Victorian Civil and Administrative Tribunal|2002-02-20

Collier v Whittlesea CC rh [2002] VCAT 117 (20 February 2002)

Applications under S 185(1) and 185AA of Local Government Act 1989 for a review of decision to declare a special charge for construction of a residential street, and for a declaration of invalidity of that decision, special benefit, specific objectives and relevant policies of planning scheme, whether works unnecessary or unreasonable, relevance on street being an access street or volume of non residential traffic, Ginnevan's case considered, general duty to act fairly, duty to have or consider policies, improper purpose, unreasonableness, basis of obligation for decision maker to consider matters, whether Council should consider contributing to road construction costs.

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

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.

(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.

Collier v Whittlesea CC rh [2002] VCAT 117

At a glance

Court

Decision date

Source

Judgment (488 paragraphs)

Collier v Whittlesea CC rh [2002] VCAT 117 (20 February 2002)

Parties

Legislation Cited (2)