Subject Land North Road (between Western Port Highway and Centre Road) Langwarrin

Application for declaration pursuant to Section 185AA of the Local Government Act 1989 dismissed.

For the Applicants: Mr A. Radford instructed by Guymer Naidoo Solicitors

For the Responsible Authority : Mr P. Lucas of Macquarie Lawyers and Strategists

CORRECTED PURSUANT TO SECTION 119 OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

1. This proceeding relates to the same special charge scheme which is the subject of Proceeding No. 2000/34964, an application for review under Section 185 of the Local Government Act 1989 of Council's adoption of the scheme. The two proceedings were heard concurrently. This proceeding is an application pursuant to Section 185AA of the Local Government Act 1989 for declarations that:

(a) The special charge declared on 10 April 2000 was in error and not proper;

(b) The special charge declared on 10 April 2000 was invalid and is void and of no effect;

(c) The special charge declared on 10 April 2000 does not apply to the applicant.

2. The background and findings of fact in Proceeding 2000/34964 are to be regarded as incorporated by reference into these reasons.

3. The application places reliance on the following grounds:

"(a) The imposition of a special charge is an improper use of the discretion conferred upon Council pursuant to S.163 of the Act;

(b) The basis of distribution of the special charge amongst those persons who are liable to pay it, having regard to the contribution made by the Council and other deemed contributions of other land owners, is and was unreasonable;

(d) The Council did not afford a fair hearing to the applicants as to the proposal to impose the special charge;

(e) The Council disregarded submissions made by the applicants pursuant to the Act and/or considered irrelevant material and/or based its decision on irrelevant material;

(f) The Council failed as required pursuant to Section 223 of the Act to provide reasons in writing to those applicants who made submissions for its decision to declare the special charge;

(g) The Council's proposal to impose the special charge was guided by relevant [presumably irrelevant] and erroneous considerations as to the basis of distribution of the cost of the special charge;

(h) The Council failed to take into account the distinction between funding for private roads and Government roads and the expectations of the applicants that that distinction would be maintained in and during the process of the Council exercising its discretion as to whether or not it should declare a special charge, such that at most the applicants should only be liable for half the cost of kerbing, channelling, footpaths if and when such is required (presently the applicants maintain this is not required);

(i) The works referred to in the special charge are unnecessary;

(j) The works referred to in the special charge are premature;

(k) The Council contribution to the works referred to in the special charge is

(iii) beyond what is required to seal the road adequately

(iv) beyond what is required taking into account the amenity, state of development of the area, the likely usage of the road in the area and the relevant planning scheme."

4. It was common ground that this application raises fundamentally different issues from merits reviews such as the Tribunal conducts into the grant or refusal of planning permits or under Section 185 of the Local Government Act into determinations to levy special charges. Section 185 AA authorises the Tribunal to declare the validity or otherwise of Council's decision. It is concerned therefore with the legality of what Council has done or decided to do not the general merits.

5. It may be accepted that if a statutory decision maker is guided by an irrelevant consideration in making a decision that this will invalidate the decision. Further, it seems that an administrative decision may be invalid if it is "unreasonable"; but this ground of invalidity is not licence for a court or tribunal simply to consider for itself the merits of the question determined by the administrative decision maker. According to the learned editors of Halsbury's Laws of Australia paragraph [10-2252] page 13,508 (Service 140):

"As a general ground of review, unreasonableness has generally been understood in the United Kingdom as requiring "something overwhelming" in order that it be established. The ground of Lord Greene MR which requires that a decision be so unreasonable that no reasonable person could have reached it [Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223] has been described subsequently by Lord Diplock as requiring a decision which, looked at objectively must be so devoid of any plausible justification that no reasonable body of persons could have reached it [Bromley London Borough Council v Greater London Council [1983] 1 AC 768]. Another formula is that unreasonable administrative action is action which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt. [Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014, 1064] A stricter formulation of Lord Diplock is Wednesbury unreasonable if it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to the question to be decided could have arrived at it. In Australia, the latter formula has tended to be rejected in favour of the formula "devoid of any plausible justification", which has been applied by some Federal Court Judges. [Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J. Dorman v Riordan (1989) 19 ALD 185, 188 per Wilcox J. Secretary Department of Social Security v Willee [1990] FCA 221; (1990) 20 ALD 557 per Foster J. Wouters, Wright and Holmes v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342] Decisions which are so unreasonable no reasonable administrator could have reached them have also been described as "perverse". There may be a preference for not electing any particular formula since cases of manifest unreasonableness may arise which nevertheless do not satisfy the formula. The High Court has refrained from identifying any one formula as being of more help than another, although there was support for the view that an unreasonable decision is one for which no reasonable basis can be discerned [Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379].

