Mr Bruce Strong, Works Engineer, represented the Shire of East Gippsland.

The following applicants for review appeared in person:

Mark Ginnivan. Mr Ginnivan also appeared on behalf of Jenny Ginnivan.

1. This proceeding before the Tribunal relates to three applications made under Section 185 of the Local Government Act 1989 for review of the imposition by the Shire of East Gippsland of a special charge on a number of properties in Mirrabooka Road, Mallacoota, for the purposes of street construction.

2. At its meeting on the 24th of January 2000, after determining that certain properties would receive a special benefit from the works, the Shire of East Gippsland resolved to give notice of its intention to declare a special charge for the purpose of defraying the expenses incurred by the Council in relation to the construction of a bituminous seal on Mirrabooka Road. Notices of intention to declare the charge were posted on the 7th of February 2000, and in response 11 written objections to the scheme were received, including one from each of the appellants.

3. Having considered the objections made, including at a meeting of affected property owners, the Council resolved on the 26th of June 2000, to declare the special charge without amendment. Notices to this effect were posted on the 13th of July 2000.

4. As earlier noted, the scheme is for the purpose of funding works to Mirrabooka Road: the construction of a bituminous seal from the end of the existing seal near the intersection with the Genoa-Mallacoota Road, to the intersection of Mirrabooka Road and South Gateway. The works include construction of a 5.5m wide primer seal on the existing road alignment. The full pavement width proposed is 7.3m. There are some associated road realignment works at either end of the section to be sealed. The total length of the works is 1360m. A final seal (or re-seal) has been included in the scope of the works. The final seal is scheduled to be constructed around 12 months after completion of the primer seal. The total estimated cost of the works is some $158,491.

5. The special charge scheme is constructed in such a way that all of the costs will be recovered from affected property owners. The Council itself is to make a contribution to the scheme of $10,495.63 which is the amount apportioned against the cemetery reserve abutting the roadway and the reserve for municipal purposes. A further amount of $45,867.45 is to be contributed from contributions earlier made to the Council for 12 of the 35 properties abutting the roadway, which have been deemed by the Council to have already contributed to the road construction cost via developer road upgrade contributions when the land along the roadway was earlier subdivided. Thus the number of contributing properties is 25, including the two Council properties.

6. The affected properties are quite variable in area and somewhat irregular in shape. Frontages to the road are also variable ranging from 10m in length to excess of 340m. The properties abutting the special charge section of Mirrabooka Road are contained within five separate zonings of the Planning Scheme: the Residential 1 Zone generally applying to properties to the north and south of the road towards its eastern end, in which no minimum lot size for subdivision applies; within the Rural Living 1 Zone - applying to the central section to the north and south of the road, in which a 2h minimum lot size applies; and the Low Density Residential Zone which applies at the extreme western end of the roadway in which a 0.4h minimum lot size applies. The cemetery is included in a Public Use Zone and the public park and the Council reserve in a Public Park and Recreation Zone. Mirrabooka Road itself is included in a Road Zone 2.

7. The apportionment of costs amongst the properties liable to pay is partly based on abuttal length and partly based on a standard benefit unit. Fifty percent of the project cost are intended to be raised by charges against abuttal length and 50 percent through the benefit unit approach. This equates to some $37.03 per metre of abuttal length and each benefit unit charged is $1,116.14. Mr Strong explained that abuttal length is calculated as property boundary length adjacent to the roadworks, except at intersections where a discount for works abutting the side of properties is given: one-third only of the cost that would be apportioned for a frontage is charged. He said that in general a sideage on corner properties is deemed to be the longest boundary length. He also said that the use of benefit units accounted for odd shaped properties and to reflect the subdivision potential of properties. He said for example, properties within the Residential 1 Zone were liable for more benefit units than those in the Rural Living Zone because of a higher potential for subdivision. The number of benefit units apportioned to each property therefore varies.

8. Mr Strong's written submission to the hearing of the application for review described the special benefit which the Council believes would accrue to the properties as follows:

"Construction of a bituminous seal on Mirrabooka Road will provide a special benefit to those who are 1required to pay. Access to and egress from properties will improve, there will be a reduction in erosion of gravel pavement, there will be reduced dust and less inconvenience as a result of potholes and corrugations."

9. The grounds upon which an owner of property upon which a special rate has been levied may seek a review by the Tribunal are set out in Section 185(2)(b) of the Local Government Act. The four grounds are:

"(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."

10. Sub-section (3) of Section 185 sets out the powers which the Tribunal has on review: the Tribunal may vary the special rate or charge in relation to its application to the applicant for review; set the special rate or charge aside if the ground in sub-section (2)(b)(ii), (iii) or (iv) is established, or dismiss the application and confirm the special rate or charge. Section 185AB requires the Tribunal to take into account any relevant planning scheme and where appropriate scheme amendment.

11. Three applications for review have been lodged with the Tribunal in response to the imposition of the rate by the City.

