to have miscarried, even if the exact point of error cannot be identified.

45. This is to be contrasted with a situation where the decision maker has made a decision that was reasonably open to it. In that circumstance the decision is valid and a court will not interfere with it. In such a case a court will not substitute its own decision for that made by the authority that exercised the discretion. The court will not hold an administrative decision to be invalid merely because the court thinks another view is preferable. That would be to take over the role of the decision maker. However, it will hold a decision, including the decision to impose a condition, invalid if it was not reasonably open to impose a condition, or impose it in that form.

46. A condition might also fail if it is so vague or uncertain or ambiguous that its requirements cannot be understood.

47. Furthermore, a condition that is repugnant to the law, for example as contrary to a relevant statutory provision in an Act or planning scheme, will be ultra vires (that is beyond the power granted) and thus invalid.

48. Of course the High Court, in its assessment of the validity of the conditions in King Ranch, did not look for "need" in an absolute sense. There was a trafficable road and bridge so that access could be gained. However, the additional wear and tear that would be occasioned by the proposal reasonably required the contribution to the upgrading of the road and the ultimate replacement of the bridge, having regard to its reduced life expectancy. These circumstances amounted to a sufficient nexus or relationship between the proposal and the condition sought to be imposed. I think that there is a similar and sufficient relationship between the permit in the current case and the proposed new version of condition 8. If Stage 4 proceeds the roundabout becomes necessary. Not absolutely to afford any access at all, but necessary to afford safe, suitable, appropriate, reasonable, convenient and efficient access of a standard that is proper in the circumstances. Mr Hunt's expert evidence justifies such a conclusion if necessity is viewed in that sort of way.

49. The roundabout is not needed if Stage 4 does not proceed. Equally, I suppose, it would not be needed if Stage 4 was already developed but there was no Shelley Avenue linking into Milton Parade. It is the circumstance where the northern leg of Milton Parade and Shelley Avenue combine onto the balance of Milton Parade that the roundabout becomes necessary.

50. According to the ordinary rules or tests for assessing the validity of permit conditions as developed in the cases mentioned in Rosemeier No. 1 it would be valid and appropriate to impose a condition requiring a contribution to the costs of this roundabout from the developer of Stage 4. It does not matter that the roundabout would not be on the subdivision land or in a part of Milton Parade fronting or running through the subdivision land. It would be enough that the need is caused by the development. This is in accordance with King Ranch where the road sealing and bridge were not wholly immediate to the land being developed.

51. As a matter of fact, it is and has been common, for Responsible Authorities and the Tribunal to impose conditions of this sort in relation to various developments where such needs arise. A new Bunnings store on a greenfield site might well demand changes to the road that were never needed prior to the development. For example, there might be need for a new break in a median strip, perhaps with a suitable slip lane, to enable customers and other vehicles to safely gain access to the land. There might be a need for new traffic islands or perhaps a new pedestrian crossing or traffic signal occasioned by new retirement village, or a substantial extension of an existing one. It is, and has been, common to impose conditions requiring such costs to be borne by the developer occasioning them, or perhaps to require a contribution where the need is partly occasioned by the development and partly occasioned otherwise. Indeed I would go so far as to say that it would be a most unreasonable and undesirable if such conditions could not be imposed in suitable cases. Many otherwise viable and even desirable developments will be untenable and will be refused if such conditions, designed to overcome problems occasioned by developments, cannot be imposed.

52. Applying the long recognised principles in relation to the validity of conditions I would uphold a suitably worded condition requiring an upgrading of the intersection by the installation of a roundabout occasioned by the Stage 4 development.

53. That does not necessarily mean that the Applicant for this permit should necessarily bear 100% of the cost of the roundabout. The Responsible Authority argues that the need does not exist until Stage 4 proceeds, and in that sense the need arises from Stage 4 and therefore the Stage 4 developer should finance the whole thing. Mr Hunt assesses the contribution of Stage 4, as compared with Shelley Avenue, at 40% of the whole. He does this in terms of traffic contribution. He assesses Shelley Avenue as a "collector" road, rather than a local access street. This means that it carries traffic, not only from properties fronting itself, but also for contributory streets that intersect with it so that it serves a wider purpose. He points to the width of the reserve and the pavement in Shelley Avenue, which exceeds normal dimensions for an access street, as part justification for this view. The Responsible Authority resists this classification and wishes Shelley Avenue to be regarded as an access street only. For what it is worth, I think Mr Hunt's assessment is the correct one, having regard to the purpose and function of Shelley Avenue which is reflected in its dimensions. I note that the Tribunal in the earlier case about the development plan describes Shelley Avenue as a collector road.

54. Whatever it is classified as, I think both it, and Milton Parade make their respective contributions to the need for the roundabout. Apportionment in such a situation cannot be exact, and I am not satisfied that traffic volumes are the be all and end all of such an assessment. Ultimately one has to make a judgement on a question like this, having considered the relevant circumstances. Having done this, I am content to say that I think that 50% in respect of each street is as near as I can judge the appropriate apportionment. On this basis I would, if there were no other complications, require a contribution by means of a condition of $24,000 in relation to a permit for Stage 4.

