Walnut Street, Whittlesea (Between MacMeikan Street & James Street)

1. The application for a declaration in Application P50996/2001 is refused.

2. In Application 2001/22607 the decision of the Responsible Authority is affirmed.

Mr D O'Brien of Counsel, instructed by J King and Associates, Solicitors, for the Applicants.

Mr David Batt of Counsel, instructed by Macquarie Lawyers for Whittlesea City Council.

1. There are two applications before the Tribunal in this matter.

2. Application 2001/22607 the "Review Application" is an application by E V Collier and Others, all owners of properties in Walnut Street, Whittlesea between MacMeikan Street and James Street, under Section 185 of the Local Government Act 1989 for a review of the declaration by the Whittlesea Shire Council ("Council") of a Road Improvement Special Charge for Walnut Street between MacMeikan Street and James Street, Whittlesea dated 20 February 2001 and issued on 26 February 2001.

3. The reasons for making the Review Application are:

"The proposed work will not provide a special benefit to the applicants; and

The basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable.

1. The applicant's property will not increase in value, if anything, it will decrease.

2. Owners or commercial properties in the area will receive a greater benefit than the applicant and they have not been included in the scheme. There are greater users of the road including bus companies which will obtain a greater benefit from the work than the applicant.

3. There will be an increase in traffic as a result if the proposed works which will constitute a disadvantage cancelling out any benefit for the work received by the applicant.

4. (a) The works and project proposed for the construction of the road and the drainage of any land are inconsistent with the policies and objectives contained in the Whittlesea Planning Scheme; or

(b) The works and project proposed for the construction of the road and the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly having regard to the locality and environment and to the probable use of the road or drainage of the land.

5. The applicant and adjoining land owners who represent 100% of the persons liable to pay the rate or charge do not wish the works to proceed.

4. Application P50996/2001 ("the Declaration Application") is an application by the same parties pursuant to Section 15AA of the Local Government Act 1989 for a declaration concerning the validity of the Council's decision to declare the scheme. The declarations sought are:

(a) The special charge was an error and not proper,

(b) The special charge is invalid and is void and of no effect, and

(c) The special charge does not apply to the applicants.

5. A Directions Hearing was held before Senior Member Young on 23 July 2001. Orders were made for the parties to file and serve a list of all relevant document, for the Council to provide particular responses to the grounds of the two applications and for the staggered exchange of witness statements.

6. At the commencement of the hearing the Tribunal was advised that one of the Applicants, Edna Violet Collier, had died since the proceedings were commenced and leave was given for Diedre Hawkins as executor of her estate to be substituted as an applicant.

7. Also the Tribunal was advised that Mr S Brady a former owner of land affected by the scheme had sold the land and the new owner, Mr Lesley Geoffrey Mayer, was substituted as an applicant.

8. It was agreed that the hearing would proceed by the presentation of evidence from the Council's witnesses to "set the scene", followed by witnesses from both parties and then by submissions from Counsel.

* Mr Geoffrey Mayer, owner of 1/22 MacMeikan Street

* Mrs Gladys Pollard, joint owner of 1/14 Walnut Street

* Mr Jack Pollard, joint owner of 1/14 Walnut Street

* Mrs Diedre Hawkins, executor of the estate of E V Collier and as such owner of 1/16 Walnut Street

* Mrs Amanda Cordell, joint owner of 1/22 MacMeikan Street

* Mr Henry Turnbull of Turnbull Fenner, Consulting Traffic Engineer, and

* Mr Ian Clayton, Qualified Valuer of Elite Valuation Services

* Mr Bryan Lancaster, former Manager Technical Services with the Council from October 1999 to February 2001,

* Mr Richard Young, Director Engineering of the Council.

* Ms Lisa Haugh, Engineering/Administrative Officer of the Council.

* Mr Linton Doyle, Qualified Valuer of Landmark White (Vic) Pty Ltd.

11. The Applicant filed particulars on 27 August and are as follows:

The applicants will not receive a special benefit form the road construction for the following reasons:

(a) improve vehicular access to and from the properties abutting the street;

(b) improve the drainage runoff collection and control;

(c) enhance the amenity of the land and local area;

(d) enhance safety for motorists, cyclists and pedestrians;

(f) otherwise benefit the lands or persons liable to pay the charge

to a degree that would support a conclusion that the persons liable to pay the charge receive a benefit over and above the benefit provided to persons not required to pay the charge.

2. Further, the proposed works will result in adverse effects (or disbenefits) to persons liable to pay the charge, particularly in terms of:

(a) diminished amenity by reason of increased traffic, noise, congestion, pollution and loss of street and neighbourhood character;

so as to counter any benefit that may be obtained over and above the benefit provided to persons not required to pay the charge form the carrying out of the works.

3. The applicant and adjoining land owners who represent 100% of the persons liable to pay the rate or charge do not wish the works to proceed.

4. All the Applicants own residential properties and their properties are very close to the commercial centre of Whittlesea. The owners and occupiers of other properties in the area, in particular commercial properties in Walnut Street and James Street and other streets close by, will receive a greater benefit than the applicants and they have not been included in the scheme.

5. The benefits that the persons not liable to pay the special charge will receive will be an improvement in the amenity of their properties and commercial benefits which will flow from customers and commercial traffic having easier access to their properties. This constitutes a greater overall benefit to their properties than to the properties of the applicants.

6. There are other users of the road who will obtain a greater benefit form the work than the applicants. This arises from the fact that the road is a major bus route, is used by other residents as a major through road and is subject to commercial use.

7. One of the parties that will receive a greater benefit is the Council by facilitating and developing the use of the commercial precinct and the proposed road construction as part of the overall infrastructure of such development. The Council is also owner of the car park that is in the next block of Walnut Street, which is the main car park for the shopping precinct.

8. The road will be increasingly used by other traffic due to population growth and further development of the area.

Ground 2 - Unreasonable basis of distribution

The Applicants are awaiting further instructions and/or advice from consultants concerning this ground of appeal and further particulars in relation to this ground will be provided together with the Applicants' witness statements if any or all of the Applicants intend to pursue this ground at the hearing.

Ground 3 - Inconsistency with planning scheme policies and objectives

This ground will not be pursued at the hearing as the Applicants, upon further consideration do not believe that the Whittlesea Planning Scheme contains any relevant policies or specific objectives relevant to the works to be undertaken or to the special charge itself.

Ground 4 - Works are unnecessary, unreasonable, excessive, unsuitable etc

1. The Whittlesea Planning Scheme does not contain any relevant policies or specific objectives relevant to the proposed works or the special charge scheme.

2. The Applicants, being all the persons required to pay the special charge, would prefer that the current standard and design of drainage and road construction be maintained rather than be subjected to the costs of the special charge scheme as proposed. Put simply, the costs of the special rate scheme to the six Applicants (ranging between $9,155 and $17,617 at an average cost of $14,166 per person) are grossly excessive relative to the level of benefit provided to the Applicants from carrying out of the works.

3. Furthermore, the level of construction is unnecessary, unreasonable and excessive in relation to the locality of the Applicants' properties in the semi-rural Township of Whittlesea and the minimal use by the Applicants in comparison to other users of the proposed works who are not included in the special charge scheme.

4. The unreasonableness and excessiveness is particularly relevant considering that the road and drainage systems were previously constructed by or at the cost of the abutting landowners to the satisfaction of the Council and have since been maintained at the Council's expense.

5. Further particulars of this ground will be provided together with the Applicants' witness statements if required.

This ground has been incorporated into the further particulars provided in relation to Ground 1 and is not sought to be relied upon as a separate ground."

12. Council's response effectively denied all these grounds.

13. By letter dated 19 October 2001 a reply was made to the Council's response seeking further particulars which were given on 25 October 2001.

14. The particulars of the Declaration Application were fully set out in the application document and the relevant parts are as follows:

3. The portion of Walnut Street west of Church Street and the subject of the 2001 Scheme, was not part of the original township reservation of Whittlesea and is not a "Government Road" as incorrectly stated in the minutes of the Council Meeting on 20 February 2001.

4. Rather, it appears to have been laid out as part of a private subdivision (Plan of Subdivision No 2376) and was wholly constructed by or at the cost of abutting landowners to the satisfaction of Council and consequently, this portion of Walnut Road is a "private street" (within the meaning of section 575(1) of the Local Government Act 1958).

6. Accordingly, the 2001 Scheme contravenes section 163(7) of the Local Government Act 1989 by seeking to recover further costs by way of a special charge in respect of the construction of a component of a street that has been previously constructed wholly or partly at the cost of abutting owners.

Miscarriage of discretion to declare 2001 Scheme

7. Further, the 2001 Scheme should be invalidated on the basis that the Council has erred or miscarried in exercising its discretion to declare the 2001 Scheme in a manner that was so manifestly unreasonably that no reasonable Council could have made it having regard to the following factors:

(a) it has been declared by the Council notwithstanding that the Council was aware or ought to have been aware that 100% of the pers9s liable to pay the special charge objected to its declaration.

(b) the Applicants will not receive a special benefit in comparison to other persons not liable to pay the special charge.

(c) the effective level of rates imposed by the special charge are manifestly disproportionate to the level of any special benefit (if any) that will result to persons liable to pay the charge.

(d) the possibility that the Applicants would also receive significant disbenefits from the carrying out of the works and the imposition of the special charge.

(e) the Applicants have purchased properties abutting an operational road and should not be required to pay for the entire construction of a new road.

(f) properties (including land owned by the Council comprising a 46 space car park on the north side of Walnut Street) that would receive a special benefit form the 2001 Scheme have not been included in the scheme.

(g) the main beneficiaries of the works will not be the adjoining property owners but rather the general users of the road (98% of whom are non-residents) and the Commercial zoned properties in Church Street and the Council owned car park.

(h) the proposal to implement a special charge scheme to fund the proposed works without consideration of an appropriate level of Council contribution to recognise that the road provides a level of accessibility beyond the likely needs of abutting properties which is contrary to several Council policies including the Unmade Roads Strategy (1996) (reviewed 2001), the Upgrading of Partially constructed Roads Strategy and other special rate schemes previously adopted by Council.

(i) the absence of any discernable support apart form the Council (and presumably the tacit approval of commercial interests not liable to pay the charge who will benefit form the proposed special charge) for the proposed special charge as evidenced by any submissions in favour of the special charge.

(j) having regard to the totality of matters and considerations stated in this application below.

Inadequate Consideration of benefits to Council land and other road users

7. The Council failed to properly consider its own position as an owner of land that has been acknowledged by Council to have significantly more traffic use than the abutting property owners, and accordingly will receive more benefit form the proposed road than will the property owners.

8. The inclusion of the land in a separate special charge scheme does not otherwise justify the failure to include this land in the 2001 Scheme or to otherwise make a contribution to the 2001 Scheme to reflect the special benefit derived by the Council owned car park from the carrying out of the proposed works.

9. To the extent that the 2001 Scheme was declared for the primary purpose of improving the street for through traffic or for access to the shops and other commercial properties on Church and Walnut Streets (including the Council owned car park) it constituted an improper use of the discretion conferred by Council pursuant to section 163 of the Local Government Act 1989.

