s 185 application was therefore adjourned with the expectation that it would be dismissed if the s 185AA application was successful, or re-listed at a later date if the s 185AA application was unsuccessful.

1. On or about 4 April 2006, after some prior consultation by way of correspondence, a questionnaire and public meeting, the Council resolved its intention to declare a Special Charge Scheme, and provided a Notice and concept plan of the proposed works to affected land owners.
2. The Special Charge Scheme relates to the construction and sealing of gravel roads in Fairhaven and associated drainage works. The roads proposed to be sealed are Yarringa Road, Yandanah Road, Banool Road, Cowan Avenue, Allinga Lane, Lialeeta Road, Werona Road and Biralee Road.
3. The Scheme area is divided into seven (7) sub-areas, with varying contributions based upon whether the sub-area properties receive an amenity benefit, an access benefit, a drainage benefit, or a combination of these. The total estimated costs of the works is $2,169,749 with 90.7% (or $1,943,969) apportioned to land owners and the balance apportioned to the Council.
4. It appears from the Council report of 1 August 2006 that there were 312 affected properties. There were 77 submissions, incorporating 71 individual property objections, and two properties were excluded from the Scheme following the objection process. A Council sub-committee considered oral submissions from 13 objectors on 9 June 2006. On 1 August 2006, the Council accepted a sub-committee recommendation and formally declared the Special Charge Scheme.
5. Jacra Nominees Pty Ltd lodged a s 185 application on 9 August 2006, and the Tuddenham Group followed on 4 September 2006. All four grounds available for review under s 185(2)(b) were placed in issue - ie the absence of a special benefit, an unreasonable apportionment, inconsistency with planning policy and (in the alternative) that the works were unnecessary, unreasonable, excessive, unsuitable or costly having regard to the locality and probable use of the road and drainage.

THE SECTION 185AA APPLICATION**

1. Section 185(1) allows a person to apply to this Tribunal to review a decision of a Council imposing a special charge on that person.
2. Section 185AA provides as follows:

(1) A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning the validity of a decision referred to in s 185(1).

(2) On an application under sub-section (1) the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member of the Tribunal.

1. Although for convenience, Deputy President Dwyer and Senior Member Sharkey sat together at the hearing of both the s 185AA and s 185 applications, the s 185AA application has been determined solely by DP Dwyer.

1. The initial s 185AA application contained three grounds. On 30 April 2007, the Tuddenham Group amended its grounds to comprise 12 grounds, although there is a degree of overlap between several grounds. Ultimately, the grounds contend that the Special Charge Scheme is invalid by reason of one or more of the following (as paraphrased by me):
   • (1) Some or all of the components of the roads have been previously constructed for the purpose of s 163(7) of the Local Government Act 1989 or Section 12(1) of the Local Government (Consequential Provisions) Act 1989 so as to preclude the Council from seeking a further contribution from land owners[2].
   • (2) The Council failed to take into account relevant considerations required to be considered by sub-sections 163(7) and (8) of the Local Government Act 1989, namely whether or not any road or component had been previously constructed to the satisfaction of the Council to the extent the Council was precluded from recovering further costs by way of a Special Charge Scheme.[3]
   • (3) The Council failed to comply with s 163A and 223 of the Local Government Act 1989 in that:
     • (a) the Council sub-committee hearing objections was not properly empowered to do so; or
     • (b) neither the Council nor the purported sub-committee properly took the written objections into account and/or took into account irrelevant considerations.[4]
   • (4) The Council sought to depart from a previously adopted policy - the Infrastructure Special Rate or Charge Scheme policy - without affording affected objectors a specific right to be heard on that issue[5].
   • (5) The proposed Special Charge Scheme does not comply with ss 163(2A), (2B) and (2C) of the Local Government Act 1989 and the Special Rates and Charges Ministerial Guidelines, September 2004 in that:

(a) the allocation of 90% of the Yarringa Road access costs to be paid by the remaining affected land owners is excessive, unreasonable and unfair[6]; and

(b) the allocation of 10% of the total costs as a Council contribution is inadequate[7].

(6) The decision to declare the Special Charge Scheme is so unreasonable that no Council acting reasonably could have reached such a decision under the Wednesbury test[8].

1. I will deal with the matter by reference to these six grounds, as a means of covering all of the Tuddenham Group's amended statement of grounds. Before doing so, it is worth noting that the applicant provided the Tribunal with extensive material comprising:
   • written submissions;
   • a significant number of court judgments and Tribunal decisions;
   • affidavits and exhibits by five lay witnesses, four of whom were called to give evidence;
   • expert reports from three witnesses, all of whom were called to give evidence[9];
   • three bound folders of appendices and background documents, and a substantial number of ancillary documents, all of which are retained on the Tribunal file.
2. It is impossible, in the context of this decision, to refer to all of the material before me although it has all been reviewed and taken into account as a basis for my decision. It should not however be taken from this that I found all of the material necessarily helpful, relevant or determinative.
3. In contrast, the Council's submissions and evidence were what I might describe as "thin". The Council became aware of the applicant's contentions in October 2006 when the s. 185AA application was lodged. To be fair, many of the material facts supporting these contentions only became apparent when the applicant filed its amended statement of grounds and affidavit material in mid-April 2007. However, the Council appears to have largely dismissed the applicant's contentions as being unfounded. It would have been of assistance to the Tribunal (and presumably the applicants) if the Council had circulated a statement of evidence by a relevant council officer prior to the hearing, better explaining its reasons for believing the applicant's contentions to be unfounded, rather than belatedly attempting to deal with matters 'on the run' in the course of the hearing.

1. The Tuddenham Group contends that some or all of the components of the roads have been previously constructed for the purpose of s 163(7) of the Local Government Act 1989 or s 12(1) of the Local Government (Consequential Provisions) Act 1989 so as to preclude the Council from seeking a further contribution from landowners.

1. Section 163(7) of the Local Government Act 1989 provides:

If a private street (within the meaning of s 575(1) of the Local Government Act 1958) is constructed wholly or partly at the cost of the owners or occupiers of any land which abuts or fronts the street, the Council may not at any future time recover any further costs in respect of the construction of a component of the private street if that component has been previously constructed to the satisfaction of the Council from the owners or occupiers of the land under this section by way of a special rate or special charge.

1. Section 12(1) of the Local Government (Consequential Provisions) Act 1989 provides:

If a private street (within the meaning of s 575(1) of the Local Government Act 1958) is constructed wholly or partly at the cost of the owners of any land which abuts or fronts this street, the Council may not at any future time recover any further costs in respect of the construction of a component of the private street if that component has been previously constructed to the satisfaction that the Council from the owners of the land under s 163 or Division 10 of Part XIX or Part XLII of the Local Government Act 1958.

1. Mr O'Brien for the applicant focused his case on what might be said to be the first three elements of these provisions, namely:
   • whether the Fairhaven Roads are private streets;
   • whether the Fairhaven Roads (or some of them) have been previously constructed wholly or partly at the cost of the abutting owners; and
   • whether any prior construction was to the satisfaction of the Council.

To the extent relevant, these matters are discussed in further detail below. It was the applicant's contention that, if the roads could be shown to have been previously constructed with a contribution from landowners, and to the implicit satisfaction of the Council, then this was sufficient to invoke the protection of the provisions[10].

1. Mr O'Brien did not initially deal with what might be said to be a fourth element of these provisions, namely whether any "previous construction" was "under this section by way of a special rate or special charge"[11] or "under s 163 or Division 10 of Part XIX or Part XLII of the Local Government Act 1958"[12]. When questioned, Mr O'Brien responded that the reference in s 163(7) to the words "under this section by way of a special rate or special charge" did not refer to a prior statutory scheme. He argued that the words simply related to any 'second' attempt by the Council to seek a contribution (which the provision sought to prevent) and was not a separate element to be satisfied. In Mr O'Brien's view, it did not have to be demonstrated that the prior contribution or previous construction arose under a statutory scheme by reference to those specified provisions.
2. I do not accept the applicant's argument on this issue. Mr O'Brien's contention would effectively have s 163(7) of the Local Government Act 1989 read to mean that:

The Council may not recover any further costs ... under this section by way of a special charge ... if the road has been previously constructed to the satisfaction of the Council.

• The phrases do not appear in the sequence implicitly contended for by Mr O'Brien. If paraphrased in the same way in the order in which the phrases actually appear in s 163(7), the section provides that:

The council may not recover any further costs ... if the road has been previously constructed to the satisfaction of the council ... under this section by way of a special charge.