55. Unfortunately, there are complications that I must consider. It is not as simple as one could wish. Before going on, however, I will deal with another point raised on behalf of the applicant.

56. It was submitted on behalf of the applicant that the expression "as a result of the grant of the permit, in s. 62(5)(b) means, in effect, that the grant of the permit must be a sole reason for the roundabout and "that the roundabout is required for a range of reasons and not only arising as a result of the issue of the planning permit". I do not think that this argument avails the applicant. It is true that the roundabout would ultimately be required because of the traffic demands of both Milton Parade and Shelley Avenue, and in this sense the roundabout might be said to be not solely a result of the Stage 4 development. Nevertheless, Stage 4 is a significant cause of that result, and the one which triggers the need for the solution proposed. In these circumstances I think that the roundabout is necessary, as a result of the grant of the permit.

57. I said earlier that I would review the history of the statutory provisions authorising the imposition of conditions on planning permits. The present section is s. 62 PE Act. Sub-section (2) of that section provides that the Responsible Authority may include any other condition that it thinks fit, including conditions of the sorts referred to in the following paragraphs (a) to (m). It should be noted that paragraphs (a) to (m) are not, in terms, restrictions on the general power to impose such conditions as the Responsible Authority thinks fit. They are not a list of restrictions. They are an inclusive list of powers to impose conditions. Sub-section (2) clearly gives a wider power to impose conditions, not limited to (a) to (m); otherwise the word "any other condition it [the Responsible Authority] thinks fit" would become redundant. If that was intended, then the introductory words of sub-section (2) should, and would have read something like "the Responsible Authority may include other conditions namely". There would be various ways of drafting such a provision. It would be possible to follow the form of the Queensland Local Government Act referred to in the King Ranch case by putting the power in the negative. Sub-section (2) could be drafted to say that the Responsible Authority may not impose any other conditions except: to be followed by paragraphs (a) to (m). One way or another the word "including" would not appear at the head of the list.

58. In my opinion it is quite clear that paragraphs (a) to (m) are not expressed to be, not intended to be, and are not exclusive, and do not have the effect of limiting the discretion to impose any other condition that the Responsible Authority thinks fit. The same cannot however be said for s. 62(6) which will be discussed later. It does some excluding.

59. Although expressed in such general terms, sub-section (2) is not an unlimited discretion. It is limited, and always has been, by the tests of validity for planning permit conditions developed by common law through the decisions starting with Pyx Granite many of which are gathered together and discussed in Rosemeier No. 1 and which I have attempted to summarise above. In particular such conditions must fairly and reasonably relate to the proposal and be directed to planning purposes or policies discerned from the planning legislation.

60. Section 62 PE Act was enacted, in its original form, on the 16 February 1988 with the coming into operation of the PE Act. The forerunner of that Act was the Town and Country Planning Act 1961 (TCP Act). The TCP Act of that year became the principal planning Act until the coming of the PE Act. Behind that again was the Town and Country Planning Act 1958 and other town planning legislation back to the Town and Country Planning Act 1944. In fact a more primitive form of town planning than that was constituted by planning by-laws by municipal councils pursuant to s. 197(1)(xxxviii)(a) of the Local Government Act 1958 (together with sub-sections (6) to (9) inclusive thereof) and its forerunners.

61. The TCP Act evolved over its lifetime until its repeal with the coming into operation of the PE Act. I take up the story of the power to impose conditions on planning permits with the TCP Act 1961 as it stood after the coming into operation of s. 12 of the Town and Country Planning (Amendment) Act 1968 on the 3 February 1969.

62. Section 18 of the TCP Act dealt with applications for permits, and the granting of permits, under interim development orders. Interim development orders under that Act were a form of temporary planning control, like a temporary planning scheme, brought into force to deal with the interim between the commencement of the preparation of a planning scheme and its ultimate approval. Many provisions in relation to applications for, and the granting of, permits under interim development orders appeared in s. 18 and subsequent sections in relation to. However, those provisions were also relevant to planning permits under planning schemes. Although expressed to apply to interim development orders, s. 27(4) of that Act adopted them and applied them in relation to approved planning schemes as well.

63. In 1969 s. 18(2) TCP Act provided for the Responsible Authority to consider every application for a permit and (subject to certain specified provisions), empowered the Responsible Authority to:-

"grant of refuse to grant the permit or grant the permit subject to such conditions as it may think proper."

64. Section 27 dealt with permits under planning schemes. Sub-section (1) provided that any planning scheme restricting the use or development of land could "authorise the grant by the responsible authority of permit for such use or development". Section 27(2) provided:-

(2) Any such permit may be granted subject to such conditions (if any) as are specified in the scheme and, where the scheme so provides, to such conditions as the responsible authority may in its discretion include in the permit.

65. Section 27(4), in its extension of the provisions in relation to permits under interim development orders to apply also to permits under planning schemes, included the interim development order provisions in relation to appeals against decisions of responsible authorities.

66. The point is that the planning Act of that day empowered the granting of permits including the imposition of conditions. This included the power to impose such conditions as the Responsible Authority thought proper. The power thus given to impose conditions was expressed in very general terms, and without any subsidiary provisions such as now appear in the paragraphs under s. 62(2) PE Act.