10. In deciding not to contribute funds to the 2001 Scheme, the Council failed to consider the findings and recommendations of the previous Walnut Street - Church Street to Macmeikan Streets Proposed Special Charge Scheme (April 1998) (the "1998 Scheme") which recommended that Council contribute between 30-40% to the coverall costs of the works, the subject of the 2001 scheme. This proposal including a traffic survey (the "1998 Traffic Survey") and stated, [the Particulars then set out details].

11. In failing to have regard to the 1998 Scheme the Council also failed to consider whether or not it was appropriate that the proposed special charge scheme for Walnut Street be levied in one stage for the entire street and not two or three stages. If the scheme had been levied in one stage, the commercial properties in Walnut Street would have been required to contribute a greater proportion of the total cost, which would have reflected the benefit received by them , which is greater than that of the applicants.

12. Alternatively to paragraphs 10 and 11, if the Council did consider the 1998 Scheme and/or the 1998 Traffic Survey, no reasonable Council having considered these matters could have reasonably decided that the decision to declare the 2001 Scheme as proposed was valid, proper, equitable or reasonable under the Local Government Act 1989.

Failure to comply with section 223 of the Local Government Act 1989

13. In the contravention of Division 2 and section 223 of the Local Government Act 1989, the Council invalidly purported to delegate its duty under section 223 to hear submissions to a committee of two Councillors.

14. In making the decision to declare the 2001 Scheme the Council and/or its committee failed to consider the Applicants submissions received prior to the declaration of the rate, as required by section 223 of the Local Government Act 1989.

15. In purporting to consider the submissions lodged by the Applicants, the Council and/or its committee effectively and unlawfully authorised one or more of its officer(s) to carry out non-administrative functions, non of which were permitted by section 223 of the Local Government Act 1989 and which amounted to an unlawful consideration of the submissions by a delegated officer(s).

16. In preparing a report to the committee meeting on 5 February 2001, Council officer(s) went beyond the carrying out of merely the administrative task of summarising the submissions received and prepared a report that was inaccurate and misleading in that it:

- did not summarise the submissions and prepare responses with sufficient accuracy or impartiality;

- omitted to mention facts and matters that were neither immaterial nor insignificant; and

- was in fact a consideration of the substance of the submissions rather than a fair and accurate rendering of the substance of the submission.

17. In preparing the report to the Council meeting on 20 February 2001 that purported to consider the submissions received in relation to the Special Charge and the Committee's recommendations, the committee and/or the officer(s) who prepared the recommendations to Council prepared a report that was inaccurate and misleading in that it:

- did not summarise the submissions and prepare responses with sufficient accuracy or impartiality;

- omitted to mention facts and matters that were neither immaterial nor insignificant;

- was in fact a consideration of the substance of the submissions rather than a fair and accurate rendering of the substance of the submission; and

- did not adequately or accurately reflect the oral submissions presented to the committee or provide an accurate or impartial response to those submissions.

18. Further, in failing to provide the further materials requested by the Applicants prior to declaring the special charge, the Council did not afford the Applicants procedural fairness in purporting to consider the Applicants' submissions.

19. The comment on page 5 of the report to the Council meeting on 20 February 2001 that "It is not possible (or practical) to attempt to allocate costs to all users of a particular road" indicates a significant misunderstanding of the objectors' primary submissions. It also ignores the conclusions in the 1998 Scheme based on the 1998 Traffic Survey which, to ensure that any special charge is fair and reasonable, recommended that the Council contribute up to 30% of the cost of the charge in order to recognise the role of Walnut Street in carrying high levels of non-residential traffic accessing and servicing the main street and shopping centre of Whittlesea Township.

20. Further, the allocation of costs on the basis of usage has been specifically identified in the apportionment of the costs by the levying of Access Benefit Units. To limit the assessment of the imposition f the Access Benefit Units (50% of the special charge) to only owners who abut the proposed works is effectively seeking to limit the assessment and consideration of "special benefit" in relation to the access component of the 2001 Scheme to persons already liable to pay a component of the rate under Abuttal Frontage Units (50% of the special charge).

21. As a result, by levying the Access Benefit Unit component of the 2001 Special Charge without having regard to the other recognised users of the road (including the Council's own use and the 98% non-residential traffic) the Council have not validly imposed the charge upon persons who will receive a special benefit form the imposition charge and the carrying out of the works having regard to the stated criteria of access and usage within the meaning of 163(2) of the Local Government Act 1989.

22. By reason of the matters stated above, particularly the refusal of the Council to contribute to the scheme (or the failure of the Council to consider relevant matters pursuant to this consideration) the proposal is invalid as it does not comply with the objectives of section 7(h) Local Government Act 1989 "to raise funds for local purposes by the equitable imposition of rates and charges and by obtaining borrowing and grants.""

15. Council made a response in writing effectively denying the grounds.

16. Walnut Street is situated in the town of Whittlesea. It runs for 5 blocks from Wallan Road through to Whittlesea Park crossing MacMeikan, James, Church, Forest and Arnold Streets and terminating in Whittlesea Park.

17. The block between MacMeikan and James Streets subject to the Scheme is residential. Church Street is the town centre containing a strip shopping centre on each side of the intersection of Walnut Street and community and other uses beyond. In Walnut Street, east beyond Church Street are community and other uses and Whittlesea Park, beyond which are other residential areas.

18. Access to the town is from Wallan Road which runs north - south from Melbourne. The main access routes to the town centre are via

Ø Walnut Street from Wallan Road and MacMeikan Street.

19. The scheme was approved by the Council on 14 November 2000. The report to the Council described the road works proposed as follows:

"The following is an outline of the roadworks proposed to be implemented in Walnut Street.

* Reconstruct the pavement along the existing road alignment from MacMeikan Street to James Street.

* Provide kerb & channel along both sides of Walnut Street from MacMeikan Street to James Street.

* Provide a concrete footpath for the full length of both sides of Walnut Street, from MacMeikan Street to James Street.

* Construct concrete driveways for each developed property requiring vehicle access from the roadside to the property boundary. Existing constructed driveways are to be modified to match to the new works.

* Provide additional stormwater drainage where the existing drainage is inadequate.

* Grassing of the naturestrips and appropriate street trees planted as part of the works.

A concept plan showing the basic works is included as Attachment 1."

20. The report summarised the estimated costs as follows:

"Landowners' contribution to the cost of works in the scheme $85,000

21. The costs were distributed to each property owner on the basis of the following criteria:

The costs were to be subject to a tendering process and would vary on preparation of final costs at the conclusion of the road construction.

22. The Report stated the officer's comment as to the special benefits to be derived from the works are as follows:

"- Provide improved vehicular access to and from properties abutting the street to be constructed,

- provide for improved drainage runoff collection and control,

- enhance the amenity of the land and local area,

- enhance safety for motorists, cyclists and pedestrians, and

23. Based on the initial estimate cost of the scheme of $92,500 it was estimated that Council would contribute $7,500 for traffic calming measures, if needed, and the remainder of $85,000 would be recovered from owners.

* Portion attributed to Access Benefit unit $39,800

* Portion attributed to Access Benefit units $39,800

25. The charge was assessed on the following bases:

26. The apportionment between the owners was as follows:

27. Section 185 of the Local Government Act 1989 sets out the basis on which a person may apply to the Tribunal for a review of a decision of a Council imposing a special rate or special charge on that person.

"185. Application to Victorian Civil and Administrative Tribunal

(1) A person may apply to the Victorian Civil and Administrative Tribunal for review of a decision of a Council imposing a special rate or special charge on that person.

(a) within 30 days after the date of issue of a notice to the person of the special rate or special charge; and

(i) the works and projects or the period of maintenance for the purposes of which the special rate or special charge was imposed are not or will not provide a special benefit to that person; or

(ii) the basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable; or

(iii) if the planning scheme for the area contains any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are inconsistent with those policies or objectives; or

(iv) if the planning scheme for the area does not contain any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.

(a) vary the special rate or special charge declared by the Council in relation to its application to the applicant; or

(b) set aside the special rate or special charge if satisfied that the ground in sub-section (2)(b)(ii), (iii) or (iv) is established; or

(c) dismiss the application and confirm the special rate or special charge.

(4) If the Tribunal sets aside a special rate or special charge made in a particular year, the Council may declare and levy a new special rate or special charge for that year even if the year has ended."

29. Section 185(2)(b)(i) provides a ground on which an application to the Tribunal may be made for review of a special rate or charge is that:

"(1) The works and projects or the period of maintenance for the purposes of which the special rate or special charge was imposed are not or will not provide a special benefit to that person;"

30. The report to the Council meeting on 14 November 2000 on which the scheme was approved described the special benefits to be derived from the works as follows:

"- Provide improved vehicular access to and from properties abutting the street to be constructed,

- provide for improved drainage runoff collection and control,

- enhance the amenity of the land and local area,

- enhance safety for motorists, cyclists and pedestrians, and

31. The Applicants case in relation to special benefits is set out in paragraph 11 above that the works proposed will not provide those special benefits to a degree that would support a conclusion that the persons liable to pay the charge receive a benefit over and above the benefit provided to persons not required to pay the charge.

32. The interpretation of the principals applicable to paragraph (i) of Section 185(1)(b) relating to special benefit is conveniently set out in the passage from the decision of Member Terrill and myself in Grant v City of Frankston [2001] VCAT 1106 dated 8 May 2001 Application No. 2001/3502:

"(a) a special benefit is a benefit additional to, or greater than, that derived by other lands (City of Parramatta v Pestell [1972] HCA 59; [1972] (128 CLR 305 at 327 - High Court of Australia).

(b) The special benefit need not be direct (Raine Lodge Pty Ltd & Others v Wyndham City Council [1998] 22 AATR 23).

(c) The owner derives a special benefit even if his present use of the land does not provide it to him there and then, including making the land more valuable for sale, and the Tribunal adopts the remarks of Deputy President Macnamara and Senior Member Lyons in Walter and Others v Manningham City Council [1999] VCAT 987 (31 May 1999) where they said:

"It is a truism that the location of land is one of the most, if not the most, important factor in its value. The `three Ps' of real estate are said to be `Position Position Position'. There may, however, be many improvements made to a piece of land or to its locale which make it generally a more desirable place to live or operate from but which may not, for reasons relating to the quality, yield an increase in the value of the land commensurate to the expenditure or indeed any increase at all."

(d) See also McDonald v City of Hawthorn (1993) 10 AATR 201 in support of this proposition.

(e) It is (in)sufficient for an applicant for review to establish that the cost exceeds the "special benefit". An applicant for review will only succeed under Section 185(2)(b)(i) if he proves that the applicant receives no special benefit from the proposed work. It is insufficient to establish that it is less or that the cost of the charge is disproportionate to the special benefit derived. Likewise it is insufficient for an applicant for review to show that the special benefit derived formed no part of the reason for the Council's decision to execute the works. It is no less a special benefit merely because it was incidental to the project (see Walter's case above).

(f) There is some difference in opinion in Tribunal decisions as to the basis upon which the discretion to overturn the charge should be exercised. In Raine Lodge (the Tribunal) took the view that the charge should not be overturned unless it can be shown that the view adopted by the Council is not reasonably open to it. However in Walter's case the Tribunal held that in a merits review, the Tribunal should consider whether a particular applicant derived a special benefit not whether it was reasonably open to the Council to conclude that the resident received a special benefit.