The courts proceed with caution in holding this ground of review established, regarding it as very confined in its scope because it invites interference with the merits of administrative decisions. The High Court has held that a failure to give sufficient weight to certain information and attaching unwarranted importance to other evidence may not amount to Wednesbury unreasonableness if this is no more than a matter of the court disagreeing with the process of reason on an issue of fact."

6. It can be seen that many of the grounds in the applicants' application for declaration seem to be an invitation to reconsider the merits of Council's decision rather than its legality. Ultimately as it seems to me, I can only consider these particular matters in so far as they suggest that Council's decision was unreasonable in the sense explained in the passage from Halsbury or was reached on the basis of irrelevant considerations.

7. The applicants' solicitors furnished further and better particulars but no reference was made to them in the course of the hearing. Mr Radford who appeared for the applicants agreed that his clients' case was to be found articulated in the declaration application itself and in the submissions which he put. Accordingly I will be making no reference to the further and better particulars.

8. Mr Radford on behalf of the applicants submitted that since the balance of North Road had been sealed at the expense of the general public, rather than with the use of a special rate scheme, it was an improper use of Council's discretion under Section 163 of the Local Government Act.

9. The relevant sections of North Road were previously within the municipal area of the former Cranbourne City Council. With the reorganisation of municipal government in Victoria in 1994, Langwarrin was severed from the balance of the City of Cranbourne which became part of the City of Casey (which municipality was the successor in law to the Cranbourne City Council) and was attached to the Frankston City Council. Prior to this reorganisation Cranbourne City Council had used public funds to seal other parts of North Road. Moreover, it is said and not distinctly denied, that funds had been set aside to seal this part of North Road but were subsequently diverted to the erection of traffic lights elsewhere in the area. Mr Radford referred to the Local Government Act 1989 Section 7(h) which provides as an objective for a council "to raise funds for local purposes by the equitable imposition of rates and charges and by obtaining borrowings and grants ...". Mr Radford also referred to Section 185AB of the Local Government Act which requires the Tribunal in an application for a declaration under "S.185A" to have regard to a planning scheme adopted but not approved by the Minister. The reference he submitted to Section 185A was an error and should be to Section 185AA. This appears to be correct in so far as Section 185A is not concerned with declarations at all.

10. Mr Radford submitted that his clients had not had a fair hearing. He noted that whilst his clients had made submissions to Council in December, they were "informed that a further opportunity would be created in late January at a date to be arranged for them to address their concerns. On that occasion one Councillor only attended. Council by its officers used the occasion to make certain information available to the applicants concerning Council's development contributions plans for the area" Mr Radford also observed that the Council which adopted the special rate scheme on 10 April 2000 consisted of seven Councillors, only two of whom were members of the Council of seven which heard the residents submissions in person on 6 December 1999. The applicants it was said, sought an adjournment to enable them to make further submissions to the new Councillors but that was refused.

11. Next Mr Radford submitted that Council "ignored the Frankston City Council Baxter-Langwarrin Development Contribution Plan (1999) and material parts as to roads categorisation and proportion of costs - having said the DCP is relevant at its January 2000 meeting". As I understand it the passages which Mr Radford relied upon from the Development Contributions Plan and which he says Council ignored are as follows: they relate to apportionment of costs of roads and appear at Paragraph 2.1.3. The document states

* relevant authorities contribute to appropriate projects (eg. VicRoads for declared arterial roads);

* abutting properties contribute the cost equivalent to a common standard, eg. properties on a collector road contribute $200,000/km being the equivalent of a local street;

* Council is liable for a proportion of the remainder of the project based on the number of developed blocks to the projected total number of subdivided lots;

Further in recognising the existence of alternative funding sources, various responsibilities for road works and the fact that future development will in part contribute to road works:

* no costs have been apportioned for declared arterial roads as Council does not have responsibility for such roads;

* future development will be liable for 28% of the costs associated with other arterial roads (ie. the proportional amount new development is expected to contribute to the construction of such works);

* future development will be liable for 50% of the costs associated with all other road and transport costs (ie, the proportional amount new development is expected to contribute to the construction of such works).