This has a quite different meaning to that espoused by Mr O'Brien.

• If Mr O'Brien's interpretation of s 163(7) is correct, it would not make any sense when applied to the corresponding s 12(1) of the Local Government (Consequential Provisions) Act 1989. The Council could not now recover any further costs under the specified provisions of the Local Government Act 1958, as the provisions referred to in that

sub-section have been repealed.

• On Mr O'Brien's construction of s 163(7), s 12(1) of the Local Government (Consequential Provisions) Act 1989 would be unnecessary and redundant, as s 163(7) alone would suffice and there would be no difference in practical application as between the two provisions. However, s 12(1) is one of the very few provisions retained in the Local Government (Consequential Provisions) Act 1989 and deliberately still in force, and must be given some statutory intent.

1. The better, and I might add more commonly accepted, interpretation of these provisions is that they protect a land own from having to pay twice for construction (or a relevant component of construction) where prior construction has taken place under a relevant statutory scheme. Section 163(7) of the Local Government Act 1989 protects a land owner from further contribution where a contribution to construction (or a relevant component of construction) has already been made "under this section" - i.e. by way of a previous special rate or charge under s 163. Section 12(1) of the Local Government (Consequential Provisions) Act 1989 provides a similar protection if a contribution to prior construction had already been made under specific provisions of the now repealed Local Government Act 1958 - i.e. by way of a private street construction scheme under that Act. The two provisions in tandem provide a continuing protection from double-dipping by a council in relation to both the present and corresponding former statutory charge schemes for private street construction.
2. To the extent my views might arguably differ from the comments of Senior Member Young in Pedler v Brimbank City Council[13], I respectfully disagree with his comments. It is clear from a reading of Pedler that Senior Member Young only looked at s 163(7) in isolation and was not referred to s 12(1) of the Local Government (Consequential Provisions) Act 1989 and, in any event, he did not purport to finally resolve this issue in that case[14]. Although I do not believe, contrary to Mr O'Brien's argument, that there is any real ambiguity in the provisions, I am heartened that my interpretation is also supported in Hansard as a reflection of Parliamentary intent[15].
3. The two provisions (i.e. s 63(7) of the Local Government Act 1989 and s 12(1) of the Local Government (Consequential Provisions) Act 1989) therefore do not provide a general protection for any prior construction that may have included a landowner contribution to costs - only a protection arising from a prior statutory charge scheme. This misconception on the part of the Tuddenham Group underscores much of the evidence and submissions led on their behalf.

1. The applicant contended that the onus of proving that the Fairhaven Roads had not been previously constructed rested with the Council. Although the argument was put by Mr O'Brien based on his broader interpretation of s 163(7), his argument on the onus of proof still applies to the narrower interpretation I have preferred - i.e. does the Council bear the onus of proving that the Fairhaven Roads have not been previously constructed under a statutory charge scheme. The applicant's contention was that, assuming the Council had such an onus, it had not discharged the onus, and the special charge scheme was therefore invalid.
2. The applicant referred to a number of authorities, including Coy v City of Sandringham[16], R v City of Doncaster & Templestowe; ex parte Mayor[17], Slapjums v City of Knox (No. 1)[18], Fitzpatrick v City of Warrnambool[19], Toorak Village Development Pty Ltd v City of Prahran[20], and Masuda Pty Ltd v Casey City Council[21].
3. In his written submissions[22], Mr O'Brien relied primarily on Coy and Toorak Village to support a proposition that "it has long been the rule in interpreting the meaning of s 575(1) of the Local Government Act 1958 that the onus is on the Council to establish that the streets have not been previously constructed as private streets". Coy was however decided before the 1958 Act, although its continuing relevance is discussed below, and Toorak Village was a general rating case arising under a different statutory framework which cannot be said to provide good authority for an onus (if any) in a special charge scheme[23].
4. Moreover, of the other cases, Doncaster, Slapjums and Fitzpatrick all arose under the then Local Government Act 1958 when that Act contained s 600B as follows:

In any proceedings arising out of or in relation to any scheme under this Division, including proceedings upon the hearing of objections, the burden of establishing that the street proposed to be constructed is a private street or is a street which may be constructed pursuant to this Division shall (in the case of an objection on a ground referred to in paragraph (a) of sub-section (2) of s 578) be upon the council but otherwise the burden of establishing that the scheme or any part of the scheme is invalid or of establishing any such objection shall be upon the party or person who so alleges.

In Doncaster, Slapjums and Fitzpatrick therefore, there was a clear statutory onus of proof and the issue of onus was never in doubt. Those cases cannot be relied upon as establishing, in the absence of a provision similar to s 600B in the current Act, that such an onus exist on the council in the present case.

1. Mr O'Brien's more general argument was that the onus of proof existed at common law, and that s 600B had done no more than confirm what was then (and still is) the correct legal position. For this, he relied upon Coy where Martin J. reviewed some English authority and concluded:

In my opinion, the onus was on the Council of showing a prima facie case that Georgiana Street was a private street and that it had not previously been constructed as specified in s 575 [of the Local Government Act 1946][24].

1. Mr Bramham for the Council drew my attention to the other two judgments in Coy. Smith J. had stated that the question of onus was of some difficulty, and he declined to decide the matter in the absence of any argument before the court on the English authority considered by Martin J.[25] Lowe J. also expressly found it unnecessary to decide the question of onus, expressing some reservation in the absence of argument or further investigation, and noting differences in the English legislation[26]. Coy is therefore by no means conclusive on the issue of common law onus.
2. Somewhat bravely, Mr O'Brien attempted to argue that the broader legislative scheme for private street construction, embodied in the Local Government Act 1958 and its statutory predecessors (and including the statutory onus in s 600B of the 1958 Act) is somehow preserved in the present case, despite the repeal of the 1958 Act. His first argument was that s 163(7) of the Local Government Act 1989 refers to a private street "within the meaning of s 575(1) of the Local Government Act 1958" and this revives the whole context and practice of the provisions of the former Act including the statutory onus. The second argument was that the onus is preserved by s 17 of the Interpretation of Legislation Act 1984 on a similar basis (i.e. through the reference to the former s 575(1) in the current s 163(7)). I disagree with both arguments. Section 575(1) of the Local Government Act 1958 was a sub-section simply containing the definitions of a number of terms for the purpose of private street construction, including a definition of "private street". The reference to s 575(1) in s 163(7) of the Local Government Act 1989 is simply intended to pick up that definition. It cannot be said to revive any associated statutory rights that may have existed under the 1958 Act, including the benefit of the statutory onus. Even if there were some 'accrued rights' preserved following repeal of the Local Government Act 1958, no substantive rights to benefit from the statutory onus could be said to have crystallised in relation to the Fairhaven Roads. At most, there may have been the power to take advantage of the statutory onus if a statutory charge scheme had arisen under the 1958 Act whilst it was still in force[27].
3. Mr O'Brien's alternative and better argument was that "despite the repeal of the 1958 Act, it is presumed that the common law relating to matters such as proof, etc. remain".[28] This depends however on what the common law position is. I am in a similar position to the two judges in Coy who did not decide the issue, in that I have not ultimately been provided with sufficient authority or argument upon which to finally determine the question of onus in the applicant's favour. Moreover, even in Martin J.'s judgement in Coy, upon which Mr O'Brien relies, the 'onus' on the Council is only to provide a prima facie case - not necessarily more conclusive proof.
4. Mr O'Brien sought to distinguish the previous Tribunal decision in Masuda, where DP Bruce had also noted that the statutory onus in s 600B of the Local Government Act 1958 was a distinguishing factor to cases decided after repeal of that Act.[29] In Masuda, DP Bruce very much doubted that the old rule as to onus in general rating matters (ie in Toorak Village) had survived the conversion of the former right of appeal to the Country Court to an administrative remedy before this Tribunal and its predecessors. She also noted argument that the rule may have been overtaken by changes to the legislation as well.[30] DP Bruce then concluded:

There is in any event little room for "onus" arguments to operate when the parties have brought substantial amounts of evidence and evidentiary material before the Tribunal. In terms of an evidential burden, there is evidence to justify raising the issues. The issue is more a matter of weight to be accorded in deciding which evidence is to be preferred within the scope of the relevant considerations, than deciding whether an onus has been met by one side or the other.[31]