(g) The view this Tribunal adopts is that this matter is a merits review and for the purpose of Section 185(2)(b)(i) the Tribunal must consider whether or not a special benefit is provided, and for the purposes of paragraph (ii) the Tribunal must consider whether the basis of distribution of the rate or charge amongst the persons who are liable to pay it is unreasonable.

(h) It is legitimate for the Tribunal to consider the subdivision potential of land when determining how to distribute the burden of the scheme (Barrow & Others v Colac/Otway Shire Council [1998] VCAT 776 - (15 January 1999).

(i) The test is not whether the optimum or fairest outcome has been achieved (see Raine Lodge at para 42). In that case the Tribunal emphasised that the second ground of review under Section 185(2)(b)(ii) is the unreasonableness of the basis of distribution amongst those persons who are liable to pay the rate of the charge. The ground is not whether the calculation or assessment of the charge of the rate or charge itself is unreasonable, although it must be remembered that under Section 85(2)(b)(iv) the question of the necessity or unreasonableness of the works and projects proposed may be bought in issue, but that ground is not alleged in this matter."

Special Benefit - Traffic and Engineering Issues

33. Photographic evidence shows that Walnut Street to the east of James Street is fully made, pursuant to a recent scheme referred to in the evidence, with drainage, kerbs and channelling and a fully constructed road surface.

34. The existing conditions of the street between James and MacMeikan Street has the following characteristics:

(a) The centre road pavement is a two lane street with a 4.45 wide carriageway with unsealed shoulders. The road pavement has some unevenness, is subject to crocodile cracking, has pot holes at the edges of the pavement and is in need of repair.

(c) There is open earth drainage between the footpath and the gravel edges.

(d) There are substantial street trees in the nature strip on the both sides.

(e) There are sandy gravel footpaths on both sides.

35. The Tribunal has considered the evidence of Mr Lancaster, Mr Young, Mr Turnbull, Mr Pitt, other Council Officer's and the personal evidence from the Applicants.

36. The Tribunal accepts the evidence of Mr Pitt in paragraphs 32, 33 and 34 of his statement that the works provide special benefits to the Applicants:

"My opinion that the works will provide the above benefits to the Properties takes account of the following considerations. The works will provide an improved road pavement. It will be wider than the present paved area and will also be constructed more soundly than the existing paved area, such as to retain its integrity better. The present pavement is deteriorating and has a limited life, especially as, once deterioration begins, it accelerates, as water, which is one of the main causes of deterioration, becomes able to penetrate the paving. The removal of the gravel shoulders will remove dust and dirt which is currently present in the Road and able to be thrown up by passing cars. The works will enhance pedestrian access to and from the Properties and along the Road, by the provision of paved footpaths of the nature standard in residential streets, in place of the sand paths currently present. The foregoing matters will improve the safety of the Road and the footpath. The concreted driveways will improve access to and from abutting properties. Drainage runoff and collection will be formalised and improved, including because roadside water will for the first time be drained into the underground stormwater system. The present open road-side drains, which are ineffective and can lead to ponding, especially given the flatness of the Road and its borders, will be removed. Drainage under crossovers will no longer be by the present culverts. In so far as any household drainpipes discharge into the present open drains, they will be connected to the stormwater drains. The works will enhance parking in the Road. Vehicles remain on sealed, even surfaces and the kerbs clearly define the position for parking. Drivers and passengers may more safely and comfortably alight to firm, even surfaces. The works will also lift the overall amenity of the Road, particularly with the landscaping which is proposed.

In short, in my opinion the Scheme is no more than a standard special charge scheme for a residential street, which will simply raise the standard of construction of the relevant section of Walnut Street to the standard of a normal residential street, with kerb and channel, pedestrian access and a road pavement that is not in poor condition. As such, the Scheme is in my opinion appropriate, and will provide a benefit to the abutting Properties, which exceeds any benefit to other properties.

It may be that some intangible and general benefit flows throughout the township from the improvement of street construction in the township. The same result can be said to flow from any works done under any special charge scheme. However, in my opinion it is not the case that properties other than the Properties abutting the Road will derive any particular benefit form the Scheme. The physical works to be undertaken under the Scheme affect, and in my view benefit, the Properties which abut them."

37. The Tribunal takes the evidence of the Applicant's personally as evidence that they do not want the works to be conducted if they have to pay for them, and expressing concerns of increased traffic if the works were done. The evidence satisfies me in that there will be special benefits particularly arising from the full construction of the footpaths, landscaping, the drainage works, kerb construction for paving of the road surface, elimination of the gravel shoulders and elimination of the potholes, crocodile cracking and uneven surface.

38. I accept the Applicants' evidence that as they will be obliged to pay for the works they prefer the situation to remain as it is, but Section 185(1) obliges that a Tribunal to determine whether any special benefit is derived from the works rather than to make an investigation as to the extent those works are desired by the Applicants.

39. I also consider that the question of whether the Council should contribute to the works is not a matter for consideration by the Tribunal in the context of considering the question of special benefit. The issue of establishing a proportional relationship between the extent of the special benefit derived by the owners on the one hand and the cost of works to be borne by them on the other hand is not an issue which can be considered by the Tribunal and I refer to the references to applicable Principles above and to the comments I quote below from Deputy President Macnamara and Senior Member Lyons in Walters v Manningham City Council dated 7 May 1999 2 VPR 276 at page 293. I note that Mr Turnbull's evidence is mainly concerned with this issue, namely, a consideration of the extent of the proportion of the cost of the works that will be reasonable for the Applicants to bear, and I note that he accepts that it will be reasonable for the Applicants to bear some portions of the cost of the works particularly in relation to footpaths and drainage, which itself carries the conclusion that Mr Turnbull accepts that some special benefit will be derived by the Applicants from the works. The question of necessity is not a matter to be dealt with under the heading of paragraph (i) relating to special benefit. That issue is dealt with below under the hearing of paragraph (iv) of Section 18592)(b).

40. The Tribunal accepts the traffic survey of 3 April 1998 referred to in the proposed 1998 special charge, that 98% of the traffic using Walnut Street is non-residential traffic, and that the commercial conduct of the traffic using the street is 23%. I understand that in this sense "non-residential" means traffic derived from the residents of that portion of the street. However I do not consider that this traffic survey supports the conclusion that the owners abutting this section of the street receive no or very little benefit from the proposed works. The street is shared by them and all the other owners abutting the whole street. The "non-residential" traffic referred to in the survey will include other residents who may live in other parts of the street and other persons who may use the street.

41. The Tribunal considers that such a usage would not be unusual in a country or outer suburban town with a grid street pattern having the town centre located within that pattern. It is likely that many of the streets in the town will be used by a great variety of people travelling for various purposes throughout the town area.

42. The Applicants claim that there will be increased traffic as a result of the widening of the road. However it is noted from the evidence including Mr Pitt's statement (with which Mr Turnbull agrees) in paragraphs 21 and 22:

'21. The works under the Scheme, and in particular the method and width of the construction of the road paving, result in the road being constructed to the normal standard, and in the normal manner, for a residential road, and not beyond.

22. As to the width of 7.6 metres, this width is normally adopted as the minimum width for a residential road. It yields 7.3 metres excluding the kerbs. That allows 2.1 metres on each side for vehicles to be parked, and 3.1 metres for a carriageway for moving vehicles. Where a vehicle is parked on each side, the remaining carriageway is generally insufficient [I consider this should read sufficient] for two moving vehicles to pass each other, one in each direction. The 85th percentile width of a car is 1.95 metres."

43. I also accept the evidence and submissions of the Council that while Walnut Street may provide access to the town centre it is not the principal or main access route but one of a number and that there is a heavier traffic use of Laurel Street for access. I do not consider that the level of traffic on this section of Walnut Street is unreasonable for a residential street, as Mr Batt put it in his submission,

"1500 vehicle movements per 24 hour period equates to only 31 movements per hour each way or one every approximately 2 minutes. 12,000 movements per 12 hours period still equate to one car per minute each day. Busses use the street only approximately once per hour, or on a 12 hour time frame, twice per hour during day light hours. Mr Pitt's evidence was that there was nothing unusual about the volume or makeup of the traffic for a residential street. Mr Turnbull, whilst he would not accept that view in relation to composition, would not appear to disagree that 13,000 to 15,000 movements per day is not unusual or excessive for a residential street. He also accepted that some residential streets carry more cars than that, and that busses often use residential streets."

44. I also accept the submission of Mr Batt that the Church Street town centre is classified as a neighbourhood centre in Clause 21.02-7 of the Whittlesea Planning Scheme and described as having an existing ground level floor area of 4,150 m2, compared with regional/sub-regional activity centres with total or existing floor areas in the vicinity of 50,000 m2 and large neighbourhood centres which have floor areas in the vicinity of 10 to 14,000 m2. The Planning Scheme also states as follows:

"The City of Whittlesea currently has a high level of expenditure in retail spending. In supply terms this suggests that there is an under supply of gross retail floor space or that there are certain classes of retail activity which are under recent.

Retail demand analysis reveals that the City is currently under supplied by a substantial amount of retail floor space. According to the retail centre, it is further evidence that the City is relatively well served with local and neighbourhood centres but is relatively under supplied by accessible higher order centres."

45. Accordingly, there is no evidence before me that this neighbourhood shopping centre is of a nature which will attract a significant increase of traffic along the street. It may be that when the street is constructed it may be more convenient but for passing traffic I consider that the level of convenience will be constrained by the width of the carriageway to one lane each way.

46. Accordingly, I find that the feared substantial increase in traffic is not proven and I do not consider that any increase which might eventuate is of such an order as would characterise a substantial disbenefit.

47. In the decision of the High Court of Australia in City of Parramatta v Pestell [1972] HCA 59; [1972] 128 CLR 305, Gibbs J stated at page 327 that:

"A work is a special benefit to a portion of a local authority area if the lands comprised in that portion derive from the work a benefit which is not shared by other lands or a benefit which is additional to or greater than that which is derived by other land."

48. The Applicant's in this case claim in paragraph 9.7 of the particulars of the application include a ground that the works proposed will not [provide the special benefits claimed by the Council]:

"to a degree that would support a conclusion that the persons liable to pay the charge receive a benefit over and above the benefit provided to persons not required to pay the charge."

49. These words are not contained in Section 185.

50. The Tribunal accepts that persons other than the Applicants will receive benefits from the works, as the Applicants themselves will receive the benefits of other roadworks in the town area and elsewhere. However the test in Pestell does not require a consideration of whether the benefit received by the Applicant is greater than or "over and above" the benefit to other persons but merely whether the Applicants receive a benefit "which is additional to or greater than" which is derived by other land.

51. Apart from the references to the traffic survey and the suggestion that the improved road will facilitate access to the Council car park, there is no evidence or submission form the applicants attempting a quantification of the elements to this comparison

52. My finding in this case is that the Applicants have not established that persons not required to pay the charge will receive benefits additional to or greater than the benefit derived by the land owned by the Applicants.

53. The Tribunal does not accept the claim of the Applicants that the only persons who will receive the benefit from the scheme are other uses of the road and the Council which will be able to remove an obligation to maintain the road that exists from the constructed form and its status as a public highway and pass that obligation on to adjoining residents.

54. Council's case was that the special benefit the Applicants would receive from the construction of the works included an increase in property values.

55. Valuation evidence was called by both parties. The Council called Mr Lynton Doyle of Landmark White and the Applicants called Mr Ross Clayton of Elite Valuation Services, both qualified valuers.