The difference between the various arterial roads and all other road, reflects the fact that the arterial roads serve more than the declared DCP area and much of the works associated with the roads can be attributed to demand generated outside the DCP area. Conversely, local demand will primarily be responsible for the need to provide collector roads and the like."

12. As to ground (e), Mr Radford submitted that Council had disregarded residents' submissions and considered inappropriate material. Once again, he referred to the Development Contributions Plan. As I understand it the reference being to the same passage as we have already quoted. He referred to the arrangements made with the developer of the Leisureland Estate under Section 173 of the Planning and Environment Act which arrangements were entered into by Council without any notice to the residents. He referred to Cranbourne Council's intention to fund the sealing of North Road from public funds without a special rate scheme, submitting that Frankston City Council ignored all these matters.

13. Mr Radford said Frankston had been guided by irrelevant considerations. He noted that both the reports furnished to the Councillors and the Section 173 agreement with the Leisureland developer appeared to assume that Cranbourne City Council had determined to levy a special rate scheme for the construction of this part of North Road. A consideration of the available Council minutes from Cranbourne showed that whilst this course had been considered, it had been deferred to the following year and no final commitment had been made to carry out such a scheme.

14. As to ground (g) Mr Radford relied upon the same matters as he referred to in support of ground (e).

15. As to ground (h) Mr Radford submitted that Council failed to make a distinction between funding for private and Government roads as it should have done. It ignored the Cranbourne Council's Development and Contribution Policy published in 1987 and revised in 1994 which he said classified North Road as an arterial road. He referred once again to the passage already quoted from the Baxter-Langwarrin Development Contribution Plan. He observed that according to that policy no more than $200,000/km should have been sought from the land owners.

16. As to ground (i) Mr Radford submitted that the works were unnecessary, the present volume of traffic on the relevant section of North Road was 800 to 900 vehicles per day, it would rise to 3,000 per day until approximately 2011. According to Mr Radford:

"There has been no request from any North Road resident in this sector for the improvement as sought to be provided.

The pressure created in 1995 came from but occasional users - the Southern Light Christian Community then using premises in the Leisureland Estate (and now following a VCAT planning decision fairly recently, no longer able to use it).

This unmade part of North Road is part and parcel of the charm of the area and the road and the vegetation are part of landscape interests sought to be maintained (it was thought through relevant planning controls)."

17. The works were premature in Mr Radford's submission. He referred to the same matters as with respect to the previous ground.

18. As to ground (k) Mr Radford relied upon the matters which he urged in Proceeding 2000/34964.

19. He then returned to ground (c) the contention that the special charge is inequitable. He submitted:

"That the other sectors of North Road between Centre Road and McClelland Drive had been erected - first from Centre Road west to Aldershot Road in 1991-2 and then in 1994-5 from there in stages to McClelland Drive - on each occasion wholly with public funds without resort to any contributory scheme.

Further, there has been no demand, let alone for a contributory scheme from any of the relevant proprietors whose land adjoins the present section of North Road.

Further, the characterisation of North Road under the former Cranbourne Road as an arterial road has been carried into Council's own documents particularly the Baxter-Langwarrin Development Contributions Plan."

"There are ample grounds for following the same principles in relation to the other sections and it is wholly inequitable for it to otherwise proceed when even Council's own documents conceded that the bulk of the users of at least this sector of North Road anyway will be persons from way outside the area.

There is no sound basis that it is an equitable rate under S.7(h) of the LGA."

20. Mr Radford said that despite the provisions of Section 223 of the Local Government Act which applied to the personal submissions which were made by the applicant to Council on 6 December, no reasons for Council's decision in accordance with Section 223 have been given.

21. He relied generally upon all of these foregoing matters to contend that "the imposition of the special charge is an improper use of the discretion conferred on the Council under S.163".