1. In the applicant's written submission, Mr O'Brien sought to distinguish Masuda on the basis of his argument under s 17 of the Interpretation of Legislation Act 1984 - i.e. a contention that "Parliament has clearly sought to preserve existing rights by the making of a provision seeking to pick up the meaning of the 1958 Act as opposed to merely re-enacting similar words from the 1958 Act in the 1989 Act"[32]. For the reasons stated earlier, I do not accept that argument.
2. However, there is perhaps a distinguishing factor in Masuda not raised by Mr O'Brien. Whilst Masuda comprised an application for declaratory relief under s 185AA of the Local Government Act 1989 (as here), a careful reading of Masuda discloses that the comments of DP Bruce on the question of onus related solely to the 'merits' proceeding also before her under s 185. Section 185 applications are applications for review that come within the review jurisdiction of the Tribunal. The comments of DP Bruce therefore accord with the common practice of this Tribunal that, in the absence of a statutory provision to the contrary, no burden or onus of proof in the curial sense exists in proceedings involving the exercise of the Tribunal's review jurisdiction[33].
3. An application for declaration under s 185AA of the Local Government Act 1989 arises in the original jurisdiction of the Tribunal rather than the review jurisdiction. Whilst s 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, the Tribunal is perhaps more reluctant to depart from established principles of evidence when exercising its original jurisdiction in determining legal rights in adversarial proceedings.
4. As indicated though, I am not persuaded by the applicant's arguments that there is a clear onus of proof that should be determinative in this matter. The declaratory relief sought under Ground 1 is a finding that the special charge scheme is invalid because the Fairhaven roads have been previously constructed. It is a determination of legal rights based ultimately upon a finding of jurisdictional fact. Despite the s 185AA proceeding arising in the original jurisdiction of the Tribunal, the comments of DP Bruce in Masuda therefore still have a certain resonance in matters of this type. A finding as to whether a road may have been previously constructed within the meaning of section 163(7) of the Local Government Act 1989 is more a matter of weight to be accorded in deciding which evidence is to be preferred within the scope of the relevant considerations, than deciding whether an onus has been met by one side or the other.
5. If I were minded to apply something akin to a principle of evidence or proof to matters of this type, it would be to the effect that there is a 'shifting burden' comprising the following elements:
   • the Council is exercising a power to impose a special charge (i.e. a pecuniary liability) upon landowners and must therefore satisfy itself that it has met the statutory pre-conditions to the exercise of that power[34]. The Council cannot merely assert that these pre-conditions are met. It must undertake a reasonable level of investigation, for the purposes of s 163(7), to satisfy itself that a road in question is a 'private street' and that the street (or a relevant component) has not been previously constructed under a prior statutory charge scheme[35]. What is a reasonable level of investigation may depend on the individual circumstances of a matter in terms of the Council records available, whether a presumption of regularity is appropriate and/or whether the matter is proved by 'negative ascertainment'[36], an engineering assessment of the road, or other surrounding circumstances.
   • if the Council has acted reasonably in its initial investigations and has established to its satisfaction that the road is a private street which has not been previously constructed under a special charge scheme, a land owner still claiming the protection of s 163(7) must provide at least a reasonable level of evidence that the road has been previously constructed under a prior statutory charge scheme for the purpose of that section. The landowner cannot merely assert that the road has been previously constructed. What is a reasonable level of evidence may again depend on the individual circumstances of the matter in terms of the extent of material available or other surrounding circumstances.
   • if a landowner provides a reasonable level of evidence that the road has been previously constructed under a prior statutory charge scheme for the purpose of s 163(7), the Council should properly investigate that evidence in an endeavour to provide a more conclusive determination of the matter.
   • if the matter is not resolved and comes before the Tribunal for determination, the issue will be decided, on the balance of probabilities, as to whether the road has been previously constructed under a prior statutory charge scheme, having regard to the weight of material and evidence before it and the reasonableness of the investigations rather than on the basis of a formal onus of proof being met by one side or the other.

1. It was common ground that the Fairhaven Roads were all "private streets" within the meaning of s 575(1) of the Local Government Act 1958.
2. Despite requests from the applicant to do so, the Council did not provide any detailed information prior to the hearing on the issue of the initial formation or construction of the Fairhaven Roads. In response to a Tribunal order, the Council simply filed some Council minutes and reports for the period 1989-90 which it indicated comprised the "relevant documentation regarding the previous construction or works to the roads proposed to be sealed under the Special Charge Scheme". That material reveals that an area around Lialeeta Road (at the eastern edge of the area covered by the present Scheme) had been the subject of a formal drainage scheme in 1989-90. Mr Tuddenham is mentioned in some of those minutes and was presumably aware of the Scheme. Mr Bramham for the Council indicated that these drainage works, to the extent relevant, had led to the drainage component being excluded from the present Scheme for the Lialeeta Road owners, in conformity with s 163(7). This does not appear to be in dispute.
3. Mr Bramham called Mr Richard Bain, the Council's Special Projects officer responsible for the Special Charge Scheme, to give evidence on the extent of Council's initial investigations in relation to the Fairhaven Roads[37]. Mr Bain indicated that:
   • Historically, roads and drainage for Fairhaven had been considered within three catchments (the Ridge Road area, the Lialeeta Road area, and the area primarily covered by the present Scheme).
   • In 1998-99, when the first Special Charge Scheme for the Fairhaven Roads was mooted, most of the staff of the former Shire of Barrabool (ie the predecessor to the Council in the Fairhaven area) had moved on. He had located the engineering records held in cabinets, comprising transparencies and some paper files for the relevant catchments. In particular, this included the 1989-90 transparencies relevant to the drainage works in Lialeeta Road. He also located and reviewed files for the subsequent subdivision in the Forest Park and Timbarra Estates which have access via Yarringa Road, and have thus been included in the present Scheme as having an access benefit.
   • The transparencies from the late 1980's showed staged drainage works, but nothing else, and reflected the physical works evident from an engineering inspection of the area covered by the Scheme.
   • He did not investigate records prior to the 1980's, as the only works physically evident from the engineering assessment were from this period.
   • After the first Scheme was quashed, he relied upon his earlier investigations when preparing the current Scheme.
4. Under cross-examination, Mr Bain indicated that he had not sought to ascertain the means of initial "construction" of the Fairhaven Roads based on his engineering assessment and observations as to the original "formation" of the roads. He had formed an engineering judgment that there had been no prior construction, as any evidence of formal construction would in his view have remained and been evident upon physical inspection.
5. Under cross-examination, Mr Bain conceded that he had not looked to determine whether there were any Council records prior to the 1980's - and in particular in the 1950's. He had not searched any Council minutes, rates books, correspondence, ledgers, property cards, road maintenance records, budgets or other municipal records for this period.
6. Mr O'Brien's specific questioning on the extent of investigations, by reference to particular records, arose presumably from comments in cases such as Doncaster, Slapjums and Fitzpatrick as to what might be an appropriate level of inquiry by a Council officer. As indicated, those cases were decided when a statutory onus existed under s 600B of the Local Government Act 1958 and there was then also a requirement, in s 600C(2A), that a municipal clerk must certify that the road had been previously constructed if the municipal clerk was unable to ascertain the issue with certainty from the municipal records[38]. The extent of investigation was therefore potentially of greater significance under the 1958 Act.
7. I consider that it would have been prudent for Mr Bain to have conducted at least a preliminary search to determine if there were records earlier than the 1980's relating to the Fairhaven Roads - particularly given the relatively short history of the roads since the 1940's or 1950's. I do not consider this search would comprise all of the types of records referred to by Mr O'Brien in his cross-examination of Mr Bain, nor would all of these records necessarily still exist given the standard of record keeping, the passage of time, and intervening Council amalgamations. It would in most instances be sufficient to search for any obvious engineering records or Council minutes relevant to statutory charge schemes[39].
8. In circumstances where there may be some doubt about previous construction, it would also be useful if the Council's search ascertained whether any records existed for other statutory charge schemes within the same time period. If the Council kept reasonable records and there was evidence of some other statutory charge schemes for other roads in the municipality for the same time period, but not for the Fairhaven Roads, this may provide sufficient proof by 'negative ascertainment'[40] that the Fairhaven Roads had not been previously constructed under such a Scheme.
9. In the present case, whilst a greater level of investigation of earlier records may have been prudent, I do not believe that the absence of those investigations is wholly unreasonable. Given the physical nature of the Fairhaven Roads apparent from inspection, the engineering assessment, and the search of the records back to the 1980's, the Council's actions were within the realm of acceptable conduct in seeking to confirm that the Fairhaven Roads had not been previously constructed under a statutory charge scheme - at least to a prima facie level.
10. I am also strengthened in this view by the fact that, throughout the consideration of the prior Scheme quashed by the Tribunal in 2003, and throughout the submissions and review process for the present Scheme, no objector had raised any issue as to whether any of the Fairhaven Roads may have been previously constructed or that the Scheme might be invalid on this basis. At the time the Council declared the Scheme on 1 August 2006, it had no indication from any of the 77 submissions or oral presentations, including from representatives of the Tuddenham Group, that there was possibly a "live" issue regarding previous construction. The Council was entitled, acting reasonably and based on its initial investigations, to presume at the time that there was no issue. In the circumstances, a presumption of regularity is appropriate in relation to this initial investigation.