56. Mr Doyle's evidence was that he was of the opinion that the proposed works would lead to an increase in the values of the subject properties. He stated:

"Definitive sales evidence is not available to demonstrate with precision the direct enhancement in value due to the undertaking of the street reconstruction. However, it is my experience that a residential property which is situated within an area that has full residential street construction will have an enhanced value compared to a similar property situated in an area without full residential street construction. In particular, for example, enhancement to value flows from matters such as the improved drainage position, the benefits perceived by prospective purchasers of properly constructed driveways and road pavement, and the generally enhanced amenity where a street has been properly constructed and landscaped."

57. He added a contradictory note that looked at differently in his experience, a prospective purchaser would pay less for a property in an area without full residential street construction on the basis that the property presents in an inferior position and is inadequately serviced. He also commented that it was not easy to quantify with any precision the increase in value to a particular property as a consequence in carrying out the works, but his opinion was that the properties would be likely to experience an increase in 3 to 5%.

58. He referred to the sale of Unit 2 at 12A Walnut Street as having sold for $156,000 and he considered that it would have sold for between $160,000 and $163,000 had the street been fully constructed.

59. Mr Clayton, called by the Applicants in his report set out an analysis of recent sales in the inner Whittlesea township including properties with improvements of varying age and size that have either fully constructed roads, footpath and kerb and channelling ranging to properties similar to the subject that have only bitumen sealed streets.

"These sales, when analysed show varying rates per square metre for the underlying land value depending upon their location to the township and size of the land component. (The full details of the comparable sale properties are appended).

I consider that any increase in the underlying land value of the properties on Walnut Street between Macmeikan and James Streets would not be significant and is difficult to quantify with any precision. Such an increase would primarily be a result of the upgrading of the underground storm-water drainage including the connection of the abutting household drains.

The sales evidence shows that the analysed underlying land value for the subject area generally varies from $105m2 to 246m2. These sales rates show no correlation between the nature and type of road and drainage improvements abutting the property and the achievable rate per square metre. Rather, as would be expected, these rates are influenced by the location of the land in relation to services and facilities, the size of the allotment, topography and shape of the land."

"The sales analysis appended reveals that there is a negligible difference [indifferently between differently serviced properties] in underlying land values after allowance for size and location differences."

62. He said the sale of 12A Walnut Street suggested that the vendor reduced the sale price because of the potential for the owner's contribution to the road upgrade and there was nothing to suggest that this sale involved an increase in market value as a result of the proposed introduction of the scheme.

63. He perceived no significant increase in the value of underlying land value and similarly that any increases will be enjoyed by surrounding properties in the greater locality.

64. He was of the opinion that the benefit derived from the upgrade may be off set by future increases in vehicle noise and traffic movement.

65. After considering this evidence, with the cross-examination of the witnesses and the submissions of Council, my conclusion is that the evidence does not demonstrate that there will be a special benefit arising to the properties subject to the special charge by way of increased valuation properties as a result of the construction of the works.

66. The recent sale of Unit 2/2A Walnut Street may demonstrate a recent increase in property values but the documentation for the sale does demonstrate there was an adjustment against the vendor in anticipation of the liability for the special charge.

67. I agree with the Applicants' submission that in order to demonstrate an increase in value of this nature it would have been desirable to have some clear "before and after" sales evidence which was lacking.

68. I agree with the Applicants that there was some difficulties with Mr Doyle's evidence in his use of averaging.

69. Valuation is notoriously imprecise. I accept that both the valuers gave their evidence in good faith but their evidence conflicts. Both are familiar with the area. However, I find there is nothing in the underlying sales evidence produced by either valuer that supports the Council's case that the construction of the works will lead to an increase in property values and to do so will be speculation despite Mr Doyle's considered opinion.

70. Accordingly I find that the Council has not established there is a special benefit by way of increased property values as a result of the construction of the works.

72. I have found that the Applicants have failed to make out the ground in paragraph (i) and that they will receive some special benefit from the construction of the works

73. On the question of the narrowness of the grounds available under Section 185, it is useful to refer to the comments of Deputy President Macnamara and Senior Member Lyons in Walters v Manningham City Council dated 7 May 1999 Application No 1999/04171 reported at 2 VPR 276 [which upheld a special charge for the widening of Mitcham Road which carries heavy traffic] at page 293 of the decision:

"We cannot part from this matter without some further comment. These applicants have failed in their review application principally because we have found that there exists some special benefit for them. We are far from saying that if we were at large to exercise the same discretions as the Council did that we would nevertheless subject these land owners to the special charge. We have no jurisdiction to make a determination whether the special benefit which is demonstrated to accrue to these land owners is proportionate to the special charge which is imposed upon them. It is troubling to reflect that these land owners being, so far as we can make out, people of modest means, are being subjected to charges which, whilst not large enough to lead them to invest in professional representation, are a substantial impost upon them - particularly the aged upon whose minds these sorts of matters tend to prey to an inordinate degree. The special benefit which we have found is on balance minor and wholly incidental. The features exhibited by the design of this proposed widened road are dictated solely by Mitcham Road's role as a main road. This project is being carried out now, not because of the entreaties of the land owners, but because of the initiative of VicRoads as the authority responsible for main roads in the metropolitan area. The existence of the review power under Section 185 of the Local Government Act 1989 has served, in the case of these applicants (and we suspect many others) as a trap and a delusion. It is clear from the submissions that they made that they were under the misapprehension that this Tribunal was at liberty to reopen the entire issue of the special charge. As our reasons show, the grounds upon which we could interfere were exceedingly narrow. We would advise any ratepayers contemplating mounting proceedings such as these to consider jointly obtaining legal advice to satisfy themselves as to whether the costs involved in filing fees and the time and emotional stress involved in attendance at the review hearing are justified by the prospects of success."

Section 185(2)(b)(ii) - Basis of Distribution

74. The Applicant did not pursue the grounds they pleaded under this paragraph as all the abutting owners were Applicants to the application.

75. The Council argued the distribution of the burden of the scheme amongst the property owners was reasonable.

76. As the basis of distribution is one commonly adopted by Councils to share the burden of special charges for road and drainage construction, and in the absence of argument from the Applicants, I do not consider there is any ground under this paragraph affecting the special charge.

Relevant Planning Policies - Section 185(2)(b)(iii) or (iv)

77. Section 185(2)(b)(iii) creates the ground for review of a special charge:

"If the planning scheme for the area contains any relevant policies or specific objectives, the works and projects proposed for the construction of the road or for the drainage of any land are inconsistent with those policies or objectives; or"

78. Further the ground in paragraph 185(2)(b)(iv) is only available:

"if the planning scheme for the area does not contain any relevant policies or specific objectives."

79. Thus a finding under Section 185(2)(b)(iii) that there are relevant policies or specific objectives contained in the planning scheme would exclude any ground of review under paragraph (iv).

80. The Council contended that the scheme did contain relevant policies and specific objectives and that there was no inconsistency between the works and those policies and objectives.

81. Mr Batt's submissions referred to the relevant policies and objectives on which Council relies as follows:

"(a) the statement in the Municipal Strategic Statement (MSS") that the provision of physical and social infrastructure in a cost effective and timely manner is of paramount importance" (para 21.02-5, page 12 of 21);

(b) the statement in the MSS that the City of Whittlesea "must also progressively plan for and enhance opportunities to develop beneficial transportation and land use planning objectives" (para 21.02-6, page 16 of 21);

(c) the statement in the MSS that "[i]f the City is to sustain long-term employment growth within a diversity of sectors it must progressively upgrade the appearance of employment centres" (para 21.02-8, page 17 of 21);

(d) the statement in the MSS that "[w]ith significant new urban development planned, the opportunity exists to differentiate new urban areas from each other and to provide individual character and identity which will assist in instilling a much needed sense of place and community... The City of Whittlesea contains many diverse and rich urban and environmental features which must be identified, preserved and enhanced in order to retain the intrinsic qualities and character of the municipality in the face of rapid urban development" (para 21.02-9, page 18 to 21);

(e) the statement in the MSS that "[t]he provision of essential basic items of physical infrastructure, that is, sewer, water and drainage is fundamental to the future of any growth area" (para 21.02-11, page 19 of 21);

(f) the statement in the MSS referring to Council taking the following actions, namely "ensure ease of movement within, as well as to and from, the municipality" and "protect and enhance the Municipality's amenity and assets" (para 21.04-1, page 1 of 3);

(g) the statement in the MSS that a key land-use planning objective of the City of Whittlesea is to "progressively upgrade the image and appearance of the City of Whittlesea focusing on retention of local environmental features, landscape qualities and urban and landscape design improvements" (para 21.04-2, page 3 of 3, and para 21.06-9, page 32 of 43);

(h) the general thrust apparent throughout the MSS to improve the standard and appearance of improvements in the City, including infrastructure such as roads and drainage; and

82. Mr Batt also relied upon the statement of Deputy President Macnamara in Slatter v Frankston City Council [2000VCAT] 2349 at paragraph 50 where he said, having regard to the matters contained in the new format planning schemes, which:

"...generally contain a superabundance of policies and objectives ranging from the State Planning Policy Framework to the Local Planning Policy Framework including the Municipal Strategic Statement..."

"unlikely that an area subject to a new format scheme would ever be lacking relevant policies or objectives, within the meaning of Section 185(2)(b)(iii)."

83. Mr O'Brien pointed out that in Slatter the relevant policy in the Municipal Strategic Statement contained a specific provision that the costs of construction of access lanes should be apportioned between residents with direct access and/or frontage and develop contributions.

84. He submitted that the Tribunal left open the question whether the general policy statements in the State Planning Policy Framework would constitute a relevant policies and specific objectives and he submitted that the relevant policies and specific objectives must be relevant and specific to the test in paragraph 185(2)(b)(iv) namely whether the works and projects proposed for the construction of the road or the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly having regard to the locality or environment as to the probable use of the road or drainage of the land.

85. He contrasted this with the general requirement in Section 185AB which was a wider reference.

86. Mr O'Brien submitted that none of the policies identified by Mr Batt were specifically relevant in the sense he argued, and that for such a policy or objective to be relevant or specific it would need to address issues such as funding. In this context he submitted the only relevant policy was referred to by the Council was the Unmade Roads Policy (1996) which is not incorporated into or contained in the Planning Scheme.

87. My conclusion on this issue is that the policies referred to by the Council are too general to fall within the category of relevant policies and specific objectives in the context of paragraph 185(2)(b)(iii) and (iv), and that the policies and objectives must relate to the works and projects subject to the special charge.

88. I do not accept that the test is so confined that it must relate to the grounds in paragraph (iv). This would exclude the relevance of the policy referred to in Slatter which referred to the apportionment of costs between developers and residents.

89. The conclusion I draw from Slatter and the provisions is that it is sufficient if the scheme contains objectives or policies specific or relevant to works and projects for road construction or land drainage and that those specific policies and relevant objectives must be so expressed so that it is possible to determine whether the proposed works are consistent or inconsistent with the policies.

90. In the Tribunal's view the policies relied on by the Council are far too general and not relevant for the purpose of paragraphs 185(2)(b)(iii) and (iv), that the works are not inconsistent with any policies alleged and that it is open to the Applicants to raise the grounds in paragraph (iv).