22. Mr Radford provided particulars to show that most of his clients became owners of their land prior to the commencement of the Local Government Act in 1990. At that time the maximum liability for street construction charges which could be levied upon a land owner whose land abutted a Government road was half the cost of kerbing, channelling and footpaths. There was no ability under the Local Government Act 1958 to require such an owner to contribute to the cost of the construction of the road pavement of a Government road. He referred to evidence from Mr and Mrs Koning that when they purchased their property they were aware that the new Local Government Act coming into force in 1990 now permitted the levy of road construction charges on the owners of land abutting Government roads. They enquired of officers of the Council, the City of Cranbourne whether they were at risk of street construction charges for North Road and were assured that this road would be constructed at public expense.

23. Mr Lucas on behalf of the Council submitted:

"The applicants have a high hurdle to establish that a council has acted unreasonably. The applicants were attacking the declaration must establish that the Council acted beyond power or was unreasonable."

24. He submitted by reference to authorities such as the Wednesbury decision that the policy and equity of taxation was a matter for determination by Council and not by a court or tribunal on some form of judicial review. The onus in Mr Lucas' submission was on the applicants to show that the Council has acted unreasonably or beyond power or taking into account irrelevant consideration. The applicants could not demonstrate precisely what it was that motivated the Councillors to make their decision.

25. Mr Lucas ultimately conceded that no reasons were given in accordance with Section 223 of the Local Government Act but submitted nevertheless that this fact did not invalidate the Council's decision.

26. He submitted that since Council had perpetual succession by virtue of Section 5(2)(a) of the Local Government Act 1989 the difference in composition of Council between its meeting on 6 December and the meeting on 10 April was of no significance. The oral submissions which were made on the 6th of December had been recorded by Mr Pritchett, an officer of the Council and were placed by him before the Councillors who met and made their decision on 10 April.

27. Mr Lucas submitted that reasons for Council's decision had never been sought and they could have been sought under the Administrative Law Act 1978 or Section 45(1) of the Victorian Civil and Administrative Tribunal Act 1998.

28. In my view there is a variety of approaches which a Council could take to power to levy a special charge for road construction on a Government road. Mr Radford's submission in effect favoured a perpetuation of the distinction which existed under the Local Government Act 1958 between Government roads and private streets, at least persons who purchased their land abutting Government roads and had done so under the old regime established by the 1958 Act with an expectation that this would continue. I do not express a view as to whether such an approach would be regarded as reasonable and proper. In Ponsford v Shire of Mornington (unreported 30 May 1994) a Tribunal consisting of Ms Jane Monk and Mr Sharkey set aside a special charge scheme which drew a distinction as between rated owners depending on whether their properties abutted a Government road or a private street. In the Tribunal's view the enactment of the 1989 Act abolished the distinction between private streets and Government roads for the purposes of street construction charges and it was wrong to seek to perpetuate that distinction. In Walters v Manningham City Council (1999) 2 VPR 276, 285-6 a Tribunal consisting of Mr Lyons and myself expressed some doubt as to the correctness of Ponsford's case. What I have said so far however shows that it is less than self evident that any approach which fails to perpetuate some form of distinction between Government roads and private streets is unreasonable or the product of irrelevant consideration.

29. It is now ten years since the Local Government Act 1989 came into force. Whatever argument there might have been for a transitional period as to street construction charges must now yield to the view that the transitional period has come and gone. If streets constituted by Government roads are given what one might describe as the "1958" treatment upon the basis that a majority of residents or perhaps even a significant minority bought their properties before 1990 for any extended period (for instance a decade or more) this transitional period could create its own inequities. Whatever point is chosen to make the change to reflect the law under the 1989 Act will be perceived as creating some unfairness because over a relatively short period some landowners will be treated differently by the application of the new regime from those who are dealt with under the old regime a short time previous. It cannot be regarded as "perverse" or "devoid of reason" or a decision that no reasonable person could make for Frankston City Council to take the view that the regime established by the 1989 Act should be put into force, namely a regime in which road construction charges may be levied on landowners abutting both Government roads and private streets.

30. A further point made by the Council's Chief Executive Officer Mr Edwards, was that there is an inherent inequity between requiring landowners across the municipality to fund the entirety of the construction of this section of North Road when many of those landowners or their predecessors have had to pay for the construction of their own streets.

