Jacra Nominees Pty Ltd v Surf Coast SC [2007] VCAT 1190

Jacra Nominees Pty Ltd v Surf Coast SC [2007] VCAT 1190 - VCAT 2007 case summary — Zoe

[29]

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a similar protection if a contribution to prior construction had already been made under specific provisions of the now repealed Local Government Act 1958 - i.e. by way of a private street construction scheme under that Act.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.
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].
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.

[35]

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.
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].
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.
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:

[37]

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.
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].
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.
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.
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.

[38]

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.
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.
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.
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.
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.
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.
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].
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.
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.
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.

[57]

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).
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:

[65]

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.
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].
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.
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.
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].
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.

[72]

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.
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".
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.
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.
Whilst s 223(1)(e) requires that a council must take into consideration all the submissions made, ss 223(1)(b) and (c) provides:

[77]

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.
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].
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.
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.
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"".
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".
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.
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.
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:

[85]

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.
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.
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].
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.
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:

[89]

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.
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.
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.
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.
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:

[98]

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.
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.
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.
It follows, however, that the applicant has failed to establish the sixth ground under s 185AA.

[102]

The consequence of refusing the s 185AA application is that the s 185 application remains to be determined.
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.
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.

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Jacra Nominees Pty Ltd v Surf Coast SC [2007] VCAT 1190 (29 June 2007)