1. The Tuddenham Group's evidence that the Fairhaven Roads (or at least some of them) had been previously constructed by the Council came primarily in the affidavits and testimony of Guy Tuddenham, Constance Caldwell and Kate Driscoll. From documents from the period, it appears that Mr Tuddenham's father (Dr Tuddenham) purchased land in Banool Road from Ms Caldwell's mother and brother (Bessie and Robert Mellor) in or about 1950. Mr Tuddenham still holds the original correspondence of the period, which includes the following:
   • In a letter of 20 January 1949, Mr Mellor states to Dr Tuddenham:

On the above, and all the foreshore lots we are putting the price at £75 (£5 of which is to go towards road formation (Banool Road) at back). It will not of course, be a fully built road, but sufficient to give access especially for building materials. So far the contractor has not given us any promises to when he will start the works, but we are hopeful it will be before the winter.

• In a letter of 30 June 1949, Mr Mellor states to Dr Tuddenham:

I very much regret inability so far, to get road formation attended to. I first took this matter up with the local contracting firm, (Armstead & Son, Kennett River) 13 months ago, but got little satisfaction from them ... I also got in touch with Barrabool Shire and though their first letter gave signs of promise, in their subsequent letter they stated "the Council considers the time is not opportune for the construction of private streets in this Estate" and suggested a private contractor should carry out minor works to provide access.

• A receipt for the land purchase of three lots by Dr Tuddenham, dated 21 November 1949 states:

£15 of the above amount retained as a contribution towards the road formation. [ie £5 per lot].

1. Mr Tuddenham also deposed to the fact that the roads were "fully formed but unsealed gravel roads, and that, apart from maintenance and some drainage works, the roads have not been upgraded since they were originally constructed".
2. Ms Driscoll deposed to the fact that she had undertaken a search in November 2006, at the Geelong Heritage Centre, of correspondence from the former Shire of Barrabool to various people or organisations in the period 1949 to 1952. This includes the following correspondence, all from the then Shire Engineer to Mr Mellor:
   • A letter of 27 April 1950 states:

I have inspected the Banool Road leading from Yarringa Road to the corner of Lots 90, 91 on your Estate at Fairhaven.

To clear this section it will be first necessary to grade Yarringa Road from the Ocean Road to Banool Road.

Subject to your approval, it is proposed to clear and form a track 15 feet wide at the centre of these roads from the Ocean Road to the corner of Lots 90, 91.

I have your letter of 29 ult. re private work at Fairhaven.

I will put the work in hand as you suggest and will continue the clearing towards Lot 119 until the amount of £200 has been expended.

As the work progresses I can advise more definitely the amount that can be completed for this amount.

I have your letter of 30 ult. re work at Fairhaven.

I regret that, owing to other urgent work, it will not be possible for the Shire to carry out any gravelling on your Estate for at least 3 months.

In the meantime you may be able to obtain the services of a contractor to do the work. I would suggest that you might try Mr Carpenter or Mr Evans in Anglesea.

I desire to acknowledge receipt of your letter of 30 ult., regarding your fourth subdivision in the Fairhaven Estate.

My Council at its last meeting instructed me to inform you that the work of forming roads and attending to drainage on this Estate could possibly be undertaken as private work by the Council in approximately 6 months time. If you are interested in this suggestion you might communicate further with the Shire Engineer.

1. It should be noted that Mr O'Brien presented this evidence in conjunction with his argument that the applicants needed to do no more than demonstrate that the Fairhaven Roads had been previously constructed by the Council wholly or partly at the cost of the owners (or that the Council had to prove that this was not the case). Whilst the material arguably goes part-way to that end in relation to the area around Banool Road, it certainly does not contain evidence that there has been a previous construction of any of the Fairhaven Roads for the specific purposes of s 163(7) of the Local Government Act 1989 or s 12(1) of the Local Government (Consequential Provisions) Act 1989 as outlined above. In particular:
   • There is no evidence of a prior statutory scheme under s 163 or Division 10 of Part XIX or Part XLII of the Local Government Act 1958, or at all[41].
   • There is evidence that the Council was not inclined to undertake the formal "construction" of private streets in the Estate at that time.
   • There is no evidence that the Council has assumed responsibility for the works as Council works at all. There is no evidence, for example, that the Council intended through the gravelling works to thereby "take over" the roads, using the common terminology of that time[42].
   • Indeed, the contrary position arises. There are various references to "private work" to "form a track" or "carry out gravelling" on "your Estate", subject to the Council grader being available, but possibly by a private contractor.
   • Mr Tuddenham's testimony that there has been no upgrading since the original formation is consistent with Mr Bain's physical inspection.
   • There is no evidence of "construction" to the "satisfaction" of the Council for the purpose of s 163(7).
2. In relation to the last issue, Mr Bramham for the Council referred me to Reeves v Warrnambool City Council[43] where it had also been contended by objectors that a Council was barred from seeking to recover any further costs in respect of the construction of a road, because it had already constructed the road at the cost of affected land owners. After referring to the definition of "construct" in s 163(8) of the Local Government Act 1989 and s 12 of the Local Government (Consequential Provisions) Act 1989, Senior Member Liston concluded:

For the purposes of this section "construct" means "any works necessary to complete the construction of a component of a private street to the satisfaction of the Council".

I do not consider that it can be reasonably contended that by grading and laying gravel on an unconstructed private street the Council is constructing a road to a standard which is to their satisfaction, particularly where this makeshift construction is carried out at the request of adjacent landowners for their short-term benefit. Indeed, there is no evidence to suggest that this was the Council's intention, and I doubt that any reasonable Council could have formed such an intention in any event.

I agree with Mr Liston's comments, which are directly applicable to this case. The evidence in this case all points to a conclusion that the Fairhaven Roads, or certainly Banool Road near Mr Tuddenham's land, were "formed" through private gravelling works carried out by the Council in or around 1950 at the request of the owners and have not, apart from minor maintenance, been upgraded since that time.

1. Given the meticulous records and correspondence kept by Mr Tuddenham, the recollections of Ms Caldwell, and the historical records searched by Ms Driscoll, I am confident that if there was evidence tending the other way, it would have been uncovered and produced by the Tuddenham Group.

1. I have essentially found that the applicants' material has not provided a sufficient level of evidence that the Fairhaven Roads have been previously constructed under a prior statutory charge scheme. The Council was therefore under no formal obligation to investigate the matter further in an endeavour to provide a more conclusive determination. When questioned by Mr O'Brien, Mr Bain indicated that he had read the affidavits of Mr Tuddenham and Ms Driscoll and the various attachments. As an engineer, he considered that the work in the 1950's was private work being done by the Council for a developer, separately from a statutory charge scheme. Having considered that material, he believed there was no impediment to the Scheme proceeding.
2. I agree with this assessment. However, I believe in the circumstances that the Council could have better communicated its view. The Council could have prepared a statement by Mr Bain as part of its evidence, circulated in advance at the hearing, or taken some other step to alert the applicants to its view of the material, rather than unilaterally dismissing it and then responding "on the run" at the hearing by calling Mr Bain. This may have considerably shortened the Tribunal hearing on this matter.

1. On the balance of probabilities, and having regard to the weight of material and evidence before me and the reasonableness of the investigations, I find that the Fairhaven Roads (and, in particular, any relevant component contained in the present Special Charge Scheme) have not been previously constructed for the purpose of s 163(7) of the Local Government Act 1989 or s 12(1) of the Local Government (Consequential Provisions) Act 1989.
2. The applicant therefore fails in establishing its first ground under s 185AA.