Proposed works are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly - Paragraph 185(2)(b)(iv)

91. This paragraph provides a ground of review of a special charge as follows:

"(iv) if the planning scheme for the area does not contain any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land."

92. I have found that there are no relevant policies or specific objectives.

93. There was no dispute that the proposed road works were appropriate in specifications and cost for road works in an ordinary residential area and that the specifications or the nature of the works did not contain any element that was excessive or not appropriate for a residential street.

94. Whilst the Applicant set out a number of grounds in relation to his paragraph, the main argument pursued in Mr O'Brien's submissions was his reliance on the Tribunal decision in Ginnivan v East Gippsland Shire Council [2001] VCAT 1663 as a recent decision where the Tribunal quashed a special rate under this ground in circumstances similar to the present one. That case concerned a special scheme for the construction of a 5.5 metre wide sealed pavement with associated road realignment works.

95. The special charge was constructed in a way that all the costs would be recovered from affected property owners. The Council contributed part of the scheme itself as the amount apportioned against a municipal reserve (cemetery) and a further amount was obtained from earlier contributions to the Council on the development of some of the properties abutting the roadway.

96. The Applicants pleaded paragraph 185(2)(b)(iv).

97. In paragraph 25 of her decision the member said:

"It is my assessment that the major issue in this application for review is whether the works proposed in Mirrabooka Road fairly respond to the needs of abutting residential properties, or are, as alleged by the objectors, a response to through traffic and the road's role as a secondary road in the township's road network. These arguments relate, in my view, to the grounds in Section 185(iv) that "the works and projects proposed for the construction of ... [the] road... are excessive... unsuitable or costly, having regard to the locality or environment and the probable use of the road...".

98. She found that the road was a ring road or main public access road in and out of the township providing access to Genoa Road and the main highway and considered it was not reasonable that the liability for the upgrade of the road should fall solely on abutting property owners.

99. She found that the assuming full development of the land abutting the property vehicle movements from the residents would be less than 50% of the vehicle movements actually recorded for the road and she also found that there would be some increase in through during the summer and holiday season.

100. There was no suggestion that the road was otherwise that of a standard required for an ordinary residential road.

101. At paragraph 30 of her decision she commented on the submission to her by the Council that the works were reasonable, suitable and not excessive and the member said as follows:

"While at the hearing Mr Strong argued that the Council believed with respect to Section 185(2)(b)(iv) that the works were reasonable, suitable and not excessive in that the proposal is only to provide a bitumous seal on an existing gravel road, with some realignment works, I believe that the usage of the road by other persons needs to be taken into account, in assessing the unreasonableness, sustainability and costliness of the works."

102. Further in paragraphs 34 & 35 the member made findings as to the nature of the road and stated her conclusion:

"In my view Mirrabooka Road does not neatly equate with the concept of a local street, nor even with the concept of an access street as referred to in the Victorian Code for Residential Development of April 1992. Table E9.1 of the Code describes various types of road appropriate to service residential localities, and for each, describes traffic volumes, target speeds, design carriageway widths etc. While an access street carrying up to 1,000 vehicles per day would appear to be an appropriate classification to apply here, and it indicates a carriageway width of 5 to 5.5m, those streets have a design speed of 30kmh, rather than the 80kmh which applies in Mirrabooka Road. This speed is clearly well above that which is appropriate on a local street. It is also my view that the layout of the road network in the township of Mallacoota clearly supports the objectors' view about the "ring road" function for Mirrabooka Road in conjunction with other streets leading down to Lakeside Drive. The fact that Mirrabooka Road is also designated as a Road Zone 2 under the Planning Scheme confirms that it is a higher order road in the road hierarchy of the township.

In conclusion, I find that while the applicants' properties would get a special benefit from these road works, the works are nevertheless not suitable/excessive to their needs, and costly, and it is unreasonable in the context for the probable use of the road by through traffic, to place the major liability for the works on the abutting landowners. In light of my finding that the works are excessive and unreasonably charged to those within the scheme, I believe the only appropriate course is to set aside the special charge scheme."

103. Mr O'Brien for the Applicants made the following comparisons on the facts:

"In this respect it is submitted that the following facts identified in that decision are common (or bettered) in the case of Walnut Street:

* The works related to street improvement works in respect of a road that the Tribunal held to effectively function as a through street or key access route into the town, but not necessarily the main access through to the town.

* The residents claimed that works to upgrade such a street was a council policy and it was outrageous to "try to pass on the cost to owners" and that it should not be the responsibility of a "few abutting owners" when the road serves as a main access road for everyone (para 18).

* That in determining the meaning of the phrase "having regard to the probable usage of the road," the Tribunal placed considerable weight on the proportion of abutting vs through traffic use of the street Para 26. (This is a fact identified by Mr Turnbull and in the 1997 Survey but conveniently and persistently ignored by the Council). Note that the reference to absolute traffic movements in that case were comparatively low (350 vm per 24 hour period). What was significant was relative use. Para 26.

* Regard to movements of buses and other heavy vehicles (again significantly less than in Walnut Street) para 26.

* The relative proportion of non-residential access in the Ginnivan case was 50% compared to 2% in Walnut Street. Para28.

* The Tribunal rejected an argument similar to the one advanced by Mr Pitt that the level of works proposed was similar to the Council's guidelines for construction of a standard residential street (para 30-34) and preferred an analysis similar to Mr Turnbull's that "the usage of the road by other persons needs to be taken into account in assessing the reasonableness, sustainability and costliness of the works." (para 30) - (Note in that case that the Council had adopted guidelines as to contribution strategies)

* The Tribunal rejected an argument that roads up to 7.5 metre will only be catering for non-through traffic.

* The Tribunal rejected an argument that roads up to 7.5 metres will only be catering for non-through traffic.

* The Tribunal rejected an argument that Mirbooka Road "neatly equated to the concept of an access street as referred to in the VicCode Guidelines and preferred to undertake an assessment of the Roads usage in determining this issue (in a similar manner to Mr Turnbull in the present case and contrary to the approach adopted by Mr Pitt and the Council).

It is submitted that the only basis for attempting to distinguish the Ginnivan decision on the facts are on the following differences:

* That the Tribunal appeared to find that Mirrabooka Road was a main or Ring Road to the township.

* That the speed in the Road (80km) was well above that for a residential street.

* That Mirrabooka Road was a Road Zone 2 under the Planning Scheme."

104. He submitted that the Tribunal assessed the issue of reasonableness under paragraph (iv) by reference to the relevant usage of the road and its status as a main ring road or a main access road. Further Mr O'Brien said that, more importantly, none of the other above factors relate to the works to be undertaken but they are indicators of the status of the road irrespective of the scope of the scheme proposed.

105. He submitted that the decision is a highly persuasive authority, it should not be departed from unless it is demonstrably unsound in its reasoning.

106. The Council's submissions in relation to Ginnivan firstly noted that the member was correct to find special benefit and that she had no hesitation in doing so. Mr Batt noted that the member accepted that the potential for subdivision was relevant in calculating access benefit and that it did not matter if presently no access was used. He also submitted it was correct to find that the fact the road was a Government road was irrelevant to the position and did not support the application for review.

107. However he submitted that Ginnivan should be distinguished on the following grounds:

"(a) The road in that case was of a different nature. It was accepted as a "ring road" (para 29), was accepted as a "main public access road" in and out of the town from the rural area where it started, had a high speed limit (80km/h), was much longer (1320 metres), was part of a signposted scenic route and was in a rural area.

Walnut street is a short local road in a residential area, with a 50km/h speed limit. It does not act as a secondary road providing a main access way from the country into Whittlesea. In Ginnivan, the Member had regard to Vic Code. Doing so highlights the differences in the present case.

(b) Here, but not in Ginnivan, the works involved are much more than road paving.

(c) Here, it is not a matter of removing rural character which was the reason for buying, as here the street is not rural, but residential. Rather, it is a matter of rendering in proper form a residential street which is presently only partly in residential form."

108. He further submitted that the decision is wrong for the following reasons:

"(a) it was not unreasonable (or otherwise within ground (iv) of s.185(2)(b)), to require the abutting landowners to pay for the works.

The works were not to do any more than standard for construction of a local road. The residents were not being required to pay any amount arising because of the usage of the road by other vehicles or to render the road appropriate for more than their needs.

Had the traffic count been a tenth of what it was, ie. nothing but the residents' cars, the rate would have been justified. It is not rendered unjustifiable simply because there is extensive use by non-residents.

It cannot be a requirement of s.185(2)(b0(iv) that the road be used only or virtually only, by residential cars. It cannot be correct to assess the position by reference to the proportion of vehicle movements which are residential. Nothing in section 185(2)(b)(iv) should be accepted as requiring that.

And if any like test were to be accepted, it could not be applied with any certainty, it would affect or potentially affect a vast proportion of justifiable schemes, and it would be entirely unclear where the lines were to be drawn.

(b) In any event, there were insufficient traffic movements to warrant the conclusions which were reached. It is submitted, especially in light of the evidence in the present case, that it was not correct to consider "320" vehicle movements a high number.

(c) The Member took as the relevant question (para 25), whether the works proposed responded to the needs of the landowners or were "a response to through traffic and the road's role as a secondary road in the township's road network". This is not the question. A fundamental part of the Tribunal's error is reflected in the reference, in para 35 of the decision, to the view that the upgrade was not suited to "their needs", ie the Applicants, as being inherent in the reasoning for reviewing the rate.

(d) In any event, both in Ginnivan and in our case the question would be answered in favour of the Council, as the works, in being only to residential standard, do "respond" only to the needs of abutting landowners."

109. Mr conclusion on the submissions of the parties is that Ginnivan was wrongly decided and should not be applied.

110. The wording of paragraph (iv) requires that the issues of "unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, must be assessed in relation to "the works and projects proposed for the construction of a road or for the drainage of any land."

111. The section also requires the Tribunal "to have regard to the locality or environment and to the probable use of the road or drainage of the land".

112. What the Member did was to relate the works to the needs of the residents as if the street were purely a residential street and then draw the conclusion that because the street and the proposed works would serve through traffic and have a higher level of activity than a residential street, it is therefore unreasonable to charge the abutting owners for those works.

113. With the greatest of respect to the member in Ginnivan, this is not what the wording of the paragraph requires.

114. The paragraph requires the Tribunal to ask do the "works" meet the test in the section. In Ginnivan and in this case there is no indication that the works are anything more than what would be built in the normal residential street by reference to all the specifications including kerbing, the width and depth of the pavement and the other specifications of the road. This was admitted by Mr Turnbull.

115. In this case there appears to be no provision made in the specifications for the road for the fact that the road bears additional through traffic including the semi trailers serving the supermarket or the normal truck traffic one finds in a small town.

116. In Ginnivan and in this case there is nothing in the works that is unnecessary, unreasonable, excessive, insufficient, unsuitable or costly.

117. I also consider that, with respect, the member was incorrect in using the probable use of the road as a ring road, through road or access road as a ground for finding that the works were unnecessary or reasonable. In my view the section requires the Tribunal to have regard to the actual probable use of the road in relation to the works in assessing the necessity etc of the works. That the road in fact has a use greater or heavier than a residential street, as is alleged in this case and as was the case in Ginnivan, is not alone a ground for rejecting the special charge, unless that use has some connection with the works and drainage. In this case the road has been constructed as an ordinary residential street.