12. One application for review was lodged by Mark and Jenny Ginnivan who are the owners of 178 (or 180) Mirrabooka Road, which is a small triangular lot to the immediate south of the cemetery on the western side of the road. Their land is also known as Lot 7 on Plan of Subdivision 323720. The charge against the Ginnivan property comprises the following: one benefit unit of $1,116.14 and a charge of $2,382.70 against their 64.35m frontage, giving a total of $3,498.84. The Ginnivan's property is included in the Low Density Rural Zone.

13. A second application was lodged by Keith and Deborah Weire, who are the owners of the property at 81 Mirrabooka Road, being Lot 1 on Lodged Plan 125941. The Weires own a conventional rectangular shaped residential lot located at the eastern end of Mirrabooka Road on its south side. Their lot is included in the Residential 1 Zone of the Planning Scheme. The charge against the Weire property is one benefit unit of $1,116.14, and a charge of $70.54 against a 20m frontage, giving a total charge of $1,856.68.

14. The third application for review was lodged by Jennifer and Gary Warren, who own a large lot located centrally to the special charge area on the south side of Mirrabooka Road. The land is known as Part Crown Allotment 4 and Part Crown Allotment 9. The lot is irregular in shape with a curved frontage to the southern side of the road and a rear abuttal to another road reserve. The lot is in part included in the Residential 1 Zone and in part in the Rural Living Zone. A total charge of $18,410.37 against that property comprises a charge of six benefit units totalling $6,696.81 and an abuttal charge of $11,713.56 comprising a charge against 217.89m of frontage and 295.38m of sideage. Advice provided at the hearing indicated that the Responsible Authority deemed the western part of the Warren's property included in the Rural Living Zone to have sideage to Mirrabooka Road and the eastern portion of their land in the Residential 1 Zone to have frontage to the road. The six benefit units for that property comprise one in the Rural Living Zone and five benefit units in the Residential 1 Zone.

15. Mr Ginnivan's written grounds submitted with the application for review indicated that the Ginnivans' view was that the charges for persons liable to pay were unfair and unreasonable. They argued that they purchased the block four years ago knowing that they were living on a main road in Mallacoota which they considered to present some danger to their three children. They said that the danger of the road would, however, increase once it was sealed, as traffic volumes would most certainly increase as would the speed of vehicles using it. The Ginnivans also indicated that they knew the road to be a Government Road which they believed meant that they would not have to incur any costs for any road works.

16. The Ginnivans also said that they believed that Mirrabooka Road acts as a ring road for the town. They also noted that the other end of the road was constructed some years earlier without any charge to the residents abutting it. They said that the Shire had already taken money some years earlier for abutting subdivisions to make the road and hadn't made it. It was said that costs had spiralled since taking the money and the residents were now being asked to pay the balance.

17. Mr Ginnivan also said at the hearing that a part of his property faces the already sealed section of Mirrabooka Road and he would not be inclined to use the new section proposed to be constructed for access. It was also his oral submission that the subdivisions which feed into South Gate and other residential streets at the eastern end of Mirrabooka Road, use the road as access to this part of the township. It was also said that Mirrabooka Road is effectively a "through street" into the town.

18. The written grounds by the Weires were that the works would not provide a special benefit to them and that they were unnecessary, unreasonable and unsuitable having regard to the environment and the use of the road. Their grounds included that Mirrabooka Road is a Government Road and they were under the understanding that the sealing of the road would not be required to be at their expense. They also said that the need for the sealing of Mirrabooka Road was a direct result of the decision made by the Council for the diversion of Lakeside Drive onto Mirrabooka Road and approval of adjacent residential estates. The Weires submitted that this has resulted in increased traffic on Mirrabooka Road and made it a public access road in and out of town and a service road for the adjacent estates. It was also said that Mirrabooka Road serves as an alternative access in and out of town for delivery trucks and holiday makers. The Weires said that it should not be the responsibility of a few residents who own property in Mirrabooka Road to bear the cost of sealing when the road serves as a main access road for everyone. They said the upgrading of the road is properly a Council responsibility, and it was outrageous on the Council's part to try and pass the cost on to the owners on the unsealed section of Mirrabooka Road.

19. Their grounds also included that housing has not developed on the unsealed section of the road over the last 12 years and the unsealed road has provided adequate service to the property owners using it. The Weires went on to say that in their view the sealing would be, at best, of no benefit to them, and would change the character of the area in taking away its rural appearance which was the very reason for them to purchase in the area.

20. The Warrens' grounds again referred to the greater than local function for Mirrabooka Road. They tendered a map which indicated that in their view Mirrabooka Road acted as part of a "ring road" around the township leading off the Mallacoota-Genoa Road generally to the north. They said a special charge on property owners abutting the road was unreasonable on this basis. They also said:

"Mirrabooka Road is, equally with Maurice Avenue Exit and Karbeethong Road, a main entry and exit road for all traffic from the Genoa access route. This access is signposted at Genoa as a scenic drive encouraging visitors to sightsee in our area. It is an access road for service providers such as Telstra (the Telecom tower/office), school bus route, fire and ambulance and for cemetery usage."

21. They also noted that the road was used by a large number of trucks associated with developing residential streets nearby. They again referred to the understanding that the road was a public road and therefore they would be not liable to pay for upgrading. It was noted also that when flooding closes off Lakeside Drive, Mirrabooka Road is the only access for residents who live in four abutting streets.