GROUND 2 - FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION (PREVIOUS CONSTRUCTION)

1. The Tuddenham Group contends that the Council failed to take into account relevant considerations required to be considered by sub-sections 163(7) and (8) of the Local Government Act 1989, namely whether or not any road or component had been previously constructed to the satisfaction of the Council to the extent the Council was precluded from recovering further costs by way of a Special Charge Scheme.
2. Whilst related to Ground 1, this ground seeks in the alternative to argue that the Council failed to turn its mind at all to the question of whether the Fairhaven Roads had been previously constructed when it declared the Special Charge Scheme. For this, Mr O'Brien relied primarily upon Electronic Industries Ltd v City of Oakleigh[44], Minister for Aboriginal Affairs v Peko Wallsend Ltd[45] and Collier v Whittlesea City Council[46].
3. Peko-Wallsend is an oft-quoted authority for the principle that a decision-maker must take into account relevant considerations. It does not stand for the proposition that a court (or tribunal) is justified in setting aside every decision where someone might later argue that a potentially relevant consideration was not taken into account. In Collier, DP Horsfall, in applying Peko-Wallsend to a statutory charge scheme, accepted a submission that such a ground could only arise where the decision-maker was bound to take a particular matter into account.
4. Electronic Industries was decided under the Local Government Act 1958. I have already indicated that the 1958 Act comprised a more comprehensive scheme of arrangement for private street construction. This included, as is evident from the judgment in Electronic Industries, a s 577(4)(d)(i) requiring the Council to formally consider any prior construction. Section 163(7) of the Local Government Act 1989 is couched in more general terms, and does not provide any express requirement that it be formally considered by the Council itself. It is sufficient in my view if the relevant officer within the Council properly considers the matter as part of the process of preparation of the Scheme.
5. In Electronic Industries, the court there held that there is a presumption of regularity that a council has complied with the provisions of the Act, although the presumption can "give way to the evidence or a properly drawn inference from the evidence"[47].
6. The evidence before me is that when the matter came before the Council on 1 August 2006:
   • The Council officer responsible for the project, Mr Bain, had considered the issue of previous construction and conducted an investigation of Council records at least back to 1989-90, as well as an engineering assessment and physical inspection.
   • No objector amongst the 77 submitters had raised any issue of previous construction.

I do not believe the fact that these matters are not reflected in the Council's minutes or resolution is material. I have found that the Fairhaven Roads have not been previously constructed as a matter of jurisdictional fact, and that the relevant Council officer acted reasonably in considering that matter, and I believe the Council is entitled to the presumption of regularity on this issue.

1. The applicant therefore fails in establishing its second ground under s 185AA.

GROUND 3 - FAILURE TO PROPERLY CONSIDER SUBMISSIONS

1. The Tuddenham Group contends that the Council failed to comply with ss 163A and 223 of the Local Government Act 1989 in that:
   • (a) the Council sub-committee hearing objections was not properly empowered to do so; or
   • (b) neither the Council nor the purported sub-committee properly took the written objections into account and/or took into account the relevant considerations.
2. Section 163A of the Local Government Act 1989 provides:

A person may make a submission under s 223 in relation to a Council's proposal to make a declaration under s 163.

Section 223 sets out the general process relating to submissions.

1. The first of the applicants' contentions is based on a premise that the Fairhaven Roads "Special Charge Scheme Sub-committee" was not properly established in that:
   • There was no proper appointment of the sub-committee.
   • The sub-committee had no delegated power to consider submissions on behalf of the Council under s 223.
2. In relation to the appointment, Mr Bramham produced the following Council minutes and resolutions:
   • 29 November 2005 - appointment of Councillors Tutt, Grossman and Humphrey as the "Special Charge Scheme Sub-Committee" for 2005/2006 with the minutes noting the representation is "for a 12 month period unless otherwise stated". (These minutes also note the same three councillors as the committee representatives for the prior year 2004/2005, and a further resolution on 6 December 2006 appointed the same three councillors for 2006/2007).
   • 4 April 2006 - resolution providing that, prior to declaring a Special Charge for the Fairhaven Roads, the council will review any submissions under s 223 "via Council's Special Charge Scheme Sub-Committee".
3. I am satisfied that the sub-committee was properly appointed at the relevant time when it considered the Fairhaven Roads' submissions. A contention by the applicant that the reference in the appointment to "2005/2006" is a reference to a financial year commencing 1 July rather than the 12 months from the date of appointment is not supported on the actual wording of the resolution and minutes.
4. In relation to the issue of delegation, s 86 of the Local Government Act 1989 allows a council to establish special committees and, under s 86(3), provides that a council may, by instrument of delegation, delegate any of its functions, powers or duties[48] to the committee. Mr O'Brien argued that the absence of a formal instrument of delegation or terms of reference for the Special Charge Scheme Sub-Committee meant that the sub-committee had no power to consider the Fairhaven Roads' submissions under s 223.
5. Whilst s 223(1)(e) requires that a council must take into consideration all the submissions made, ss 223(1)(b) and (c) provides:

(b) The council or where the council so determines a committee of the council must consider any written submission which is received by the council within 14 days after the publication of the public notice stating that submissions will be considered in accordance with the section.

(c) 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. [My emphasis]

There is a clear statutory intent that a council may provide for a committee of the council to consider written submissions and hear oral submissions[49]. The Council simply needs to "determine" this, and it did so in the present case through its 4 April 2006 resolution. A separate delegation is therefore unnecessary.

1. It should also be noted that the Special Charge Scheme Sub-committee only considered the written and oral submissions for the purpose of s 223(1)(b)(c) and made a recommendation to the Council. It did not purport to decide or declare the Special Charge Scheme.

1. The applicants' second contention under this Ground 3 is that neither the Council nor the sub-committee properly took the written objections into account or took into account irrelevant considerations. In the particulars for this ground, the applicants contend that:
   • The minutes of the sub-committee meeting on 11 July 2006 incorrectly or misleadingly state that, although there are a number of objectors, "the great majority of potential contributors are supportive of the Scheme proceeding" - this construes silence as support.
   • The purported sub-committee, and therefore the Council, failed to properly consider a number of written submissions - in particular specified issues[50] raised by the Aireys Inlet and District Association (AIDA) - given the issues are not reflected in the 11 July 2006 and 1 August 2006 minutes.
2. In support of this, Mr O'Brien referred me to s 223(1)(e) which requires a Council to take into account all submissions (i.e. even if a sub-committee is used to "hear" the submissions). He also relied upon Leigh v Banyule City Council[51] where DP Bruce had stressed the importance of the right to make submissions under s 223, the danger of reliance upon officer summaries of submissions, the consequences of determinative matters being left out of such summaries in circumstances where they were not then considered by the Council, and the fact that an indication of the level of objection may be a relevant consideration in the minds of councillors[52].
3. The reference in the officer report to the "majority support" is unfortunate, and Mr O'Brien is correct that the absence of objection is by no means evidence of support. However, the offending comment must be considered in context. When reported to the Council on 1 August 2006, the 11 July 2006 minutes containing this reference comprised only part of a 26-page report. The introductory summary in the report noted that 77 submissions had been received from 312 contributors, with four expressing support. The background section of the report summarises various categories of objection, with an indication of the number of submitters raising each issue. Moreover:
   • A special Council briefing paper on 18 July 2006 (following the 11 July 2006 minutes) had "corrected" the offending reference by noting that "the great majority of property owners have not objected ...", thus not inferring silence as support.
   • The 1 August 2006 minutes and the 18 July 2006 Council briefing paper note that all councillors received a full copy of all submissions, so that they did not need to rely solely upon the officer summaries. This factor overcomes the deficiency highlighted in Leigh.
4. In relation to the specific allegation that the submission by AIDA was not properly considered, the affidavit of Barbara Leavesley (AIDA's President) was that she attended the Council sub-committee hearing and presented AIDA's submission contained in a two page "spoken submission" which summarised the written submission AIDA had previously forwarded via her predecessor Ian Godfrey.
5. Ms Leavesley refers to seven matters that she states were included in the AIDA submission, but she deposes that these were not addressed in the Council minutes of 11 July 2006 or 1 August 2006. Mr O'Brien also asserts that the response to these submission in the report to Council of its purported sub-committee, as contained in the minutes of 1 August 2006 meeting, was simply that "issues raised by AIDA and Angair have already been responded to in the previous section - "issues raised"".
6. I have already noted that the Council had all of the submissions before it when it reached its decision, and it should also be recorded that AIDA is not itself a property owner called upon to contribute to the Special Charge Scheme although some of its members are. However, the allegation drawn from Ms Leavesley's affidavit and Mr O'Brien's assertion is simply not borne out by the evidence. The 11 July 2006 minutes, incorporated into the 1 August 2006 report, have a separate section headed "Community Group Submissions", which summarises the AIDA concerns through 14 dot points under three subheadings - more than for any other submitter. Although the wording in the council report is not identical to the AIDA submission, it encapsulates the relevant concerns. For example, Ms Leavesley deposes to the fact that the AIDA submission "raised issues regarding the effect of sealing of roads on pedestrian amenity and safety"[53]. She claims that the Council minutes don't reflect this[54]. The Council minutes however summarise this as an AIDA concern that "paved roads will impact upon pedestrian safety and comfort".
7. In my view, it is mischievous in the extreme for the applicants to contend that the AIDA's submission has been overlooked or misrepresented to the Council.
8. The only one of seven issues raised by Ms Leavesley in her affidavit which cannot easily be matched up with the Council minutes is an AIDA submission that the Council had not provided any life-cycle analysis to demonstrate the cost effectiveness of the works, although the Council minutes do note that AIDA had raised a concern with the "method of assessing the costs". The life-cycle issue had been very briefly referred to as one of 12 points in the original written submission prepared by Mr Godfrey, although the "spoken submission" presented by Ms Leavesley does not refer to it and there is no evidence that it was raised in oral submissions before the sub-committee. Mr Godfrey was called to give evidence on the life-cycle assessment before the Tribunal. However, this more detailed evidence was neither before the sub-committee nor the Council and cannot therefore be said to a have been ignored by the Council. At best, to the extent relevant, it relates to merits issues to be considered in the s 185 application.
9. Mr Bramham referred me to Meere v City of Sandringham[55] and Haughton v Frankston City Council[56]. In Meere, the evidence before the court was that there was no discussion of objections at a Council meeting before a resolution was put to the Council and carried. Dean J stated:

Upon this evidence, if it be admissible at all, I cannot say that the council did not consider the Scheme and the objections to it. What the council did can be ascertained only by what it resolved. The Scheme and objections were before it and the councillors voted upon them. Whether or not any councillor spoke for or against the resolution is beside the point. How much or how little consideration was given to the objections is also beside the point. The only statutory duty is to "consider" them. It must be assumed that, in voting, individual councillors knew what they were voting upon. I cannot understand how, in these circumstances, it can be said that there was no consideration given to the objections. The fact that, as appears to be customary, the resolutions were prepared in advance appears irrelevant. It only means that provision is made beforehand to ensure that, if councillors do decide to adopt the Scheme, this is done in proper terms. In my opinion this objection fails.

1. In Haughton, DP Macnamara stated that where councillors have relevant material before them, including the text of written submissions previously made opposing a Special Charge Scheme, there is no reason to think that the councillors did not read and consider that material.
2. I do not consider there is any basis for a finding that the sub-committee and the councillors did not consider the written objections.
3. Mr O'Brien's final contention under this ground was that the whole Council consideration was a sham, in that the Council officers and the Council had made up their minds before the meeting. He relied upon Bycon Pty Ltd v Moira Shire Council[57] where a court had held that the council in that case was so committed to a development that the subsequent procedures were nothing other than a ritual to create an illusion that submissions opposing the development had been seriously considered.
4. Again, the evidence in this case does not support such a finding. The Council reports note that a number of changes were made to the Special Charge Scheme following the submissions and objections process, including the exclusion of at least two properties and changes to the contributions from others. Moreover, I adopt the comments of DP Macnamara in Haughton:

The authorities on special rates 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 ... 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.[58]

Conclusions on alleged failure to properly consider submissions

1. I am satisfied that the sub-committee appointed to hear submissions was properly empowered to do so, and that the Council and sub-committee properly took relevant material into account.
2. The applicant therefore fails in establishing its third ground under s 185AA.

1. The Tuddenham Group contends that the Council sought to depart from a previously adopted policy - the Infrastructure Special Rate or Charge Scheme Policy - without affording affected objectors a specific right to be heard on that issue.
2. The Surf Coast Shire adopted its Infrastructure Special Rate or Charge Scheme Policy on 5 July 2005. The document states on page 2, in Section 6.1 Policy Objectives:

To ensure the solutions developed are cost effective and affordable to the local community.

1. Mr O'Brien argued that AIDA had specifically objected to the lack of demonstrated cost effectiveness in its written submission, and the objectors had a "legitimate expectation" that the policy seeking to ensure cost effectiveness would not be departed from without providing the objectors a specific right to be heard in relation to any proposed departure from that policy.
2. In support of his argument, Mr O'Brien relied upon Attorney-General for NSW v Quin[59] and re Minister for Immigration and Multicultural Affairs; ex parte Lam[60]. However, whilst both cases deal with the concept of "legitimate expectation" under administrative law, they are not directly on point. Both Quin and Lam were concerned with a legitimate expectation that a common 'procedure' would be followed for a particular applicant seeking the exercise of administrative power in his favour. Here, the attack is only on one of four policy objectives relating to the merits or outcome of a more general exercise of power by a Council.
3. In Lam, the High Court reviewed the earlier decision in Quin and other cases. A reading of the judgements would suggest that the notion of "legitimate expectation" in Australian law is really about reasonableness, and not every expectation will attract the doctrine[61]. "Legitimate expectation" is ultimately concerned with the factors relevant to what must be done to accord procedural fairness, and thus meet the requirements of natural justice, in a particular case[62].
4. In the present case, it cannot be said that the Tuddenham Group or AIDA have been denied procedural fairness, or that the requirements of natural justice in this particular case dictate a separate right to be heard on a Council's consideration or application of broad policy objectives. I seriously doubt that the applicants truly held such an expectation, and it would in my opinion be a nonsense to suggest that any such expectation was reasonable. By the applicant's own admission, AIDA had raised the issue of cost effectiveness in its written submission to the Council, and its general right to be heard has been fulfilled by the s 223 submission process. The applicant has the ability, within the limits of s 185, to raise this as an issue in the s 185 application in relation to the merits of the Special Charge Scheme and has proceeded to do so through the expert reports and evidence of Mr Godfrey and Mr Ryan.
5. Moreover, there is no clear evidence that Council has actually departed from the policy. Mr Bramham submitted the Council's position was that there was no departure, and there was simply a difference of opinion between Council and objectors on the issue of cost effectiveness which would need to be determined objectively by the Tribunal in the s 185 application, within the limits of the available grounds for review. Mr Bramham also submitted that the Council policy could not fetter the discretion of the Council in declaring the Special Charge Scheme, and referred me to Giuffrida v Manningham City Council[63]. In that case, the Tribunal had considered a s 185AA challenge based on the inclusion of certain expenses in the Scheme that the applicants claimed were contrary to the Council's policy and guidelines. The then President Justice Morris stated:

Even if the Council departed from its policy or guidelines, that would not mean that there was an error of law which would justify the making of a declaration. The policy itself relevantly describes its role as "guidelines". This type of document is not intended to lay down a prescriptive set of rules, disobedience of which will render the process invalid. Rather it is intended to give an indication as to how the power will generally be exercised, whilst retaining the right to exercise the power in some different way. It follows that if the power has been exercised in a manner that it is inconsistent with the guidelines or the policy, that does not matter in determining the lawfulness of the Council's conduct.[64]

1. I endorse the comments in Giuffrida. The applicant is in my view clutching at straws if it is serious in suggesting that the departure from a broad policy objective of cost effectiveness (if indeed there is a departure) is a matter going to the validity of the Special Charge Scheme rather than its merits.
2. It follows that the applicant fails in establishing its fourth ground under s 185AA.