67. Of course this power was always confined by the common law principles and the tests as to permit validity to be found in Pyx Granite and the other authorities on that subject including those discussed in Rosemeier No. 1. It can be noted, by the way, that Pyx Granite itself is an English case dating back to the 1950's, having been reported in 1958. It predated the TCP Act of 1961.

68. In fact the idea of Victorian planning permits being granted subject to conditions goes back through earlier Town and Country Planning Acts to that of 1944. Section 12 of the 1944 Act dealt with interim development orders and the proviso to sub-section (1) thereof authorised responsible authorities to grant permits "subject to such conditions as are specified in the permit". Again this provision, repeated in s. 14 of the 1958 Act, was in general terms without statutory limitation or amplification.

69. I use the word amplification deliberately as I believe that subsequent accretions have been to amplify, clarify and/or validate conditions, rather than to restrict them. The restrictions on the power to impose conditions, in the absence of specific statutory prohibitions, are still to be found in Pyx Granite and the other cases referred to.

70. The first addition to the statutory power in the TCP Act to impose permit conditions came with s. 12(b) of the Town and Country Planning (Amendment) Act 1972 which, on the 1 October 1973 introduced s. 18(2A) to the TCP Act. It provided:-

(2A) A permit may be granted subject to such conditions as the responsible authority thinks proper including a condition that specified matters or things to be done to the satisfaction of the responsible authority.

71. I think it is obvious that the inclusion of a condition requiring something to be to the satisfaction of the responsible authority did not restrict the general power to impose conditions granted by the earlier words. That power was restricted by Pyx Granite and the other cases, but not otherwise. Any condition satisfying the tests of validity which could have been imposed on a permit prior to the enactment of s. 18(2A) could still be imposed afterwards.

72. What then, is the purpose of the words of amplification? It was common, at the time of this enactment, for responsible authorities or the Tribunal to impose conditions requiring that things be done to the satisfaction of the responsible authority. From time to time there were arguments about whether such conditions were valid. It was suggested, for example, that it might be an illicit delegation by the Tribunal for it to defer matters, such as, for example, details of proposed landscaping, to the responsible authority by imposing a condition of this sort. Such a condition might require such landscaping to be carried out and maintained to the satisfaction of the responsible authority, perhaps in accordance with an approved landscape plan, itself to be to the satisfaction of the responsible authority. If the Tribunal was charged with the responsibility of determining a permit application, could it validly defer and delegate to a body other than itself the determination of incidental details of various sorts?

73. I have always taken it that this enactment of section 18(2A) was to put the matter beyond doubt by specifying that such conditions are valid, whether or not they would be valid pursuant to the relevant tests. The enactment of such a provision might be to make valid something that clearly otherwise would be invalid, or it may be to remove doubt about the matter where there was room for argument as to whether the condition would be valid in accordance with the tests if it stood alone and without the support of the clarifying provisions. I have discussed this point elsewhere including briefly in Frankston City Council v Kaybea Pty Ltd (unreported review 1999/24121 at 2000/33540) at paragraph 21 on page 11.

74. The use of such conditions continues, and is common today. The equivalent of the original amplification appears in the PE Act at s. 62(2)(a), now expanded to enable the requirement of satisfaction from a Minister, a public authority, a municipal council or a referral authority as well as or instead of the responsible authority. In fact the use of such conditions is highly convenient and works well. Furthermore, there is now a remedy where disputes arises to what the responsible authority should be satisfied with, see s. 149 PE Act.

75. With the commencement of s. 8(b) of the Town and Country Planning Act (General Amendment) Act 1979 on 3 November 1980 a further amplification provision was added by the insertion in the principal TCP Act of s. 18(2A)(b), with the original amplification about satisfaction of the responsible authority becoming paragraph (a). The new provision read:-

(b) in the case of a permit in respect of land on which there is a building work, object or site specified as being of architectural historical or scientific interest or natural beauty or interest or of importance or which is in an area specified as being of natural beauty or interest or of importance or of special significance, a condition that any building on the land to which the permit relates shall not be demolished until all permits for the re-development of the land required by or under this or any other Act to be obtained prior to the commencement of the re-development have been obtained and the owner has entered into a bona fide contract for the construction of such re-development.

76. This gave, or assured, by removing possible doubt about, the validity of conditions of the sort described in that new paragraph.

77. A further amplification in the form of s. 18(2A)(c) was introduced into the Town and Country Planning Act on the 12 December 1983 by s. 6 of the Town and Country Planning (Amendment) Act 1983. That new provision read:-

(c) A condition that the owner of the land enter into an agreement with the responsible authority pursuant to section 52A.

78. The same amending Act also introduced s. 52A into the TCP Act. Section 52A is the forerunner of the present s. 173 (and subsequent sections) of the PE Act. It gave statutory recognition and validity to agreements in relation to the prohibition, restriction or regulation of the use or development of land and other things related to planning. Deeds under seal had been employed with a view to assuring continuing control over matters that an owner of land might be willing to agree to where an attempt to secure such things merely by permit conditions was arguably of doubtful validity. Prior to the amendment such an agreement was a private contract whereas now it became public. Such agreements are now enforceable under the planning legislation and there is provision for notice of them to be given by endorsement on the relevant certificate of title to the land. The new s. 18(2A)(c) made it clear that a condition requiring such an agreement would be valid. As such it can be seen as part of a legislative arrangement to give the certainty of statutory validity to arrangements that might otherwise be of doubtful validity.