118. Whilst it is not necessary to decide it in this case, I comment that it is uncertain from the words of the paragraph whether the Council is entitled to take into account the probable use of the road and the drainage of the land in deciding if the works are reasonable etc., that is build the road according to specifications of a higher order than those of an ordinary residential street to meet the requirements of that use, or whether the paragraph is to be interpreted to the contrary that works required by the probable use to be of a specification higher than necessary for an ordinary residential street are to be regarded as unnecessary and unreasonable to that extent.

119. Whilst not mentioned to me, I note that Senior Member Young in Pedler v Brimbank City Council [2001] VCAT 2275 dated 18 December 2001 in paragraph 9.7 respectfully disagreed with the decision of the Tribunal in Ginnivan to the extent that this decision assessed the necessity and reasonableness of the works from the view point of the contributors to the special charge scheme.

120. I consider my conclusion is consistent with other decisions of the Tribunal and in particular I refer to the decision of Deputy President Macnamara and Senior Member Lyons in Walters v Manningham City Council dated 7 May 1999 Application No 1999/04171 reported at 2 VPR 276 which upheld a special charge for the widening of Mitcham Road which carries heavy traffic.

121. Section 185AA(i) of the Act provides as follows:

"A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning the validity of a decision referred to in Section 185(1)."

122. The application is brought in relation to the decision of the Council to impose the special charge for the scheme.

123. The Applicant split his submission in parts reflecting a classification between a challenge to the power or jurisdiction of the Council on the one hand and a challenge to the exercise of the power on the other, namely;

(a) validity of the decision to impose the scheme having regard to the obligation of the Council to raise funds and charges by the equitable imposition of rates and charges and to provide equity in rating generally as a condition precedent to the exercise of the power.

(b) validity of the decision under the principles of judicial review under the following grounds:

(i) taking into account irrelevant considerations or failing to take into account relevant considerations.

(ii) failing to give proper and meaningful consideration to the submissions under Section 223 of the Act.

(c) unlawful delegation of a non-administrative decision making power in relation to the consideration of submissions under Section 223,

124. Mr O'Brien did not challenge that the rate itself (as a rate) is inequitable or unreasonable by itself but rather focussed on the propriety of the decision of the Council to impose the rate.

125. He submitted that the relevant tests applicable to the declaration application were set out in Pestell at page 327 as follows:

"It may of course prove disputable whether a work benefits a particular parcel of land and, if so, whether it benefits that parcel more than another. For obvious reasons therefore, the legislature has left it to the council to form its opinion as to whether a particular work is of special benefit to a portion of the area. A court has no power to override the council's opinion on such a matter simply because it considers it to be wrong. However, a court may interfere to ensure that the council acts within the powers confided to it by law. If, in purporting to form its opinion, a council has taken into account maters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought to have considered, the opinion will not be regarded as validly formed. Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (2), and see also Bankstown Municipal Council v Fripp (3))."

126. The Applicants' grounds challenged the validity of the decision to impose the scheme on the basis that the Council had failed to comply with an obligation to ensure that funds raised by the imposition of rates and charges must be "equitable" and to provide "equity" in rating generally as a condition precedent to the exercise of that power, and submitted that this applies not only to this special charge for the scheme but also the annual rates paid by the Applicants in respect of their properties.

127. Mr O'Brien referred to the decision of Batt J of the Supreme Court of Victoria in 101 Collins Street v City of Melbourne of 2 April 1996. The decision appears to be unreported except for a reference page 27 of Butterworths Unreported Judgements where His Honour expressed the view that a supplementary valuation of land for rating purposes was required by the relevant legislation to ensure that the property is put in the same position as properties valued in the general valuation or any supplementary evaluation occurring thereafter, and he said:

"In my view, the Respondent was, in a practical sense at least, correct in its submission that the adoption of the Appellants' interpretation would cause inequity between ratepayers and thus be contrary to the policy or purpose of the provisions in question and rating legislation generally."

128. Mr O'Brien submitted that this objective is specifically conferred on Council under Section 6 and 7(1)(h) of the Act.

129. Section 6 reads as follows (relevant parts in bold):

(a) to provide for the peace, order and good government of its municipal district; and

(b) to facilitate and encourage appropriate development of its municipal district in the best interests of the community; and

(c) to provide equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively; and

(d) to manage, improve and develop the resources of its district efficiently and effectively.

(2) It is the intention of Parliament that the provisions of this Act be interpreted and every function, power, authority, discretion and duty conferred or imposed by or under this or any other Act on a Council be performed or exercised so as to give effect to the purposes and objectives of Councils."

"In seeking to achieve its purposes, a Council has the following objectives -

(h) to raise funds for local purposes by the equitable imposition of rates and charges and by obtaining borrowings and grants;"

131. He submitted that Council should be held strictly to the performance of the Conditions on which it is authorised to exercise their powers to impose monitory liability on property owners (Gowans J Electronic Industries v Oakleigh [1973] VR 1170 and further submitted that whilst the Second Reading Speech for the introduction of the Local Government Act 1989 emphasised that the new valuation and rating provisions are designed to provide certainty and flexibility and enable public input, this should not be taken by Councils or the Tribunal to allow inequities in rating to arise or permit capricious or hopelessly inconsistent decisions to stand.

132. He again referred to the Second Reading Speech and paragraph 7(h) [quoted above] which refers to obtaining borrowings and grants for the raising of funds as well as by the equitable imposition of rates and charges, and submitted that Council was obliged to consider whether or not it should contribute to the scheme from the funds raised by general rates or by borrowings. He noted the cases that Councils hold rates in a fiduciary capacity for the services to which they are applicable.

133. Some matters on which Mr O'Brien relied in order to establish inequity were:

* The 1998 proposal for a special charge for the construction of Walnut Street from MacMeikan Street to Church Street (2 blocks) included a proposal that the Council would make a substantial contribution to the costs.

* The reference in Council's "Unmade Road Strategy" that for rural collector roads it is policy that it has since 1996 contributed at least 10% and sometimes more to road construction of "unmade roads" from the general rates,

* Contributions to road construction costs from the "Roads to Recovery" program,

* the construction of Church Street, Epping where the Council made a contribution.

134. He submitted that so long as the Council continues to contribute to the construction of some roads from the general rate under the Unmade Road Strategy but seeks to levy special charges under the "concept" of a partially constructed road strategy is in his view unfair.

135. He submitted in order to establish equity it is important that Councils have proper policies preferably with some public consultation prior to implementation in order to establish equity in the application of ratepayers funds. He submitted that the Council had sought originally to justify the Scheme as being part of the implementation of the "partially constructed road strategy " but that this is not in fact a strategy in the sense but rather a series of evolving spreadsheets on the relevant officers computer that represents the position on a road by road basis from time to time which are not dated. These were produced to the Tribunal. He submitted that the reference to this policy in the summary submissions presented in the officers report to Council on 5 February 2001 to this strategy was a reference to a policy or strategy in the sense of an adopted Council policy but it did not exist.

136. Accordingly his submission is that the Council has purported to act on a policy which does not exist which has not been adopted and on which there has been no public consultation.

137. Mr O'Brien submitted that on this basis the Tribunal can make the following conclusions that the special charge is inequitable having regard to:

* The existence of an adopted strategy being the strategy for upgrading Council's unmade road network that recommends Council contributions from ratepayer funds to some chargr schemes in respect of road construction in the Shire.

* The failure of the Council to prepare exhibit and adopt a comparable strategy in respect of Council contributions to the funding of constructive roads or partially constructed roads under schemes such as the present ones. The recommended Council contributions under the Unmade Road Strategy to the construction of roads but the failure to adopt a similar or any strategy in the present case while still contributing to other schemes ie Church Street, Epping.

* The failure of the Council to adequately explain why the scheme as originally proposed from MacMeiken to Church Streets was split into two whereby the sections of Walnut Street from James to Church Street was imposed without objection and the current scheme with a 100% resident objection.

138. Mr Batt submitted that Sections 6 and 7 do not have the effect that special charges can be invalidated under Section 185AA on the basis of perceived inequity. The sections confer objectives and do not operate to limit powers and nature of the provisions provide no basis to constrict the otherwise broad scope of Section 163(1) in which there is no suggestion that those sections need to be satisfied in order for action to the Council specifically authorised elsewhere in the Act to be able to be held valid.

139. He submitted that the test expressed by the majority of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355 at 388 - 389 and 390 namely even if sections 6 and 7 were not complied with, an examination of their purpose and nature would not reveal any legislative intent that the action taken under Section 163 would be invalid and he submitted the Applicant submitted no authority for his argument.

140. Mr Batt submitted that Mr O'Brien's argument is an almost completely undisguised invitation to the Tribunal to engage in a merits review and that nothing could be more subjective, and more related to the merits, than an evaluation of the equitableness of a special rate. This would set a dangerous and unwarranted precedent of unclear and unpredictable scope and effect.

141. He referred to the observations of Barwick CJ in Pestell at 311 and by Menzies J at 323 to the effect that decisions about the justifiability of Local Government taxes are issues apt to be committed to the opinion of a local government authority, and only likely to be interfered with by Courts or Tribunals. This is even more so when the even more broad, policy/ subjective concept of equity is in issue.

142. He said the Tribunal had not been provided with any information in the present case which would allow it to form a view whether or not the scheme was equitable. This inherently involves comparisons between particular charges within a well informed framework of economic, social, engineering and policy formulation. The Applicant has not assisted the Tribunal to undertake such an exercise as no information concerning other special charge schemes or that general framework has been put before the Tribunal. The exercise inherently involves a comparative analysis which is inappropriate to the issue which arises under Section 185AA namely whether the particular special charge was within power.

143. He submitted there is no basis for a suggestion that the scheme is not equitable. The applicant has adduced no evidence to show inconsistency with other special charge schemes imposed by the Council. No Council strategies have been produced or identified which applied in relation to this special charge scheme which were not complied with. He referred to Mr Lancaster's evidence that the decision of the Council to declare the special charge was not contrary to Council policy and in fact no Council policy applied in relation to it. No abnormality in the works proposed or their costs has been or could be identified.

144. Further he said that even if any inconsistency in Council's actions could be discerned that would not matter.

145. Mr Batt then embarked on a detailed examination of Council documents "policies" referred to and the evidence in support of his submission.

146. My conclusions are that I agree with Mr Batt that Sections 6 an 7 confer objectives, do not limit powers and do not provide a basis to constrict the scope of Section 163(1). An examination of the purpose and nature of the provisions of Section 163(1) and the other provisions for the making of the special charge do not reveal any legislative intent that the action taken should be invalid on the grounds asserted by the Applicant.

147. I agree that the submission is an invitation to the Tribunal to engage in a merits review. A comparison of Section 185(1) with the previous appeal provisions under the former Local Government Act which enabled an appeal on the ground of "unfairness or incorrectness" (Section 303 Local Government Act 1958), leads to the conclusion that the intention of the present legislation is that the grounds of review should be restricted to those in Section 185(1). I agree with Mr Batt that an evaluation of equity or fairness is in fact a merits review on a wider scope than that permitted by Section 185(1).

148. To engage in this exercise would be to ignore the injunction of the High Court in Pestell that the decisions of Councils on Local Government taxes should not be lightly interfered with by Courts and Tribunals.