GROUND 5 - NON-COMPLIANCE WITH S 163(2A) AND (2B) AND MINISTERIAL GUIDELINES

1. The Tuddenham Group contends that the Special Charge Scheme does not comply with ss 163(2A), (2B) and (2C) of the Local Government Act 1989 and the Special Rates and Charges Ministerial Guidelines, September 2004 in that:
   • (a) the allocation of 90% of the Yarringa Road access costs to be paid by the remaining affected landowners is excessive, unreasonable and unfair; and
   • (b) the allocation of 10% of the total costs as a Council contribution is inadequate.
2. Sub-sections 163(2A), (2B) and (2C) were introduced by the Local Government (Democratic Reform) Act 2003. They provide that the total amount of a special charge must not exceed an amount calculated by reference to a statutory formula based on benefit ratio, total costs, and the maximum that may be levied from all of the persons who are liable to pay the special charge. The benefit ratio is the estimated proportion of the total benefits of the Scheme including special benefits, and community benefits that will accrue as special benefits to all the persons who are liable to pay the special charge. Under s 163(2C), the Minister may make guidelines for the purposes of these provisions. A Ministerial guideline - Special Rates and Charges Ministerial Guidelines, September 2004 - was issued on this basis.
3. In relation to these Ministerial Guidelines, some of the comments I have already made in relation to Ground 4 on the issue of policy are applicable, as is the reference to Giuffrida where it was stated that the departure from a guideline would not ordinarily justify the making of a declaration.
4. Mr O'Brien argued that ss 163(2A) and (2B) "effectively require that the Council make a number of determinations, each of which are submitted to be reviewable"[65]. However, he also stated that "detailed evidence in support of these submissions will be provided by Guy Tuddenham in the presentation of the s 185 case"[66]. This latter concession almost in itself defeats the ground it is intended to support, and suggests that this Ground 5 is really a backdoor attempt to review the merits rather than an issue going to the validity of the Special Charge Scheme. When this was put to Mr O'Brien, he responded that the Council had not properly turned its mind to s 163(2A) and (2B) at all and its costing was therefore incomplete, and the costs allocation unreasonable. No material evidence was provided to support this in the context of the s 185AA application.
5. In my view, the issues raised by the applicant under this ground clearly relate primarily to special benefit and apportionment or, in the alternative, to the possible ground under s 185(2)(b)(iv). They are therefore properly dealt with within the s 185 application to the extent they fall within the grounds allowed for under that provision. They are not matters going to the validity of the Scheme itself. I endorse the general observation of the then President Justice Morris in Giuffrida:

It has been accepted that this power [ie the power in s 185AA] only enables the Tribunal to make a declaration as to legal rights in the same way that the Supreme Court could. It is not a power that enables the Tribunal to review a Special Rate Scheme on the merits[67].

1. It follows that the applicant fails in establishing its fifth ground under s 185AA.

1. The Tuddenham Group contends that the decision to declare the Special Charge Scheme is so unreasonable that no Council acting reasonably could have reached such a decision under the Wednesbury test.
2. Mr O'Brien initially argued this ground "having regard to the factors set out above [i.e. in his submission]" and that it "encapsulates many of the other grounds"[68]. To the extent the other grounds have each failed, this ground has a somewhat shaky start.
3. Mr O'Brien argued nonetheless that the totality of the matters raised by the applicant, in combination, could still support a finding of Wednesbury unreasonableness even if the individual matters, considered separately, might not. I agree with this premise - it is in fact the essence of the principle of Wednesbury unreasonableness that one looks to the totality of the material in order to form a view of overall reasonableness or unreasonableness. However, I do not believe that the evidence so considered supports a finding of Wednesbury unreasonableness in this case.
4. The Wednesbury principle takes its name from the decision in Associated Provincial Picture House v Wednesbury Corporation[69] where it was stated, in part:

It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. ... It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. ... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have stated, within the four corners of their jurisdiction, this court in my opinion, cannot interfere[70].

1. Mr Bramham argued that the Tribunal should be slow to invalidate a decision of the Council made with its detailed knowledge of local matters and policies, and that there was nothing "overwhelming" in the Council's conduct or decision to warrant a finding of Wednesbury unreasonableness in this case.
2. It would be fair to reflect that, having heard all of the submissions and evidence in relation to the s 185AA application, and a small part of the submissions and evidence on the s 185 applications, I have some misgivings about the level of detail or diligence applied by the Council in its preparation of this Special Charge Scheme. Some of this may simply result from a lack of reporting of relevant information, rather than necessarily reflecting a lack of substance in the investigations actually undertaken. However:
   • Through the expert evidence of Glen Ryan on behalf of the applicant, it became apparent that the costings for this Special Charge Scheme have not been prepared based on any detailed engineering drawings.
   • The Council material notes that:

"Approval of the Special Charge Scheme is to be based on a preliminary concept design which was included with the letter sent to property owners on 24 April 2006 ... The final design for the works will be developed after the Scheme is approved".[71]

Having viewed this document, the words "preliminary" and "concept" are apt, and almost an overstatement. The document sets out a number of fairly nebulous design principles such as "maintaining formal character of the roads".

• At least one significant error was noted by Mr Ryan (and subsequently conceded by the Council) - the length of Yandanah Road has been misstated by a factor of almost 100% leading to an error of similar proportion in the estimated pavement costs for this component.

1. In Giuffrida, the then President Justice Morris observed that to succeed on a ground of Wednesbury unreasonableness in relation to a declaration under s 185AA of the Local Government Act 1989 is a substantial task. In relation to an argument that the apportionment in that case was so unfair that no reasonable council could have made it, he found that the council methodology was not irrational nor based upon whim or caprice nor beyond the pale nor an act of madness or any other of the types of conduct that are sometimes used in the context of Wednesbury unreasonableness[72]. Justice Morris made this finding despite a finding also that he would have undertaken the special charge scheme differently to the council in that case, but noted that this was not sufficient in itself to support a finding that the Scheme was invalid.
2. In the present case, despite the misgivings I have noted having regard to the evidence and submissions before me, I do not believe the Council decision to declare the Special Charge Scheme is irrational or based on whim nor (following the terminology of Wednesbury) is it so unreasonable that no council, acting reasonably, could have come to that decision. Another council or this Tribunal may have exercised a different level of care and diligence in preparation of the Special Charge Scheme and the level of detail in the preliminary plans, or reached a different view of the application of policy, or reached a different view on the issues of need, benefit or apportionment. This is not sufficient to invalidate the Scheme, provided the Surf Coast Council has not acted wholly or overwhelmingly unreasonably in reaching its decision. I do not believe on the evidence that it has acted to that level of unreasonableness.
3. It must be emphasised that it remains in the s 185 application to decide whether or not the review on the merits should succeed. The finding that the Scheme is not invalid for Wednesbury unreasonableness should not give the Council comfort, nor the applicants concern, that the Tribunal has formed any concluded view on the merits.
4. It follows, however, that the applicant has failed to establish the sixth ground under s 185AA.

CONCLUSION ON S 185AA APPLICATION

1. For all of these reasons, the Tuddenham Group has not made out any of its grounds and I reject the application for a declaration under s 185AA. As indicated, the decision on the s 185AA application has been made by DP Dwyer alone.

SECTION 185 APPLICATION

1. The consequence of refusing the s 185AA application is that the s 185 application remains to be determined.
2. The Tribunal is wary of making comment on the s 185 application having heard only part of the submissions and evidence in relation to it. However, it makes the following observations without expressing any concluded view:
   • Based on the evidence of Helen Weston and a preliminary reading of the "Airys Inlet to Eastern View Neighbourhood Character Study and Vegetation Assessment", the Tribunal is not yet convinced that some level of road sealing would be wholly inconsistent with planning policies or objectives for the area. Equally, the absence of any real detail in the Council's concept plan for the works makes it difficult for the Tribunal (and presumably the applicants) to properly assess this issue.
   • Under cross-examination, the applicant's civil engineer, Glen Ryan, conceded that there may be some special benefit arising from the Special Charge Scheme - at least to some owners. The Tribunal will need to hear more evidence if it is to be persuaded to a contrary view on the issue of special benefit. The issue of special benefit however remains a live issue and the Tribunal would be interested in seeing the Council's assessment for the purposes of s 163(2A) and (2B) of the Local Government Act 1989.
   • The issue of apportionment is obviously still a live issue upon which the Tribunal is yet to hear any substantive submissions or evidence.
   • The absence of detailed design documentation makes it difficult for the Tribunal to have full confidence in the costings under the Special Charge Scheme, particularly given the glaring error in the estimate of pavement costs for Yandanah Road noted by Mr Ryan. This is potentially a serious impediment.
   • There was some discussion at the Tribunal of a potential compromise position whereby the applicants (or some of them) might agree to a lesser Scheme - eg the sealing of Yarringa Road to Forest Park Drive and a funded maintenance regime for other roads. Whilst the Tribunal encourages attempts by the parties to resolve their differences, the Tribunal cannot endorse a major change to the Special Charge Scheme before it, in the absence before the Tribunal of the majority of landowners affected by the Scheme.
3. Partly for these reasons, and more generally, the Tribunal believes it would be appropriate to hold a further Directions Hearing for the s 185 applications to consider the future conduct of the applications, the timing of any further hearing, and whether procedural directions for the production or exchange of additional or new material is warranted ahead of such hearing. It would be helpful if the parties attempted to achieve a consensus view on these procedural matters.