79. By this stage there were three amplifications, none of which, to my understanding, constricted the continuing power of responsible authorities to impose any conditions thought fit, although that general power was always subject to the restrictions of the tests of validity in Pyx Granite and the other cases.

80. Conditions requiring the provision or financing or part financing of works on and off the land concerned, similar to the King Ranch condition or the second proposed version for condition 8 in the permit now under consideration, were imposed and rightly regarded as valid if they satisfied the common law tests of validity. They came under the introductory words of s. 18(2A) which preceded paragraphs (a) to (c) inclusive which read:-

"(2A) A permit may be granted subject to such conditions as the responsible authority thinks proper including - ..."

Whilst coming under those words, they did not rely on paragraphs (a), (b) or (c) for validity.

81. Almost identical introductory words appear in the present s. 62(2) PE Act. Section 62 deals with the imposition of conditions on permits. Sub-section (1) deals with conditions that must be imposed. That sub-section had its equivalent in the previous TCP Act. Section 62(2), dealing with the power and discretion to impose non-compulsory conditions reflected the old s. 18(2A) TCP Act. Its opening words are:-

"(2) The responsible authority may include any other condition that it thinks fit including - ..."

82. Thereafter paragraphs (a) to (m) appear. This list of amplifications has been amended from time to time since first enacted, but the reference in relation to conditions requiring things to be done to the satisfaction of the responsible authority appears in paragraph (a) and the one in relation to s. 173 agreements in paragraph (f). As the numbering, or perhaps lettering, implies a number of other types of conditions were also referred to. The list has since, no doubt, served as a checklist providing inspiration or a reminder of possibilities to people drafting conditions for permits. It is also served to remove possible doubt or argument about the validity conditions of the various sorts concerned. The paragraphs have only been necessary to provide that validity in relation to conditions which might be found to lack it under the common law tests. Such specification not only removed doubt, but also removed the need to argue and adjudicate upon such validity questions in planning appeals. With such amplifications it has been seldom, if ever, necessary to tests conditions against the common law rules if they are clearly valid, in any event, under these statutory provisions.

83. A case in point was the now repealed paragraph (h) reproduced in its ultimate form in paragraph 22 of these reasons. It enabled a condition requiring the provision of works, services or facilities that the responsible authority considered necessary as a result of the grant of the permit, or that they be paid for, in whole or in part, by the applicant. It also made it clear that these works, services and facilities could be provided "on or to the land or other land".

84. In my view a King Ranch condition, or the second version of condition 8 contended for in this present case, would have been sustained by paragraph (h) of s. 62(2) while it lasted, without having to refer to the King Ranch case and other common law authorities which, in any event, would sustain it. Paragraph (h) was clear and convenient and provided a ready answer to the suggestion raised from time to time that a condition could not require works off the land to which the permit was to apply.

85. I have always been of the view that a condition referred to in paragraph (a) to (m) of s. 62(2) PE Act might nevertheless be sustained on the basis of the common law tests, providing that those tests were satisfied. This accords with the purpose, or part of the purpose, of the paragraphs being to remove doubt and needless debate about conditions of a type that the legislature considered should be able to be imposed. In my view a King Ranch type condition, and a properly worded condition like the present number 8, is justified under the common law tests without reliance on the now repealed paragraph (h).

86. This raises the question as to the continuing validity of King Ranch type conditions, now that paragraph (h) has been repealed. If such conditions were supported by the common law rules, and also by paragraph (h), does their validity remain intact on the basis of the common law tests standing alone, in spite of the repeal of paragraph (h), or does the repeal of paragraph (h) show an intention, and carry out an intention, on the part of the legislature to prohibit such conditions. As I have already indicated, it would be inexpedient in the extreme, from the point of view of proper town planning, if such conditions were not able to be imposed. But, if the law has removed the power to impose them, then they are ceased to be available.

87. In my view King Ranch type conditions can still be imposed like other conditions that satisfy the common law tests. The power to impose them pre-existed paragraph (h). If Parliament had intended to make them unavailable it could and should have said so explicitly by inserting a provision saying that they cannot be imposed and, presumably, dealing with the continued validity or otherwise of such conditions in existence that were valid when imposed. I think it improbable, when the context of the repeal of paragraph (h) is considered, that the Parliament had any intention to abolish the availability of King Ranch type conditions, or that its attention (or the attention of the Parliamentary draftsperson) ever went to such a question. If it was intended it should have been said, rather than that it should be implied that the power to impose such conditions has been removed by the repeal of paragraph (h).