31. The equity of these matters may be argued in various directions. I do not believe that what this Council has done is "unreasonable" in the necessary legal sense

32. Nor can it be said that the Council is acting unreasonably in that sense in disregarding what was done by the former Cranbourne City Council. The material from Cranbourne placed before me was not necessarily complete. What it suggested was that Cranbourne had publicly funded some parts of North Road but was at the very least considering applying a special charge scheme to the residents of this portion of North Road. Some portions of North Road were constructed before the commencement of the Local Government Act 1989. Accordingly the lack of contribution to those constructions was dictated by the state of the law rather than by any policy or discretionary decision by Cranbourne. In any event it appears that residents of some parts of North Road were required to make a contribution to kerbing and channelling of another part of North Road.

33. I accept Mr Lucas' submission that in the circumstances it is impossible to determine precisely what it was that motivated the Councillors to vote as they did on the 10th of April. It is clear however that the relevant materials including a summary of the submissions that had been made on the 6th of December and the text of the written submissions that had previously been made by residents opposing the special charge scheme were before the Councillors. There is no reason to think that the Councillors did not read and consider that material. Moreover the premise in a large part of Mr Radford's submissions, namely that the Councillors were to be regarded as in like case with a jury - knowing nothing save for what was formally placed before them can scarcely be supported. Mr Radford submitted that this interpretation of events was consistent with his own experience on Council committees. The authorities on special rate schemes lay stress upon the importance of the local knowledge which councillors bring to the task of identifying the existence or otherwise of special benefit. See for instance the Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305, 313 per Barwick CJ. The assumption underlying commending these sorts of decisions to councils is that the councillors will bring all their knowledge as concerned citizens of their municipalities to bear in making their decision together with their local knowledge. It is not to be thought that they are blank sheets upon whom the council officers write what they will.

34. The matters which Mr Radford submits Council failed to take account of were placed before the Councillors by Mr Radford's own clients as objectors. For instance a letter from Mr and Mrs Koning dated the 8th of November 1999 refers to the assurance they say they were given by Cranbourne Council as to public funding for the construction of North Road; a letter dated 17 November 1999 from Mr Fulton and Johnlind Nominees Pty Ltd refers to the public funding of the construction of other parts of North Road and says that the benefit of construction is to the wider community and would create "a commuter road" and so on.

35. Once again it is not to be supposed merely because the Baxter-Langwarrin Development Contribution Plan was not highlighted in the officer's report that the provisions contained therein relied upon by Mr Radford were not present to the minds of the Councillors. Certainly many if not most of the objectors in their written submissions drew attention to the role which North Road fulfilled as a collector or arterial road rather than a purely local street, suggesting that in so far as it bestowed benefits upon the entire municipality it should be funded by the entire municipality rather than by the landowners abutting it.

36. To understand the effect of the arguments raised relative to Section 223 of the Local Government Act it is necessary to consider the terms of the Section itself. Section 163A says:

"A person may make a submission under Section 223 in relation to a council's proposal to make a declaration under Section 163 [that includes a declaration of a special charge in the present circumstances]."

37. Section 223 provides for council to publish a public notice stating that it will receive submissions in relation to a particular subject matter. The section then provides for written submissions and in paragraph (c) of Sub-section (1) states:

"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."

38. I was initially impressed with the thought that this section gave individual objectors a right to make a presentation "in person" to the Councillors who would make the decision relative to which submissions were being made. Certainly absent a specific statutory authority or consent of parties a court or tribunal differently constituted from the one which conducted the hearing could not decide a proceeding. Mr Lucas however submitted that Section 86of the Local Government Act 1989 would permit an entire council which had received written submissions to delegate to a committee the task of hearing objectors in person. That seems to be within the authority of delegation bestowed by Section86. Mr Radford observed that there had in fact been no delegation here, what there had been was an almost complete lack of continuity in membership of the Council between the 6th of December 1999 when the objectors appeared in person and the 10th of April 2000 when Council made its decision. Nevertheless the existence of the power of delegation whether exercised in this circumstance or not destroys any suggestion that Section 223 was intended to give an absolute right to objectors to have their question determined by the very same people before whom the objectors appeared in person. Once that is accepted the general principles that natural justice may be afforded in most administrative contexts simply by submissions being considered "on the papers" and that councils and like bodies have perpetual succession take over, there is therefore no ground to invalidate this decision based upon the lack of continuity of membership of Council between the meeting of 6 December 1999 and 10 April 2000 nor is there any basis for criticism of the meeting held subsequent to the December Council meeting attended by a single Councillor. The resolution on the 6th of December was to hold a public meeting not a Council meeting. In any event there was nothing which obliged the council to hold any particular form of meeting at all.