22. The Warrens concluded their written submission by saying that they did not have the funds to pay for the road making account and would have to enter into a payment scheme.

23. As I indicated to the parties at the hearing of the application for review, I do not believe that their view that because Mirrabooka Road is a Government Road abutting property owners cannot or should not be liable to pay is correct. There is no distinction between these types of road in the legislation.

24. I also am of the view that all of the appellants' properties would receive a special benefit from the proposed scheme in terms of an improved standard of road access to their property. I do not believe that the dangers associated with potential for raised vehicle speeds outweighs the other benefits. Also, albeit the Warrens may not choose at the present time to utilise access from the road (and maintain the current access point from the already sealed section of the road), clearly their land has potential for subdivision and access from new lots onto a sealed section of road would be beneficial to the land.

25. 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, a 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 ...".

26. With respect to this matter, the material presented to me at the hearing suggested, but did not allow me to conclusively establish, that the road was subject to high levels of through traffic and thus served a role beyond a local residential access street. The material submitted by the Warrens indicated that a recent count had recorded some 350 vehicle movements on the road in one 24 hour period. This level seemed to me to be higher than the volume of traffic that might be expected to be generated by the number of properties along the relevant section of the road. Upon my direction, Mr Strong after the hearing undertook a count of vehicles utilising the roadway. The 24 hour count was taken on the 27th of June 2001 and the results were forwarded to the Tribunal and the other parties. The survey indicated that some 153 vehicles travelled along Mirrabooka Road and turned into Genoa Road, and some 154 vehicles entered Mirrabooka Road at this intersection. This represents a total vehicle movement at this section of Mirrabooka Road of some 307 car movements into and out of Mirrabooka road at the intersection. There were two further movements by buses and 14 by heavy vehicles giving a total of 320 movements.

27. Mr Strong's further written submission also included that there were some 24 residences in the rated section of the road of which only 20 appear to be occupied permanently.

28. This information, as was submitted by the objectors in reply, appears to indicate that there are traffic volumes on this section of Mirrabooka Road which are in excess of those generated by the abutting properties which are liable to contribute to the rate scheme. Even if the Council's 20 occupied dwellings are adopted, rather than the 16 which the objectors allege is the case, applying 10 vehicle movements per household (a metropolitan rate) gives an expected maximum traffic generation of 200 vehicle movements per day. I am inclined to the view, however, that a lesser rate of perhaps six to eight vehicle movements per day per household would be more characteristic in this area, and applying that rate, some 120 vehicle movements a day might be expected. This is less than 50 percent of the over 300 vehicle movements actually recorded. I also agree with the objectors' further submissions that as the road count was conducted in the middle of winter and outside the school holidays, the through-traffic would be at relatively low levels. I think their further submissions that in summer and the holiday season when the population of the township swells, the number of through-traffic movements would increase significantly and would be far in excess of that recorded on the 27th of June. It is acknowledged that there would likely be some increase in non-through traffic in such periods also as dwelling occupancies would increase, but I believe that nevertheless expect the wider town pressures to be relatively higher.

29. In summary I agree with the objectors' submissions that Mirrabooka Road is a "ring road" or a main public access road in and out of the township providing access to the Genoa Road and thence the main highway. It is therefore not reasonable that the liability for the upgrade of this road should fall solely on roads on abutting properties (with only a small contribution made by subdividers of land which feed into it) (amounting to some $45,867.45 out of a total of $158,491.00).

30. 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.

31. On this matter also, Mr Strong referred to the Council's guidelines with respect to contributions to special charge schemes. These were developed, he said, over the last five years and had not been publicly exhibited. (A copy of those guidelines was provided after the hearing to the Tribunal and the other parties.) The guidelines deal with the costs to be included in an apportionment, and the relative liability of abutting owners to various types of street construction schemes. With respect to local streets the guidelines provide:

"Owners pay for all new works, including earthworks, kerb and channel, underground drainage, service alterations, house drains, nature strips, landscaping, street trees, earthworks and road pavement and sealing works up to 7.5m pavement width and up to 300mm pavement depth, footpaths up to 1.5m width. Road widths to accord with the Victorian Code for Residential Development. Council pays balance."

32. Mr Strong said that based on traffic volumes it was determined that the proposed works should include a pavement width of 7.3m and a seal width of 5.5m, which is below the Council contribution threshold. The Council therefore determined that a contribution on their own part was not warranted, other than for the Council owned land.

33. I do not believe, however, that the Council's guidelines, provide a proper basis for fairly apportioning the charge to the abutting landowners. The guidelines (which have not been subject to public scrutiny and should be afforded little weight for that reason), appear to be based on the presumption that roads up to 7.5m wide will only be catering for non-through traffic. This seems to be the interpretation placed upon the guidelines in the minutes of the East Gippsland Sire Council of the 26th of June 2000 where, in reference to the guidelines, it is said that:

"In general affected owners pay for all costs for roads up to 7.5m wide. If the through traffic is such that the road has to be wider than this, Council will pay for the extra road width above 7.5m."

34. 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.

35. 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 of 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.