78 Section 62 of the Act deals with what conditions can be put on permits. It is a comprehensive section and cross references to other parts of the Act, and the planning scheme. Section 62(1)(a) requires that, in deciding to grant a permit, the responsible authority must include any condition which the planning scheme or a relevant referral authority requires to be included.
79 We note that section 62(1)(a) refers to conditions which the planning scheme requires to be included, whereas a levy under a development contributions plan is both a condition required by the Act, and a requirement under clause 45.06-1 of the Development Contributions Plan Overlay in the planning scheme. To the extent that a condition included under this clause of the planning scheme can include additional matters over and above those required by section 46(N), this is acknowledged in the opening words of section 46N(1) which states: "Without limiting section 62..." Such a condition cannot be contrary to the requirements of the Act but may include additional matters provided for in a development contribution plan.
80 Thus Mr Appudurai is right when he says that "the requirement in s46N(1), that a permit condition which requires the payment of a levy payable under an approved development contributions plan, operates independently of s62 of the Act", and equally when he says, "if a specific provision in the Act makes provision for a mandatory condition there is no need to further authorise that requirement under s62 or any other provision." However, we do not consider that this is what section 62(1) does. Section 62(1) simply makes it clear, in the context of setting out what conditions can be put on permits, that such conditions must be included.
81 Section 62(2) of the Act then sets out a range of other conditions that may be included in a permit as the Responsible Authority thinks fit. They of course are subject to the requirement that they are valid in terms of being relevant, reasonable and certain. The various limbs of section 62(2) are cumulative. They are each separated by the word "and", which means that any or all of these types of conditions may be included, provided they are valid.
82 Section 62(5) deals with conditions that relate to either an approved development contributions plan or a condition requiring specified works, services or facilities to be provided or paid for. The options are set out in paragraphs (a), (b) and (c). Sections 62(5)(a) enables a condition to implement an approved development contributions plan. Section 62(5)(b) relates to section 173 agreements and section 62(5)(c) relates to situations where the works, services or facilities will be provided by the applicant; or paid for wholly by the applicant; or provided or part for partly by the applicant where the remaining cost is to be met by any Minister, public authority or municipal council providing the works, services or facilities. Each of the limbs of section 62(5) is separated by the word "or". This contrasts with use of the word "and" separating the limbs of section 62(2).
83 Section 62(5) therefore covers the options of including a levy under an approved development contributions plan (bearing in mind that this is a mandatory condition that must be included in a permit where relevant); or the provision or payment for infrastructure under a Section 173 agreement;[26] or the provision or payment of works, services or facilities where they are to be provided or paid for wholly by the applicant, or partly by the applicant and partly by a Minister, public authority or municipal council. It does not provide any option for the provision or payment for works, services or facilities where they are to be contributed towards partly by the applicant and partly by other developers.
84 Section 62(6) then provides that a responsible authority must not include in a permit a condition requiring a person to pay an amount for, or provide works, services or facilities, except in accordance with subsection (5) or section 46M; or a condition that a planning scheme requires or a referral authority requires to be included as referred to in subsection 1(a). We would say that this means there is no opportunity to include a condition requiring a person to pay an amount for, or provide works, services or facilities in part, where other contributions to those works, services or facilities will also be required from other persons. In other words, it eliminates the possibility of a de facto development contributions plan that is not an approved development contributions plan in accordance with Part 3B of the Act.
85 Read together, and in the context of the amendments to the Act in 2004 referred to earlier, we consider that omission of the option to enable a condition requiring a person to pay an amount for or provide works, services and facilities that will also be contributed to by payment or provision in part by other persons (other than solely by a Minister, public authority or municipal council) is deliberate. The combined effect of sections 62(5) and 62(6) was to overcome the doubts and deficiencies regarding the ability to impose conditions revealed by Curry v Melton CC and Christian Brothers Vic Pty Ltd v Banyule CC referred to in A new Development Contributions System for Victoria and the Minister's second reading speech for the Planning and Environment (Development Contributions) Act 2004. Together, sections 62(5) and 62(6) make it clear that there is no impediment to imposing a King Ranch type condition on development and that there is no distinction to be drawn between works, services or facilities in this respect. However, King Ranch type conditions, whether imposed by some general condition making power or specifically under the provisions of section 62(2) of the Act, relating to the payment or provision of works, services or facilities, are subject to the limitations imposed by section 62(5).[27] In other words, approved development contributions plans are the only means by which contributions to the provision of works, services or facilities can be obtained from more than one developer. This was the finding also of the Tribunal in Springhaven Property Group Pty Ltd v Whittlesea CC[28]and Naprelac v Baw Baw SC[29].
86 Mr Appudurai argued that the three limbs of each of sections 62(5) and 62(6) must, when considered in the context of the scheme of the Act, be given a cumulative operation notwithstanding that the word "or" (rather than "and") is used in those provisions. He contended that the limbs of the sections are not mutually exclusively alternatives.
87 We acknowledge that there are situations where courts have interpreted sections of Acts separated by the word "or" in the way contended for by Mr Appudurai. We do not accept that such an interpretation should be given in these circumstances where the same works, services or facilities are in issue[30]. We consider that use of the words "and" and "or" in different subsections of the same section (section 62) imply an intent to mean different things. The onus would be upon the person contending that they mean the same thing to justify this by reference to the natural and unambiguous meaning of the section or the purpose or object of the Act as required by section 35 of the Interpretation of Legislation Act 1984. We do not consider that Mr Appudurai in his arguments has done either of these things. We consider that his argument is highly contrived and contrary to the purposive approach we have found it is appropriate to apply in this case.
88 We must admit to finding his argument difficult to comprehend. He appears to be arguing that section 62(5)(a) authorises the inclusion of a condition required to implement an approved development contributions plan itself other than collection of a levy, which is already covered by section 46N. He also seems to be arguing that the terms of section 62(5) do not limit the council to one or other only of the three options listed, but may include a condition requiring both a levy under an approved development contributions plan (under section 62(5)(a)) as well as a condition that specified works, services or facilities that are necessary as a result of the grant of the permit are be provided by the applicant under section 62(5)(c), provided that a person who seeks to act under a permit is given credit for providing works pursuant to paragraph 62(5)(c) when also levied under paragraph (a). Such an interpretation would enable the council to do what it is trying to do here where the council wants the works to be provided by Dennis Family Corporation (Stage 2 of Linsell Boulevard and its intersection with Narre Warren-Cranbourne Road) and it will offset the works against the levies otherwise payable in respect of the land in the Permit but only to the extent of the value of the levies, not the full value of the works.
89 We do not accept this interpretation. We consider it to be contrary to the plain ordinary meaning of sections 62(5) and 62(6) and contrary to the purpose of the 2004 Act which amended them. For the reasons we have set out above, we also consider that such an interpretation is completely at odds with the nature of development contributions plans as included in the Planning and Environment Act 1987 and supported by material such as the Development Contribution Guidelines. (This is material which the government intends shall be used in conjunction with the provisions of the Act to guide users in their understanding of the development contributions system and in the legislative provisions in the Act, and the preparation and administration of development contributions plans.) Finally, we consider that the whole concept of "double dipping", which this interpretation seeks to justify, is at odds with the principles set out originally in the Eddie Baron case, particularly that relating to equity.