88. A new controversy came upon the town planning scene perhaps 10 or 12 years ago. This was to do with development levies to defray the costs, not just of works and services necessary to serve a particular development and made necessary by it, but to make provision of wider social and physical infrastructure required for a larger developing area. Where a new suburb or residential area is developing on a previously greenfield site it can be anticipated that future residents will need more than roads and reticulated services. They will need community centres, childcare centres, libraries and other things. If a planning permit is applied for, say a residential subdivision of 100 allotments, it was clear enough that a paragraph (h) cum King Ranch type condition could be imposed to provide works, services or facilities necessitated by it, but could this idea extend to imposing a levy of so much per allotment to be contributed to a fund to provide for these wider social infrastructure needs that can be anticipated to arise from the residential development of the larger area as a whole, of which the particular proposed subdivision would be a part? Can this be seen as a legitimate new and broader extension of the more particular King Ranch cum paragraph (h) conditions already recognised?

89. This, when it is examined, turns out to be a complex subject. It is not appropriate to go into all its complexities here. However, the question was dealt with by the Tribunal in the Eddie Barron case in 1990. The result of that case had anticipated in planning circles because of the importance of this question. It was regarded as something of a "landmark" decision. In the event the Tribunal decided, that at least in some circumstances, there was no reason why such development levy conditions could not be imposed on planning permits granting permission for this sort of development. The reasons of the Tribunal in that case also considered the circumstances in which such development levy conditions would be available including the need to satisfy the quadruple criteria of need, equity, public accountability and nexus. The meaning and need for these criteria were discussed. The decision indicating the availability, at least in those circumstances, of a condition imposing such a development levy which might be seen as an extension of the already established King Ranch cum paragraph (h) type conditions, or at any rate a new and particular application. Naturally the reasoning in the Eddie Barron case included reference to paragraph (h). There is also fairly extensive consideration of various authorities in relation to permit conditions. Starting at first full paragraph on page 24 of the report of its reasons the Tribunal said:-

It is accepted by the Tribunal that the principles and qualifications in the Rockdale case are applicable to the general condition making power conferred by Section 62 of the Planning and Environment Act 1987 and accordingly there may, in appropriate cases, be legitimately imposed conditions requiring the payment of a sum of money. [The Rockdale case is the decision of the Supreme Court of New South Wales in Rockdale Municipal Council v Tandel Corporation Pty Ltd (1974-1977) 34 LGRA 196 discussed in the Eddie Barron reasons commencing on p. 21].

It was submitted by the Minister for Planning and Environment that Section 62(2)(h) specifically authorised the payment of development levies. This section provides ...[the terms of paragraph (h) were then set out as they appear in paragraph 22 above].

The Tribunal considers that whether a condition is purported to be imposed pursuant to Sections (sic) 62(2)(h) or pursuant to the general condition making power, the same criteria will apply. These are set out above. A similar view was expressed by the Planning Appeals Board in Construct No. 2000 Pty Ltd v Shire of Cranbourne (28 APAB) ... [the Tribunal then goes on to discuss that case]."

90. The Minister was represented in the Eddie Barron case by Mr M Jack, acting manager of the Strategy Planning Branch of the Department. It is interesting to note that he emphasised reliance on s. 62(2)(h) as the support and justification for development levy conditions. The Tribunal however, as can be seen from the above quotation, took the less confined view that s. 62(2(h) was one of two alternative bases available.

91. The Eddie Barron decision, important as it was, did not resolve all the difficulties and controversies attendant upon the subject of development levy conditions. Arguments about various aspects including fairness, consistency and workability persisted. This was in spite of the Minister for Planning and Housing issuing "Guidelines for Development Contributions, October 1991". Some of the difficulties were later referred to by the subsequent Minister for Planning in his Second Reading Speech introducing the Planning and Environment (Development Contributions) Bill 1995. He indicated major concerns as:-

lack of consistency in application between councils and between residential and commercial development;

rapidly increasing range of infrastructure being funded by levies and the increasing size of the developer's contribution;

lack of certainty for developers to predict a cost and for councils to budget for infrastructure;

instances of inadequate justification for the items of infrastructure included in the levy, the amount and timing of payment; and

lack of clear accountability for expenditure of contributions.

(The Honourable R McLellan, Minister for Planning and Local Government, Second Reading Speech in the Legislative Assembly, Parliamentary Debates, 4 May 1995, p 1240-1).

did not provide sufficiently detailed advice to ensure consistency and certainty, given the somewhat general nature of the relevant provision of the Planning & Environment Act - section 62(2)(h).

92. I note here the exclusive reference to s. 62(2)(h). There is no specific mention here of the Eddie Barron proposition that such conditions might be justified on the common law tests of condition validity if they were satisfied, or of the actuality that s. 62(2)(h) had its existence, place and importance in relation to King Ranch type conditions, quite apart from whether the development contribution levy variant is valid.

93. I will come back to this 1995 amending legislation. In 1993 the Department of Planning and Development established a reference group to review development contribution levies. Its terms of reference included "to assess the scope and operation of development contributions currently leviable by local government under s. 62(2) of the Planning and Environment Act 198". [Appendix A p. 34 of the report of the reference group]. The reference group report was released in April 1994 and contained recommendations for an improved process in relation to development levy conditions, although it proposed to leave untouched the implementation of development by agreements under s. 173 of the PE Act. Ultimately the Planning and Environment (Development Contributions) Act 1995 was passed. Also, in December 1995, the Department of Planning and Development issued new guidelines entitled "Guidelines for Development Contributions, December 1995".

