Mr Andrew Grant represented all objectors/applicants.

1. This application is brought under s185(2)(b) of the Local Government Act 1989 to review a special charge on persons by the Council of the City of Frankston in preparing the Chetwyn Court Special Charge Scheme.

2. The location of Chetwyn Court is Frankston South and intersects at its western end with Humphries Road. A description by Mr Trebilco is:

"Chetwyn Court between Humphries Road to the west for a length of 210 metres to the east is presently unsealed. At this point the balance of Chetwyn Court for a distance of about 265 metres in an easterly direction is sealed with road pavement width varying from 2.8 metres with roll over kerb and channel on both sides and 4.3 metres with kerb and channel on both sides. There is no footpath on either side of the constructed sections of Chetwyn Court".

3. It is proposed to seal the 210 lined metres of the western end of Chetwyn Court to complete its construction. Mr Tribilco stated:

"The proposed standard of road construction for Chetwyn Court is an overall width of 4.0 metres back of kerb to back of kerb. Construction also includes underground drainage, landscaping works and passing bays. The width is consistent with the middle section of Chetwyn Court, and has been selected as the preferred width by the residents as part of the consultation process.

The scheme area encompasses all properties having abuttal to Chetwyn Court. This includes all properties with abuttal to the unmade section together with properties that have abuttal to the constructed section. These latter properties are included in the Scheme because it is considered that they will gain some Special Benefit by the construction of the balance of Chetwyn Court, as it is their only means of access to their properties".

4. The land surrounding Chetwyn Court is zoned Residential 1 under the Frankston Planning Scheme and is affected by Design and Development Overlay Schedule 1 and Significant Landscape Overlay Schedule 3. It was highlighted that under the Planning Scheme there was a potential to subdivide two of the lots in the Court Special Charge Scheme area and that potential has been taken into account in the apportionment of costs.

1. Special benefit referred to by Council, is derived by all residents not just those on the unmade section of road. Council's suggestion of increased value to properties unfounded, therefore should not be used in calculation of benefits.

2. Proposed allocation of costs in inequitable. Calculation of Benefit Unit and method of apportionment of costs is disputed. Calculation of modified area disputed. Council should carry greater proportion of costs, due to past planning decisions.

3. Frankston Council's planning policy relating to Chetwyn Court has been inconsistent in regard to the three different developments.

6. The proposal is for the completion of sealing of a short length of Chetwyn Court to enable all of those living in the court the benefit of a sealed road. At present the western end of 210 metres is unsealed and occupants of approx. 23 lots at the eastern end travel over this short unsealed section to exit the court. Photographs were tendered to show the unconstructed and two different cross sections of sealed sections east in the court. There is no doubt from the information submitted that there is a need to complete this unsealed section of the court.

7. The grounds on which a person may apply to the Tribunal for a review of a decision of a Council imposing a special rate or charge on that person are set out in Section 185(2)(b) of the Local Government Act 1958 and are as follows:

"(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;"

8. The issues in this request are whether there is a special benefit to those contributing to the special charge scheme and whether the distribution of the cost amongst the contributors is unreasonable. These are grounds (i) and (ii) in Section 185(b) of the Act relied on by the objectors/requesters who confirmed that they were not relying on grounds (iii) or (iv).

9. The Council through its planning expert witness outlined the history of development of subdivisions in the court area that started in 1969/70 and continued with various odd shaped allotments to as recent as 1999 with a proposal before Council now in 2001 for a resubdivision of No. 223 Humphries Road.

10. It was the piecemeal development and perhaps missed opportunities of previous Council's in not requiring the court to be sealed full length that formed the thrust of unreasonableness of changes for the objectors.

11. In dealing with the special benefit, the Council has considered the whole court, even though the eastern end is constructed. They have apportioned 8.1 benefit units to the properties abutting the unsealed section and 4 benefit units distributed amongst those properties fronting the sealed section and using the unsealed section to exit the area.

12. The Tribunal accepts Mr Lucas's submissions as to the relevant principals of law that apply to the Tribunal's consideration of this matter and in particular as follows:

(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 drives 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 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 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.

13. The Tribunal sees that those within the Chetwyn Court all receive a special benefit from the construction. The benefits were listed by Mr Trebilco and include dust suppression, better drainage, less noise, etc.

14. There is no doubt that those living in the unsealed section receive additional benefits and after considering all submissions, the Tribunal is satisfied that all those receiving a special benefit have been included and that the split in apportionment between the sealed and unsealed sections is reasonable.

15. The Council could have prepared a scheme that did not include the eastern end contributors as there are many ways of assessing an apportionment or cost distribution within a proposed works area.

16. In relation to the increase in value of properties within the unmade section of Chetwyn Court, the Tribunal found the evidence of the Valuer Mr Patel unhelpful in that it did not relate to the area, however it confirmed what has happened in the past with schemes the Tribunal has been aware of, that property values increase and not decrease.

17. Mr Grant considered it most unfair that previous Councils had erred in not requiring construction at subdivision time. The Tribunal unfortunately has to assess the situation before it now and although it understands the point put by Mr Grant, no allowance can be made for that in this current consideration.

18. In considering the unreasonableness of the charge, as stated before there are many ways that an apportionment of the total cost of a scheme can be considered by a Council. In this case, the Council investigated four alternatives and adopted what it considered was the fairest and most reasonable split. After studying the apportionment with regard to the modified area basis, again, the Tribunal sees this as reasonable considering the size and shape of allotments and the location of each contributor abutting the unsealed section and finds that the Applicants have not established that the basis of the distribution of the charge amongst those persons who are liable to pay it is unreasonable.

19. Overall, the Tribunal considers that the scheme is needed, there is a special benefit to all contributors, a larger proportion being to those within the unsealed section and that the second half of the charge on a modified area basis is all reasonable and there are no reasons to adjust the apportionment.

20. The Tribunal dismisses the applications and confirms the special charge scheme.