39. I was referred to a decision of Mrs Bruce, Deputy President, in the matter Leigh and Bignell v Banyule City Council (1999/68303 decision given 2 October 2000). Mrs Bruce declared invalid a special rate imposed in the West Heidelberg Industrial Estate on a number of grounds. One of those grounds was that

"The Council did not give consideration to the submissions received under Section 223 of the Local Government Act 1989 as required by the section prior to declaring the special rate" (see paragraph 377 of the reasons)

40. Section 223(1)(b) provides for Council to call for written submissions about 14 days after publication of the public notice of the relevant meeting and paragraph (e) requires the Tribunal to "take into consideration all the submissions made under this Section". Mrs Bruce found that the written submissions received were placed in a file and "at the Council meeting on 8 February 1999, the file with submissions on it was present and available to the Councillors to look at if they wished to do so. No one did". What the Councillors did apparently have resort to was a summary of those submissions. At paragraph 91 Mrs Bruce said:

"While summarising a document may be an administrative function if carried out with great accuracy, reflecting the meaning of what is put by way of submission in a manner that neither diminishes it or exaggerates it, it is difficult in summarising a document with several points in it to avoid making judgment about what it means in general terms. If the officer sets out an interpretation of the document being summarised in a manner that is in fact a "consideration" with substance, rather than a fair and exact rendering of its substance, the summary will detract from Council's consideration of the submission under Section 223. It cannot consider a submission that is not fairly placed before it. That is not to say that a submission may not be adequately summarised for presentation to the Council under Section 223; but the degree to which the officer interprets the original to produce what is thought to be an adequate representation of it may lead Council's consideration of the submission open to criticism."

41. Mrs Bruce then considered the summary against the underlying material and concluded at paragraph 179:

"The summary has omitted to mention facts and matters that were neither insignificant or insubstantial, including arguments and opinions that the submitters wish to raise the summary fails the test in Jeffs' case of adequately disclosing the submissions to the Council."

42. Mrs Bruce considered a number of decisions including the decision of the Full Federal Court in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451; the decision of the Judicial Committee of the Privy Council in Jeffs v New Zealand Dairy Production Marketing Board [1967] 1 AC 551; the decision of the High Court of Australia in Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208; Re Macquarie University Ex Parte Ong (1989) 17 NSWLR 113 and Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 26. Those authorities established in general that an adequate summary of submissions may be a proper vehicle for a decision-maker to resort to in considering submission placed before him, her or it but if the alleged summary is incomplete, lacking in impartiality or fails adequately to disclose the substance of the submission, the process will be flawed. Mrs Bruce noted that the power of a Council to delegate functions with respect to Section 223 to officers (Section 223(3)) extended only to "administrative procedures necessary to enable the council to carry out its functions under this Section" and the general power of delegation under Section 98(1) excluded "any power, duty or function of a council under Section 223".

43. What then does this mean for the validity of the procedures adopted in the present case? First, Mrs Bruce appeared to contemplate that the preparation of a summary of submission could be regarded, so long as the summary was accurate, as being an administrative function. It could therefore properly be the subject of an authorisation under Section 223(3) since nobody has suggested that the summary of the proceedings on the 6th of December prepared by Mr Pritchett was other than accurate. Secondly the uncontested evidence from the Council witnesses including the Chief Executive Mr Edwards, was that the supporting material provided by way of annexure to the officer's report to each Councillor included in addition to the Pritchett summary, copies of all the written submissions. There is no reason to consider therefore in accordance with the provisions of Section 223 Council has not considered all the submissions. Moreover whilst Section 98 (the general power of delegation to officers) contemplates that there be written instruments, and a register of instruments of delegation is to be kept by the chief executive officer, Section 223(3) merely provides that Council "may authorise" the appropriate members of Council staff to carry out administrative procedures, prescribing no particular formalities to be carried out. The premise upon which Leigh and Bignell's case and the authorities to which it refers were decided is that a decision-maker is assumed to have considered the materials which were placed before him, her or it. Nothing in Leigh and Bignell's case points to a different conclusion to the one I have already reached.