149. Even if I am wrong in this conclusion I do not think the Tribunal has been provided with sufficient information to enable it to come to the conclusion that the special charge is unfair or inequitable. The material relied on to establish unfairness is inadequate and does not lead me to that conclusion. I agree with Mr Batt that a much more comprehensive analysis is necessary and the individual matters relied on are not sufficient. I find there is no adopted Council policy for roads of this nature. The "strategy" said to be contained in the spreadsheets was not a policy at all but merely a collection of the records of the Council in spreadsheet form kept by the Council officers, and I find that the Unmade Road Strategy did not on its wording apply to roads of this nature.

150. I agree with the Applicant that it would certainly assist Council and the Tribunal if the Council had developed with some public consultation, definite policies in relation to the making of charges for the construction of roads and in particular whether or not there should be any Council contribution. However the fact that there are no policies or that some former practices or policies in relation to other roads may differ from the current stance taken by Council that it will not make contributions to the construction of partly made residential streets does not demonstrate that the imposition of this special charge is unfair.

151. There is no provision in the Local Government Act which compels or creates an inference that Council should make any contribution to road construction. The power to levy a special charge under Section 163 does not contain any reference to Councils being so obliged and it is my view that Council's are entitled to exercise the power under Section 163 in accordance with its terms.

Failure to take into account relevant considerations / Taking into account irrelevant considerations

152. Mr O'Brien submitted the Council should have but did not consider the following matters in deciding to declare the Scheme.

"· The previous recommendation of the Council officer who prepared the 1997 proposed Scheme, based on the results of the 1997 Survey (Tab 6 Lancaster) that concluded on page 6 that:

(i) Walnut Street is not just a residential Street.

(ii) The Street is a key access road servicing the main street and shopping centre of the Whittlesea Township.

(iii) Consequently to ensure the apportionment of cost for nay Special Charge is fair and reasonable and able to stand up should an appeal be received by the AAT, it is recommended Council contribute to the cost of the works on the basis as discussed in the report.

The evidence of Mr Lancaster was that while he was "generally aware" of the previous scheme he had not availed himself of the results of the 1997 Traffic Survey, nor made himself aware of the basis for the Council contribution. In particular he was not aware of the reasons for the previous recommendation (particularly in relation to Walnut Street being considered as a key access street) when he considered its relevance in the officers report on 5 February 2001 that he (or Mr Pitt drafted). Mr Pitt was not aware of the Contribution or the Survey at all and was "surprised" by its existence. Mr Young and Mr Poulter who prepared the Recommendation to Council summarising the submissions continued to deny its relevance without referring to the above matters. Consequently the report and its contents were not made available to the Council for consideration.

* The existence of an adopted strategy, being the City of Whittlesea's Strategy for Upgrading Council's Unmade Road Network" originally adopted in 1996 and amended in September 2001 ("Unmade Road Strategy") that recommends Council contributions from ratepayer funds to some special charge schemes in respect of road construction in the Shire.

An inspection of the contribution principles contained in the scheme reveal that it was a policy document that, in substance if not name, was a relevant consideration to the imposition of the charge. In this respect the Policy:

Ø Was an adopted policy of the Council in April 1996.

Ø Was intended to deal with on-going maintenance and budgetry issues of both paved and unpaved roads. P571 Minutes.

Ø That there is no distinction, of substance between "made and unmade", "constructed and unconstructed" or "partly constructed and unconstructed" roads. These terms are not defined in the document and the degree to which a Road is constructed is to an extent a matter of degree and opinion and accordingly, each case is required to be assessed under the policy.

Ø The policy was motivated to deal with ongoing maintenance of the roads p571 Minutes.

Ø That there is no basis for excluding consideration of Walnut Street from the funding formula in the policy given that under the Policy Council were prepared to contribute to roads under the policy to reflect factors such as:

[diamond] Goodwill established by past funding practice

[diamond] Potential for objections to be reduced, thereby increasing the likelihood of the scheme.

[diamond] Minimising the costs of the scheme by gaining a wider acceptance from the residents involved.

[diamond] In cases involving a major link (Grants Road) and the remaining roads in the Eastern Hill area, community expectation will be to continue Council's past practice and fully fund any proposed contribution.

[diamond] The application of an apportionment ratio which the number of properties benefiting form the works compared to the cost, was so unfavourable as to prevent an equitable sharing of costs, whereby Council would further contribute substantially more than as suggested by the Strategy but always taking each case on its merits.

[diamond] schemes and minimising the implementation and administration costs of the program by attracting a wider community acceptance."

The Council maintained (and continue) to maintain that it was not relevant although no officer undertook an analysis of the Strategy to support this opinion or determine its relevance. It is submitted that the Policy was dismissed by the officers "out of hand" and accordingly was not before Council in its consideration of the Scheme.

* The failure of the Council to prepare, exhibit and adopt a comparable strategy in respect of Council contributions to the funding of "constructed roads or partially constructed roads" under schemes such as the present one or to incorporate issues relating to Council contributions in respect of these schemes into the Unmade Road Strategy.

* Contribution that originally recommended between 10% and 100% of contributions and now recommends between 10% and 40% of contributions under the Unmade Road Strategy but the failure to adopt a similar (or any strategy in the present case).

* The failure of the Council to adequately explain why the Scheme as originally proposed was split into two camps whereby the first section of Walnut Street was imposed without objection and whilst the second component was imposed with 100% objection.

* The failure of the Council to properly acknowledge that the benefit of the works in terms of reduced maintenance, was a basis for a Council contribution.

No officer brought to the Council's attention that no such strategy (in the sense of an adopted strategy) as the reference on page 7 and 9 of the Lancaster report on 5 February 2001 suggests exists, actually exists."

153. In February 1997, Council's consultant, HDS, prepared a briefing document for the reconstruction and improvement of Walnut Street between Church Street and MacMeikan Streets and other consultants provided Council with estimates and drawings. Council wrote to affected residents advising of a consultative meeting ultimately held on 27 July 1997.

154. Following that meeting and in the course of Council's finding its budget for 1997/8, Council deferred funding for this project to the following year.

155. In April 1998 Council officers raised the issue of splitting the works into 2 stages and Councillors were briefed and after further investigation Council on 8 December 1998 decided in relation to preparing its 1998/9 budget to split the reconstruction into 2 stages,

* Walnut Street between Church and James Street for that year.

* Walnut Street between James to Macmeikan Streets for the following year.

156. The survey and design criteria for the proposal was very similar to the present scheme.

157. The preliminary costings and apportionments advised by the Council in its letter of 28 October 1997 for the 1997 scheme were:

Ø Council contribution for an indented bus bay $15,000,

Ø The supermarket and the chemist for construction of indented parking adjacent to the supermarket $15,000

"The apportionment of the cost between property owners has been developed having regard to discussions with landowners at the information session and is based on benefit derived or potential benefit from access to Walnut Street and the frontage of the allotments on to Walnut Street.

The objective of the apportionment is to be fair and reasonable with the sharing of costs between properties along the street and Council.

To recognise that the street is a through access to a wider area Council proposes to contribute towards 40% of the cost of works attributed to abutting land owners."

159. Therefore of the remaining $180,000 Council proposed to contribute 72% (40%) with the 60% balance of $108,000 to be landowners contributions.

160. A briefing paper prepared for a forum between Council staff and Councillors on 7 April 1998 made some following comments in relation to the 1997 project.

161. It referred to Walnut Street as a Government Road, which is agreed is not correct.

162. It referred to the Council sealed car park on the north side of Walnut Street providing 46 car parking spaces for the town centre and also acknowledged the street is a bus route for regular passenger and school bus services.

163. It indicated that the outcome of the consultation with landowners was:

164. The briefing paper contained details of the traffic survey carried out on 3 April 1998 and described Walnut Street as "one of the key access roads" to the main street and shopping centres. The data showed that 98% of the traffic using Walnut Street was non residential traffic. The commercial traffic using the street was 23%. Through pedestrian traffic using the street was extremely high compared to residential pedestrians. I conclude from the survey that the "residential" traffic referred to of 2% was traffic from properties abutting the section of the road to be constructed and did not include other residents in Walnut street or in the town.

165. The total estimate of costs had not changed from the previous figure of $210,000.00 but briefing paper now proposed that 30% of the project cost - $63,000 was to be funded by Council as a contribution to recognise the role of Walnut Street in carrying high levels of non residential traffic accessing the township.

166. The briefing paper concluded with a statement as follows:

"As discussed above, Walnut Street is not just a residential street. This street is clearly a key access road servicing the main street and shopping centre of Whittlesea Township. Consequently, to ensure the apportionment of cost or any Special Charge is fair and reasonable and able to stand up should an appeal be received by the AAT, it is recommended Council contribute to the costs of the work on the basis as discussed in this report."

167. In a letter to landowners of 19 November 1998 Council advised of its decision to split the project and only include the section of Walnut Street between Church and James Streets in the 1998/99 budget and that the section from James to MacMeikan Streets was differed for further consideration.

168. The special charge scheme for the section between Church and James Street was implemented without objection.

169. The Unmade Road Strategy is a document entitled "City of Whittlesea - Strategy for Upgrading Council's unmade road network". The document tendered to the Tribunal is amended up to September 2001.

170. I accept that this is an adopted policy of the Council but is not referred to in the Planning Scheme.

171. The Applicant's assertions in relation to the unmade road strategy are indicated above. However I find that the unmade road strategy does not apply to Walnut Street . The document specifies exhaustively the roads to which it applies which are set out in a schedule and Walnut Street is not included.

172. Further I find that it is apparent from the document that it applies to "unmade roads" and not to sealed roads or partially constructed roads.

173. All parties appear to agree that the "partially constructed street" policy referred to in the documentation was not in fact a written policy but rather an informal collection of spreadsheets which changed from time to time reflecting what Council officers had in fact done in relation to street constructions on a progressive basis.

174. In considering a claim that a decision maker has filed to take into account a relevant consideration, one must have regard as to what is a relevant consideration.

175. I accept the submission of Mr Batt in this matter that this ground can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision.

176. The matter is discussed fully in the decision of Mason J in the decision of the High Court of Australia in Minister for Aboriginal Affairs v Peko Wallsend Limited at pages 39 to 41 [1985 - 1986] 162 CLR. Relevant extracts from those comments are as follows:

"The failure of a decision mater to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (29); CREEDNZ Inc. v Governor-General (30); Ashby v Minister of Immigration (31). The statement of Lord Greene M R in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (32), that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider."

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.

If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise that discretion, and a decision made within those boundaries cannot be impugned:

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power."

177. I agree with Mr Batt's submission that the Local Government Act does not expressly refer to any specific relevant consideration which the Applicants rely on. What they rely on is not mentioned in the legislation.

* whether a street is an access street for through traffic,

* the proportion of which is residential or non residential traffic,

* Council making contributions to a road construction scheme,

* previous proposals for road construction schemes,

are not mentioned in the legislation, except perhaps by inference in Section 185(1) which sets out the grounds for review. Accordingly I must conclude that if the Council failed to take these matters into account, that failure is not a ground on which to set aside the Council's decision, and that if it is referred to in Section 185(1) that Section provides the only remedy available to the Applicants.

179. It also appears from the evidence of Mr Young that the Councillors at the April 1998 Budget meetings did advert to whether a contribution should be made and reached the view that Council should not make a contribution.