[1] Jacra Nominees Pty Ltd (Mr John Hall) & Ors v Surf Coast Shire Council (Application for Review P51158/2001).

[2] Ground 1 of the applicant's amended statement of grounds.

[3] Ground 3 of the applicant's amended statement of grounds.

[4] Ground 2 of the applicant's amended statement of grounds.

[5] This is a composite of grounds 4-9 in the applicant's amended statement of grounds, and Mr O'Brien drew these grounds together in his written and oral submissions.

[6] Ground 10 in the applicant's amended statement of grounds.

[7] Ground 11 of the applicant's amended statement of grounds.

[8] Ground 12 in the applicant's amended statement of grounds.

[9] Mr Bramham challenged the expertise and/or independence of two of the three experts. For the purpose of the s 185AA application, nothing turns on this. It is clear however that the witness Ian Godfrey is not 'independent' of the Tuddenham Group, and Helen Weston has an association with the Airey's Inlet and District Association (AIDA) referred to later in these reasons.

[10] It is perhaps worth noting that the reference in s 163(7) of the Local Government Act 1989 and s 12(1) of the Local Government (Consequential Provisions) Act 1989 to a 'component' of a private street was not materially in issue in this proceeding.

[11] For the purpose of s 163(7) of the Local Government Act 1989.

[12] For the purpose of s 12(1) of the Local Government (Consequential Provisions) Act 1989.

[13] [2001] VCAT 2275 at paragraph 5.7.

[14] Mr O'Brien also sought to distinguish Pedler on other grounds, relating to the definition of a 'private street'

[15] See for example the Second Reading Speech for the Local Government (Miscellaneous Amendments) Bill in the Council - Hansard, 28 October 1993 page 814 - where the then Minister for Local Government stated "Councils may use a special rate or charge to recover the costs of constructing unmade roads. However, the 1989 Act and the Local Government (Consequential Provisions) Act 1989 prevent a special rate or charge being used to recoup the costs for repair or reconstruction works on roads constructed under a private street scheme, a special improvement charge or special rate or charge. There is no such restriction in relation to roads constructed by other means - such as subdivision requirements". The Bill then before Parliament was considering a change to these arrangements, but the changes did not eventuate. A reference to Hansard appears in Pedler, but not the full extract.

[16] [1952] VicLawRp 60; [1952] VLR 459 (Full Court)

[17] [1971] VicRp 59; [1971] VR 466 (Stephen J.)

[18] [1978] VicRp 35; [1978] VR 325 (McInerney J)

[19] (1989) 3 AATR 149. This case was brought to the attention of the parties by DP Dwyer

[20] [1967] VicRp 111; [1967] VR 858 (Full Court)

[21] [2000] VCAT 654

[22] Tuddenham Group written submission, page 15 at para 48

[23] The decision in Toorak Village has also been superseded by subsequent amendments to the Valuation of Land Act 1960

[24] [1952] VicLawRp 60; [1952] VLR 459, 463. Interestingly, the English cases rely upon an 1892 Act that places the urban authority in the position of a plaintiff, although Martin J. did not necessarily see this as a differentiating factor.

[27] See also Firmstone v State Revenue Office [2003] VCAT 953, citing Esber v Commonwealth [1992] HCA 20; [1992] 174 CLR 430, 440.

[28] Tuddenham Group written submission, page 16 at para 51(c).

[29] [2000] VCAT 654 at paragraphs 54-55.

[32] Tuddenham Group written submission, page 16 at para 51(d)

[33] See Re Golem and Transport Accident Commission (No.1) [2002] VCAT 319; (2002) 19 VAR 265 per Vice (and now acting) President Bowman, and the cases cited in Pizer's Annotated VCAT Act (2nd Edition) at para 3759.

[34] applying, generally, the principle in Sandringham Corporation v Rayment [1928] HCA 13; (1928) 40 CLR 510, 516 - a Council should be held strictly to the performance of conditions on which it is authorised to exercise a power.

[35] This generally accords with the judgement of Martin J. in Coy that a Council show a prima facie case that a road has not previously been constructed under a statutory charge scheme.

[36] The principle of negative ascertainment is discussed further, below

[37] Mr O'Brien initially objected to Mr Bain being called, he having not filed any prior statement of evidence. The Tribunal considered the evidence to be potentially of some importance, and Mr Bain could have presented it as a co-submitter with Mr Bramham if not as a witness. By allowing Mr Bain to be called as a witness, Mr O'Brien had the opportunity to test the material by

cross-examination, which he undertook at some length. Mr O'Brien also requested that Mr Bain's evidence be given on oath, which it was.

[38] In similar fashion to his argument on s 600B, Mr O'Brien sought to argue that the principle in s 600C(2A) was also preserved in the current Scheme, despite its repeal. For similar reasons, I do not support this argument.

[39] It should be noted that Mr O'Brien's attack on this level of investigation was underscored by his argument that the Council had to prove that there had been no prior construction at all by way of owner contribution - a matter I have disagreed with given my finding that s 163(7) of the Local Government Act 1989 relates to previous construction under a prior statutory charge scheme. This would be a matter more readily apparent from specific engineering records or Council minutes.

[40] On the principle of 'negative ascertainment', see R v _City of Doncaster & Templestowe; ex-parte May_or [1971] VicRp 59; [1971] VR 466, 471, also followed in Slapjums and Fitzpatrick.

[41] Mr O'Brien also used an extract from Gifford 'Local Government Handbook, 1974' in an attempt to argue that if a Council had compelled partial construction of the roads at the time of subdivision, the Council's future ability to exercise its private street construction powers would be limited. This may be so, but there is no evidence that the Council had 'compelled' any construction of the relevant Fairhaven Roads at the time of subdivision, and the Gifford reference (and the power to require construction at the time of subdivision) relates to s569E of the Local Government Act 1958 which is not part of the 'Division 10 of Part XIX or Part XLII' referred to in s 12(1) of the Local Government (Consequential Provisions) Act 1989.

[42] The words "take over" were relied upon in Slapjums and Fitzpatrick to support a presumption that there was construction under a statutory charge scheme, given it was commonly accepted terminology at the time when a Council constructed a private street under a statutory charge scheme and then took over responsibility for the road. The evidence was also much stronger in both of those cases, supported by Council minutes evidencing a formal charge scheme.

[43] [2001] VCAT 1569.

[44] [1973] VicRp 15; [1973] VR 177

[45] [1986] HCA 40; (1985) 162 CLR 24

[46] [2002] VCAT 117

[47] [1973] VicRp 15; [1973] VR 177, 188.

[48] other than those excluded by s 86(4).

[49] Mr Bramham also referred me to a council "Management Procedure - Special Rate and Charge Scheme" adopted by the Council on 5 July 2005, which reinforces this process within the Surf Coast Council.

[50] The specified issues are detailed in ground 2.5.2 of the applicants' amended statement of grounds, include the extent of road sealing, impacts on flora and fauna, and costing, and also referred to in the affidavit of Barbara Leavsley.

[52] [1999] 7 VPR 128 - see for examples paragraphs 87-91, and 186-192.

[53] Affidavit of Barbara Leavesley, paragraph 10.4.

[54] Affidavit of Barbara Leavesley, paragraph 12.

[55] [1956] VicLawRp 95; [1956] VLR 638 (Full Court).

[56] [2000] VCAT 2394.

[57] [1998] VSC 25.

[58] [2000] VCAT 2394 at paragraph 33.

[59] (1990) 170 CLR 1, 56-57

[60] [2003] HCA 6. Mr O'Brien referred to a passage by Gleeson CJ at para 31 and following.

[61] For example [2003] HCA 6 at para 61-62 per McHugh & Gummow JJ.

[62] For example [2003] HCA 6 at paras 81 &103 and following per McHugh & Gummow JJ.

[63] [2005] VCAT 571.

[64] [2005] VCAT 571 at para 31

[65] Tuddenham Group written submission, page 43 at para 146.

[66] Tuddenham Group written submission, page 44 at para 150.

[67] [2005] VCAT 571 at para 13

[68] Tuddenham Group written submission, page 45 at para 151.

[69] [1947] EWCA Civ 1; [1948] 1 KB 223.

[71] Surf Coast Shire, the proposed Fairhaven Road and Drainage Construction, Frequently asked Questions (undated) afforded to landowners and available on the Council website.

[72] [2005] VCAT 647 at para 36.