94. It is of considerable importance to notice that the Planning and Environment (Development Contributions) Act 1995 (PE Contributions Act) is concerned with development contribution levies and not with the subject of planning permit conditions generally, or even what I have been calling King Ranch conditions. This, in my opinion, is abundantly clear from a reading of the amending Act itself and this is corroborated by surrounding considerations like the Minister's Second Reading Speech, the development contributions guidelines, the history of this particular subject and its associated problems in planning and the relevant surrounding circumstances. Perhaps it is sufficient to consider only the amending Act and the Second Reading Speech.

95. The PE Contributions Act introduces a new Part 3B, headed "DEVELOPMENT CONTRIBUTIONS" to the PE Act. Part 3B is constituted by new sections 46A to 46Q PE Act. It provides for the collection of development levies pursuant to development contribution plans for the provision of works, services and facilities, such plans to be incorporated in planning schemes. Its conception of development levies differs from the provision or payment for works particular to a development by a King Ranch condition in several important ways already referred to. Quite apart from having a development contributions plan incorporated in the planning scheme, as now required for levy conditions, this concept involves a levy per lot rather than a condition requiring the provision of, or payment for, or contribution towards, works applicable to the proposal as a whole. (There appears to be some scope for some other levies than those on residential allotments). Furthermore, such contributions from levies are to be in relation to a wider area, specified in the development contributions plan. Both these features, reflected in the development contributions part (part 3B) of the PE Act, also arose in the Eddie Barron decision but, as I have observed, are foreign to the classic King Ranch conditions concept.

96. Section 46J provides that development contributions plans can provide for either or both of the imposition of a "development infrastructure levy" and a "community infrastructure levy" in relation to the development of land in the area to which the plan applies. Unfortunately these concepts are not defined in the definitions in s. 46H or elsewhere. The distinction is of some importance because s. 46L(1) imposes limits on the amount that can be required as a community infrastructure levy where that limitation does not apply to development infrastructure levies. The charge can be no more than $450 per dwelling, with another formula applicable to other forms of development.

97. The difficulty with the development infrastructure levy, and the lack of definition of that expression, is that it leaves room for some overlap or blurring of what sort of development is to be covered. Development contributions plans are to make provision for works, services and facilities, a phrase that appeared in paragraph (h). Are the sort of works required or paid for under a King Ranch condition also capable of being financed by a development infrastructure levy under a development contributions plan? This may well be possible. It makes it difficult to keep clear the distinction I have been seeking to maintain. Nevertheless one element of distinction does remain clear. That is the notion of a levy.

98. It is not a levy to impose a condition requiring a roundabout, traffic island or bridge to be provided. Correctly using the term levy, which I think means collecting a contribution or tax in accordance with a fixed formula and in this context applicable to lots or dwellings created, is different from a condition requiring a developer to meet the cost of some works. If a signal controlled pedestrian crossing becomes necessary because of the creation of a retirement village on a road, and a condition requires the developer to pay for it, the assessment is made on the basis of the costs of the new works which is chargeable to the developer. There is no occasion for it being a "levy" in relation to the number of dwelling units in the retirement village which might be 100 or 300 or any number. Perhaps this distinction becomes less clear when there is occasion for some apportionment so that the developer is called upon to pay half or some other fraction of the total cost of works having regard to the community benefit or benefit to others.

99. Apart from creating Part 3B of the Act in relation to development contributions, the PE Contributions Act had to deal with the question of permit conditions. If a new set of statutory provisions was to be introduced dealing with development levies to be imposed under development contribution plans, with the use of what might be called Eddie Barron infrastructure levy conditions for the purpose, then some amendments to s. 62 would be called for. Since infrastructure levy conditions had been held valid, at least partly on the basis of s. 62(2)(h), then that provision might need surgical attention. What was done was to repeal paragraph (h) and to enact new sub-sections 62(5) and (6).

100. The approach taken to the problem seems to be based on two assumptions which, in my opinion, are incorrect. The first is the assumption that the validity of Eddie Barron contribution levy conditions depended solely on paragraph (h). Although Mr Jack apparently submitted as much at the Eddie Barron hearing, the Tribunal, on my understanding of it, was of the view that the validity of such conditions could be founded on the common law tests.

101. The second assumption, related to the first, is more serious. It seems to have been assumed that the relevance, usefulness and importance of paragraph (h) was limited to the question of Eddie Barron infrastructure levy conditions, and that it served no other purpose. On this basis it might be assumed that it could be safely repealed if such levy matters were to be dealt with otherwise. However, paragraph (h) conditions were not limited to development levy conditions to finance infrastructure. It was just as relevant to a condition requiring works on or off the land to be carried out by the developer. This might include conditions requiring the developer to do such things as to fill in and make safe an old mine shaft, remove a dangerous tree or structure, provide a carpark or retaining wall, remove a redundant vehicle crossing and make good the kerb and naturestrip, or provide a new one where required or, indeed, to provide a new traffic island or street trees or pedestrian crossing or intersection roundabout off the land. For convenience I will refer to these sorts of conditions as the mine shaft type. I am referring here to conditions that do not require the payment of any money at all, but that require the developer to carry out such works to the satisfaction of the responsible authority, admittedly at the developer's expense (unless it is seen fit to make some concession in that respect in the interests of equity). The same is true if, instead of requiring the developer to carry out such works to the satisfaction of the responsible authority or some other authority, the condition provides for the responsible authority or other authority to carry out the works and for the developer to pay for them. Is the ability to impose such conditions lost because paragraph (h) is repealed in the course of reforming the law in relation to some other type of condition, also held to be within the paragraph (h) family?