180. In the same way the Applicants' ground that the Council should have considered the unmade road strategy falls into the same category. There is no obligation in the Local Government Act express or implied which requires the Council to consider whether it should make a contribution to road construction works pursuant to any policy.

181. Similarly the Applicants' ground that the Council failed to prepare exhibit and adopt a comparable strategy in respect of Council contributions to the funding of constructed roads or partially constructed roads falls into the same category.

182. In this context the Applicant raises the issue that a ground for setting aside the decision is the failure of the Council to adequately explain why the scheme as originally proposed was split into two sections whereby the first section of Walnut Street was imposed without objection whilst the second component was imposed with a 100% objection.

183. I conclude from the evidence of Mr Lancaster that this decision was taken principally for budgetary reasons. There were originally two objectors to the combined scheme. In my view there is nothing in the legislation to oblige the Council to decide to continue with a scheme in one form or another, especially if it makes the decision to do so before the statutory processes for declaring the scheme are initiated. It is legitimate and reasonable as well as being convenient and sensible to defer a road construction scheme for budgetary reasons and for a Council to proceed with a part of a street where it perceives there will be no objection and deal with another section where it perceives there may be some objection at a later stage. There is no evidence before me that there was any improper purpose in that decision, for instance to deprive the Applicants of any claim in relation to distribution of the burden of the special charge if the schemes was combined.

184. The Applicant also argues in this "failure to consider" category a failure of the Council to properly acknowledge that the benefit of the works in terms of reduced maintenance was a basis for a Council contribution. Again there is no reference to this consideration in the Local Government Act provisions relating to the imposition of a special charge and I find the Council was not bound to consider this issue. Further the Applicants appear to be seeking that the Council acknowledge as a motivation for the imposition of the road scheme that maintenance costs in the future will be lower and Council will be relieved of the financial burden.

185. It is well known that the costs of maintenance of a properly constructed road are less than that of an unsealed or partially sealed road. It is legitimate for a Council to have this in mind when entering into special charge arrangements for the construction of streets and all ratepayers will share in the benefit of that reduction. I do not consider that such a consideration is any evidence of improper purpose or is a consideration of a matter which should not ne considered.

186. What was contemplated in the spreadsheets representing the "partially constructed streets policy" may have been more an "understanding" in the mind of Council officers and Councillors than a policy. I do not consider the fact that this was referred to as a "policy" or that it existed in an informal way is of any significance or a ground for setting aside this decision. Likewise such a policy is not within any matter which is expressly or implicitly referred to in the provisions of the Local Government Act as a matter which Council was bound to take into consideration.

Section 223 Local Government Act - Unlawful delegation of decision making power/failure to consider submissions

* The failure by the Council to take into consideration the matters set out above is also sufficient to justify a declaration that the scheme is invalid under Section 223 of the Local Government Act or as an unlawful delegation of decision making power.

* The "presumption of regularity" on which the Council may seek to rely gives way to the evidence or properly drawn inference from the evidence.

* Under Section 98(1)(e) of the Local Government Act the Council was not permitted to delegate to Council's staff any power, duty or function under Section 223 of the Act. However under Section 223(3) the Council was permitted to delegate to Council staff "administrative procedures necessary to enable the Council to carry out its functions under this Section."

* In this respect "administrative procedures" means, for example, arranging for the publication of the public notice and sending out notice of the Council meeting referred to in Section 223(1)(d)(ii) of the Act.

188. The Applicant referred to what Deputy President Bruce said in her decision Leigh v Banyule City Council (1999) 7VPR 128 at page 91 in relation to summarising of submissions, and said that in the present case deals more with the treatment of these submissions of the Officer's Report and Minutes of the meeting and further that in this case the summary of the submissions in the Officer's report of the 5 February and the 20 February 2000 amounted to a consideration of the submissions and as a consequence the Council failed to take into account their submissions.

189. The Applicant submitted that the hearing by a sub-committee of Councillors on February 2001 of the objectors should not be taken as a consideration of the submissions, but rather Section 223(e) requires that the Council must take into consideration all submissions before it.

* Section 163A of the Local Government Act which provides

"A person may make a submission under Section 223 in relation to a Council's proposal to make a declaration under Section 163."

* Section 223 reads as follows [consider Council's submissions and reach conclusions] see page 27, 28, 29 & 30 of the submissions :

(1) The following provisions apply if a person is given a right to make a submission under this section (whether under this or any other Act) to the Council--

(a) the Council must publish a public notice stating that submissions in respect of the matter specified in the public notice will be considered in accordance with this section;

(b) the Council or where the Council so determines a committee of the Council must consider any written submission which is received by the Council within 14 days after the publication of the public notice stating that submissions will be considered in accordance with this section;

(c) any person who has made a written submission to the Council and requested that he or she be heard in support of the written submission is entitled to appear in person or by a person acting on his or her behalf before a meeting of the Council or the committee;

(i) fix the day, time and place of the meeting referred to in paragraph (c); and

(ii) give reasonable notice of the day, time and place of that meeting to every person who has lodged a separate submission and in the case of a submission lodged on behalf of a number of persons, to the person specified in the submission as the person to whom notice is to be given;

(e) the Council must take into consideration all the submissions made under this section and after it has made a decision must notify in writing every person who has lodged a separate submission and in the case of a submission lodged on behalf of a number of persons, notify in writing 1 of those persons, of the decision and the reasons for the decision.

(2) If a proposal by the Council involves the exercise of powers at the same time under more than one section giving a right to make a submission and written submissions are received under more than 1 of those sections the submission procedure may be carried out in respect of all the written submissions at the same time.

(3) Despite section 98, a Council may authorise the appropriate members of Council staff to carry out administrative procedures necessary to enable the Council to carry out its functions under this section."

191. From the evidence of Mr Lancaster there was public consultation with the residents whose properties were affected by the scheme. A letter was written on 20 August 1999 advising of a further public information/community consultation meeting on 1 September 1999 and that meeting was held. Over the following year there was sundry correspondence between the Council and affected owners in relation to the scheme.

192. Council resolved to commenced preparation of the scheme on 12 September 2000 and on 15 September 2000 wrote to the then owners of the properties affected and on 14 November 2000 resolved pursuant to Section 163(1A) of the Local Government Act of its intention to declare a special charge for the reconstruction and improvement of the street. On 21 November 2000 Council forwarded to the affected owners a Notice of Intention to Declare a Special Charge and the necessary public notice was given on 22 November 2000.

193. The date for the submission period was 14 days from the date of the public notice. During that period Council received one written submission from Mrs Gladys Pollard for herself and her husband.

194. Outside the submission period Council received further communications from J King and Associates, Lawyers (the King letter) on 7 December 2000, Mr King stating he represented all the proposed contributors and in the letter sought to make submissions concerning the scheme.

195. Council appointed a committee to consider the submissions, a meeting was convened and Mr and Mrs Pollard and Mr King were notified. Mr Lancaster prepared a memorandum for the committee members which included the submissions from Mr and Mrs Pollard and the King letter together with a summary of their contents and of responses to the contents.

196. Mr Lancaster attended the meeting which was attended in addition to him and committee members, Mrs M G Hawkins on behalf of Mrs Collier, D & A Cordel, S Brady, D Lindsay and J King.

197. The only person to address the committee was Mr King on behalf of the owners of the properties and paragraph 50 of Mr Lancaster's statement sets out the following in relation to that address:

"He spoke to the Committee freely, without interruption or time constraints. I do not now recall specifically everything Mr King said. However, I recall that he referred to the following matters: an assertion that the Scheme related to "road construction" and that this term was not wide enough to incuede the works proposed under the Scheme; an assertion that Council should make a contribution, in the order of 30%, to the costs of the Scheme as had been proposed in relation to the scheme proposed in 1998 for Walnut Street between Church and Macmeikan Streets which had not proceeded; an assertion that properties other than those to be included in the Scheme would receive a special benefit under the proposed works; the Council car park nearby the Road; the use of the Road by buses; traffic management issues which he asserted arose under the Scheme; and an assertion that Walnut Street was the main access to the commercial area of the Whittlesea township.

Following Mr King's address, a general discussion took place between Mr King, the residents and the Committee members. I was also involved in the discussion."

198. The next event was the Council meeting of 20 February 2001 in respect of which Mr Young gave evidence. The report to the meeting included a report on the committee meeting to consider submissions, it included a comprehensive summary of the submissions with the officer's comments a discussion of the outcome of the committee of Council meeting and a recommendation.

199. The question before me is whether there is anything in this procedure which would apply to the Tribunal to make a declaration that the special charge was invalid.

200. Firstly I agree with Mr Batt's submission that the King letter is not a submission to which Section 223 applies, because it was received outside the statutory 14 day period. However, and as Section 223 creates a time limit without contemplation of extension or modification the Council was not obliged to consider that submission, Mrs Pollard's submission was the only relevant submission for consideration but it contained little content and all of the substantive content was in the King letter. There is therefore no basis for identification of non-compliance with Section 223 if the King letter is not in issue.

201. However I consider that the matter should be considered as if the King letter were an issue. There is no question raised as to the validity of the appointment of the Committee of Council to consider the submissions or whether it failed to hear and consider the submissions. The extract above from Mr Lancaster's evidence of Mr King's address to the Committee is together with the fact that the King letter and Mrs Pollard's letter were attached to the Council report to the Committee in preparation for the meeting is sufficient to establish to me that the Committee had these submissions before it and can be presumed to have heard them.

202. There is reference in the Applicants claims that the summary of the submissions constituted a consideration of them by an officer of the Council which was not authorised, but a perusal of the summary contained in the report to the Committee of the Council leads me to find that the summary was a fair and complete summary of the submissions and that it did not contain any "gloss" or distortion sufficient to justify a complaint that the submissions were not fairly placed before the full Council or a defect in the proceedings. Mr O'Brien did not raise any specific complaint about any aspect of the summary in his submissions. I am satisfied that the Applicant has not identified any defect in the procedure adopted in the Council in considering the submissions.

203. I agree with Mr Batt that Leigh v Banyule City Council can be distinguished in particular because in this case the actual submissions were attached to the officer's report to the Committee but in that case they were not, the report being to the full Council. Further in that case there were many more submissions, there were mis-statements of the numbers of them and of how many were for and against the proposal and there were errors and omissions in the summary of a nature that cannot be identified in this case.

204. I have dealt with the Applicants arguments in relation to the splitting of the scheme in to two parts and the reduction of maintenance costs above.

205. Mr O'Brien made a submission in relation to the matters that he argued the Council had failed to take into account that as the Council had failed to take those matters into account that it is open on the evidence for the Tribunal to find that the decision of the Council to declare the rate without availing itself of this material was in the circumstances one based on an opinion which would not be justified on any reasonable grounds.

206. He referred to the unmade road policy, the partially constructed roads spreadsheets and the contributions made to the Oak Street and Church Street, Epping schemes and said these raise a strong inference of unreasonableness and os any inbconsistency in the allocation of ratepayer funds.

207. Many of these matters have been dealt within the Section 185(1) Application for Review and in the discussion above of whether the Council was obliged to take some of these matters into account. I have indicated above my views that the Council was not obliged to take these matters into account as it was not bound to do so by the relevant legislation. Therefor I do not consider that these claims create any grant for finding that the action of the Council in declaring the charge was unreasonable and decline to make the declaration sought on that ground.