44. Sub-paragraph (e) of Section 223(1) requires Council to take into consideration the submissions which it receives and "must notify in writing every person who has lodged a separate submission ... of the decision and the reasons for the decision". As noted previously Mr Lucas ultimately conceded that no reasons for the decision had been given.

45. I reject Mr Lucas' submission that it was competent for the objectors simply to request reasons pursuant to Section 45 of the Victorian Civil and Administrative Tribunal Act 1998, the ability to request those reasons depends upon a person having an entitlement to seek a review of a decision by the Tribunal. The application under Section 185AA is not a review proceeding. The only review proceeding is the one under Section 185. Clause 2 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act defines that section as a "planning enactment". Clause 53 of the schedule provides that Section 45 of the Act does not apply "to a decision under a planning enactment". The existence or otherwise of an entitlement to reasons under Section 8 of the Administrative Law Act 1978 depends upon whether the Council in the circumstances is to be regarded as falling within the definition of "Tribunal" in the Administrative Law Act. It is unnecessary to consider that question. After all if the objectors, applicants in this proceeding have an entitlement to reasons under the Local Government Act why need they seek out some further entitlement in another statute?

46. The question then becomes whether the admitted breach of Section 223 arising by reason of the failure to furnish the reasons is sufficient to invalidate the declaration of the special charge. Mr Radford submitted that the question as to whether breach of the obligation to give reasons under Section 223 invalidated the declaration of the special charge depended upon the distinction between whether this element of the section is to be regarded as mandatory or directory. He referred me to the classic exposition of this distinction to be found in a judgment of Sir Oliver Gillard in SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229, 237-8 which analysis was specifically approved by Stephen J and the other members of the High Court of Australia in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242. Mr Lucas however submitted that the more recent decision of the High Court of Australia in Project Blue Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841 required a different approach. In a joint judgment McHugh, Gummow, Kirby and Hayne JJ said

"A better task for determining the issue of validity [of an act done in breach of a statutory provision] is to ask whether it was a purpose of the legislation that any act done in breach of the provision should be invalid." [1998] HCA 28; (1998) 72 ALJR 841, 860 at Paragraph [93]

47. In my view the application of this test shows clearly that there was no intention to invalidate the decision of 10 April 2000. First, there is no time limit placed upon the obligation to furnish reasons. No doubt the law would imply that the reasons are to be furnished within a reasonable time. The concept of what is reasonable is intrinsically flexible and may vary from occasion to occasion having regard to the complexity of the matter in question, time of year etc. If it were correct that a breach of this sort would invalidate a decision of Council, the effect would be that at some indeterminate time (after a reasonable period had elapsed) the decision initially valid and efficacious which may have been acted upon by Council or third parties would become invalid. Section 117(3) of the Victorian Civil and Administrative Tribunal Act 1998 obliges this Tribunal to furnish reasons within 45 days of a request for written reasons which may be made within 14 days after the giving of oral reasons (see Section 117(2)). Sub-section (4) empowers the President to extend the period of 45 days. If however reasons are not given within the requisite period perhaps because of default by the Tribunal Member or perhaps because of some misfortune such as illness, even in the absence of an extension by the President, it cannot be supposed that the Tribunal's decision is retrospectively invalidated, nor would reasons furnished outside the statutory period be "void". These considerations lead me to the view that applying the revised test postulated by the High Court of Australia in the Project Blue case, the failure to give reasons in accordance with Section 223 of the Local Government Act does not invalidate Council's decision.

48. In my view therefore it cannot be said that Council has acted unreasonably in the necessary legal sense nor has it been established that Council would move to make its decision by any irrelevant consideration, therefore this application fails.

49. At the outset of the hearing on the application of Mr Radford we granted leave for Mr John and Mrs Linda Fulton of 450 North Road to be added as applicants together with Mr Michael Graeme Hodges as registered proprietor of Lot 2, 451 North Road.