102. In my discussion of the history of permit conditions, including the history of s. 18 TCP Act and s. 62 PE Act, I have concluded that the repeal of paragraph (h) has had no such effect and that the validity of such conditions is maintained, as it was before the enactment of paragraph (h), on the basis of the common law tests of validity. This would still leave room for argument as to whether the validity of a particular proposed condition could be supported on the basis of those tests. There was no argument advanced in the hearing of the present case on this point, although I raised it in the course of discussion by suggesting that such a condition was sustainable on the basis of the introductory words to s. 62(2) together with those tests. This matter was not taken up. Indeed it was suggested that this approach was rendered untenable by the decision of the Supreme Court in Curry v Melton Shire Council [2000] VSC 352 and 7 VPR 109. I will need to refer to that decision again.

103. The survival of the validity of such conditions is an important point. I recognise that there may be room for other views as to the effect of the repeal of paragraph (h). However, as I have said, if the wider family of conditions covered by, paragraph (h) including King Ranch conditions and the other sorts of development conditions I have referred to in the mine shaft type, are lost by the repeal of paragraph (h), a serious situation has arisen. In that event I would suggest that legislative rectification would be urgently required to restore the power to impose such conditions inadvertently, I would suppose, effected by the repeal of paragraph (h).

104. If responsible authorities and the Tribunal cannot impose any such conditions, then the incidence of the refusal of permit applications is going to increase greatly. It is frequently the case that a proposal is only considered acceptable, and only receives permission, because of the ability to impose such conditions. The need for such conditions is frequently, indeed usually, recognised on all sides, including the side of the permit applicant who would have to bear the burden of the condition, and readily accepted. I might say that the Curry case concerned a development levy condition, not what I have called a King Ranch condition or any other condition of the sort mentioned in the mine shaft type above. In the Curry case the Supreme Court struck down the development levy condition imposed by the Tribunal and remitted the case to the Tribunal to be further heard by the member who had originally heard the case to decide whether the offending condition was severable leaving the balance of the permit on foot, or whether it should be cancelled pursuant to s. 85(g) PE Act on the basis that, there being no power to impose the condition, the Tribunal considered that it "should not or would not" have been granted without the condition. The Curry case has been remitted and I note that the condition was held not to be severable and that it should not or would not have been granted without the condition with the result that the permit has been cancelled. I mention that here because it illustrates that the absence of the power to impose King Ranch conditions may result in otherwise acceptable permits not being granted. If that is so in relation to the restricted field of King Ranch conditions how will it be, I ask rhetorically, if the responsible authority and the Tribunal are now unable to impose conditions requiring works to be done on or off the land that are rendered necessary by the proposal for which permission is sought?

105. Talk of throwing out babies with bath water has become a stale cliché. I will attempt another figure of speech. Modern surgery has many advantages over surgery in the 16th and 17th century. Apart from sterilisation and antibiotics, modern surgeons have the advantages of highly detailed knowledge of anatomy and the availability of anaesthetics. They can work carefully, and as slowly as necessary, to deal with intricate pieces of surgery so as to avoid collateral damage to nearby organs, nerves, blood vessels, muscles and the like. In the mid 17th century, when Samuel Pepys was "cut for the stone", surgeons had less detailed knowledge of anatomy and had to work very fast (less than a minute to remove a bladder stone) lest the conscious patient die of shock. The danger and incidence of collateral damage was much greater. It seems that the draftsperson in removing a "stone" (to have done with development levy contributions under paragraph (h)) has scooped out the whole organ which also served other important functions. It is fortunate then, if I am right in finding that these functions are nevertheless sustained by an alternative means namely the initial words of s. 62(2) taken together with the common law tests of permit conditions validity, that these other functions have not been lost.

106. The repeal of paragraph (h) goes together with other amendments introduced by the PE Contributions Act . They include the new Part 3B of the Act dealing with development contributions plans and other consequential amendments to s. 62 PE Act. These other amendments are the introduction of sub-sections (5) and (6) of s. 62. These sub-sections read:-

"(5) In deciding to grant a permit, the responsible authority may-

(a) include a condition required to implement an approved development contributions plan; or

(b) include a condition that specified works which the responsible authority considers necessary as a result of the grant of the permit-

(ii) be paid for wholly by the applicant or partly by the applicant where the remaining cost is to be met by any Minister, referral authority, public authority or council providing the works.

(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide services or facilities other than-

(a) a condition required to implement an approved development contributions plan; or

(b) a condition requiring services or facilities to be provided in accordance with an agreement under section 173."

107. It is to be noted that s. 62(5) empowers the Responsible Authority (or the Tribunal on review) to impose certain conditions. This power, on the face of it, does not exclude other conditions that the Responsible Authority is empowered to impose, either under paragraphs (a) to (m) of s. 62(2), or, subject to the common law tests of validity, under the general opening words of s. 62(2).

108. Section 62(6), on the other hand, is not expressed in terms of empowering certain conditions, but rather it prevents the imposing of certain sorts of conditions, subject to the exceptions in its paragraphs (a) and (b).

109. Both these sub-sections make reference to approved development contribution plans. However, it is common ground that there is no development contributions plan in the Banyule Planning Scheme. Therefore paragraph (a) in each of sub-sections (5) and (6) is irrelevant for present purposes. It is only the other provisions that call for consideration.

110. I perceive a difficulty about the drafting of these sub-sections. They purport to separate, and deal separately with things that were lumped together in the old paragraph (h).

111. Paragraph (h) enabled a condition in relation to specified "works, services or facilities". It dealt with those concepts together. It did not matter if there was some overlapping between them as there was nothing expressed to apply to one to the exclusion of the others. Thus when sub-paragraph (h) (i) referred to such things being provided "on or to the land or other land" these alternatives of "on" or "to" and the second alternatives of "the land" or "other land" could all be read distributively in relation to "works, services or facilities". That all made sense. "On" or "to" could be applied to whichever of works or services or facilities as it might appropriately apply to. Works could be on the land or on other land.

112. Works "to the land" probably does not make sense. The only example that comes to mind is if the road system is regarded as a service and a vehicle crossing is constructed to give convenient vehicle access between a driveway on the land and the carriageway on the street to which it fronts. Although it strains common usage of the language a bit, such a crossing might be said to bring the "service" of the road "to" the land. However such a crossing is clearly "works" in any event, so the question did not arise under s. 62(2)(h). The phrase "to the land" would appropriately apply to services such as reticulated water, sewerage, power, telephone, cables and the like. I suppose even a garbage collection service is provided "to the land" rather than "on ... the land". Furthermore, under paragraph (h), it did not matter if there was an overlap between "facilities" and "works". Something might quite happily be both works and a facility and paragraph (h) would raise no problems. It authorised a condition in relation to something whether it was works or facilities or both. It was not even essential to work out whether something was a facility if it was, in any event, clearly works.

113. None of this comfort is available in relation to the new sub-sections because they separate "works" on the one hand from "services or facilities" on the other, and then mismatch the language in relation to them all. Furthermore the concept of providing works, etc. on "other land" has been lost altogether.

114. I now consider sub-section 62(5) in relation to the present case. Paragraph (a) has no application because there is no approved development contribution plan in the planning scheme. However, if paragraph (b) authorises a condition requiring the provision of the roundabout or the paying for the roundabout or part payment for the roundabout by the applicant, then the loss of paragraph (h) may not matter. With reliance on the introductory words of s. 62(2), and the common law tests of condition validity, the old (h) is not needed.

115. Section 62(5)(b) applies only to "works". Works is defined in s. 3(1) PE Act. It is an inclusive definition so that anything else that comes within the ordinary meaning of "works" is included. Works is defined there as follows:-

works includes any change to the natural or existing condition or topography of land including the removal, destruction of lopping of trees and the removal of vegetation or topsoil.

116. I have no doubt that the proposed roundabout would be "works", both in the ordinary English meaning of that term, and in accordance with this inclusive definition. It would be a change to the existing condition, and even to an extent the "topography", of land within the intersection. In any event, roads and such facilities have always been regarded as "works" within the planning legislation. Going right back to the Town and Country Planning Act 1944 and sub-section 12(1) thereof in relation to interim development orders, there is provision for an interim development order to prohibit the development of areas of land and the erection, construction or carrying out of any buildings, roads or other works on any land which may be included in such scheme (that is to say, the planning scheme under preparation). Furthermore, the proviso to that sub-section, which authorises the responsible authority to "permit, subject to such conditions as are specified in the permit, such development or such erection, construction or carrying out of buildings, roads or other works as it thinks proper". Although a distinction is sometimes made in modern planning legislation between buildings and works, it is clear enough that, from the beginning, roads were works. Road includes roundabouts and other intersection works.

117. In the course of the hearing reference was made to the term "works" in the glossary of terms used in the development contribution guidelines found in Part 9 on page 22 of the Guidelines for Development Contributions December 1995. The definition there repeats the words that appear in s. 3(1) of the Act, but then go on to add two further sentences that do not appear in the Act. They read:-

Generally works are changes, modifications and alterations made to land for the purpose of providing a service or facility. Typical works are drainage systems, mounds for noise attenuation, and roads.

Christian Brothers Vic Pty Ltd v Banyule CC [2001] VCAT 2120

At a glance

Court

Decision date

Source

Judgment (241 paragraphs)

Christian Brothers Vic Pty Ltd v Banyule CC [2001] VCAT 2120 (9 November 2001)

Parties

Legislation Cited (18)

Cases Cited (2)