Issue one - the validity of the current roads contributions plan
21The applicant contended that the roads contributions plan effective 31 March 2011 was not of a character authorised by the Act. The plan does not, it was said, address the matters required to be addressed by clause 27 of the Regulation. Also, it was said, the plan was entirely unclear and the decision to make it, as I understood the argument, was so unreasonable no reasonable decision maker could have made it. Moreover, the plan made no connection between the proposed development and an increase in the demands for the use of amenities in the area, namely roads. A similar challenge was made to the roads contributions plan that preceded the current plan but it is unnecessary to address that challenge as it was conditional on the challenge to the current plan being successful.
22At base, the applicant's challenge to the roads contributions plan is to be determined by reference to the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355. The ultimate legal issue is whether the Act, properly construed, manifests an intention that the act done (in this case the making of the contributions plan under s 94EA of the Act) in breach of the provision (concerning the content of such a plan: s 94EA and clause 27 of the Regulation) should be invalid or was otherwise not authorized by the Act: Project Blue Sky Inc at [93].
23It is fundamentally a task of statutory construction. However it is well settled that, at least in the ordinary course, it is impermissible to have regard to regulations when construing an Act: Wallaby Grip Ltd v QBE Insurance (Aust) Ltd (2010) 240 CLR 444 at [21]. But in the present case the relevant section, s 94EA, incorporates the requirements of the Regulation by conditioning the grant of power to make a contributions plan. The condition is that the preparation and approval of a contributions plan is to be "subject to and in accordance with the regulations". Having regard to recent authority in the Court of Appeal, a failure to do an act "in accordance with" a regulation as directed by statute, can render the act invalid: Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349.
24Accordingly, it is necessary to determine as a first step what the Regulation required and then, as a second step, whether the road contributions plan met those requirements. A possible third step is whether a failure to meet those requirements would render the road contributions plan invalid. That is, was the road contributions plan one the Act authorised the Council to make.
25The predecessor to clause 27 was clause 26. That latter clause was considered by Pearlman J in Eastport Pty Ltd v Leichhardt Municipal Council (2001) 112 LGERA 376. At that time clause 26(1)(g) required that a contributions plan include particulars of "a work schedule of the specific public amenities and services proposed to be provided by the council, together with an estimate of their costs and staging". Her Honour concluded the clause required particulars of public amenities proposed to be provided, the works involved in an estimate of their costs. It was not essential those particulars appear in a "works schedule" (a matter of form not substance) as long as they appeared in the contributions plan read as a whole. The works could be described at a level of generality such as "light rail access works, bicycle facilities, and commercial car parking". It was not necessary to set out the precise locations of those works. Her Honour noted "in some cases, it may be possible to be precise; but in other cases, the precise location of works may be dependent upon an estimate of future demand for the specific public amenity in question". Her Honour further noted that the use of the word "proposed" suggested that these specific public amenities are foreshadowed rather than fixed or binding.
26Clause 27(1)(h) is in terms different to clause 26(1)(g). The former requires "a map showing" the specific public amenities "supported by a work schedule that contains" cost estimates and staging. It was common ground that the absence of a map in the present case in the roads contributions plan was a matter of form only. That is not to say, the requirement for a map does not inform the proper construction of paragraph (h) as a whole. Nonetheless, the general approach to the construction of clause 26 is, in my opinion, apt to apply to clause 27.
27I turn now to consider the roads contributions plan in issue in these proceedings. The plan is not a model of plain English drafting revealing with great clarity how it is intended to operate. However my task is not to evaluate the plan as a piece of prose. Rather it is to assess whether it meets the requirements of clause 27 and is a plan of the type authorized by the Act.
28I should, at this point, mention one matter of some importance to this task. Basten JA gave the leading judgment in Hoxton Park Residents Action Group Inc v Liverpool City Council . His Honour appears to have drawn a distinction (at [24]) between requirements imposed by regulation expressed with a degree of precision and requirements expressed in a way which requires elements of judgment or discretion. In my opinion where the regulation requires the satisfaction of a requirement involving judgment or discretion, it is necessary to endeavour to understand how that judgment or discretion has been expressed. If its expression can reasonably be construed in a way that satisfies the requirement, that construction should be adopted: see, by analogy, King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195 and Parry v Osborne [1955] VLR 152 at 154.
29In my view, the roads contributions plan was intended to operate this way. Under the heading "EXPENDITURE OF CONTRIBUTIONS" on BSC1/7 the plan declared that contributions would be used on improvement to the road servicing the development. I have little doubt, and I think it was common ground, that the word "road" in the singular can in appropriate circumstances be treated as the plural. Thus we know from this declaration that it is the road or roads servicing the development that will be improved in one or a combination of the four ways identified in the four dot points. This is consistent with the observation under the heading "CONTRIBUTIONS" and the subheading "Contribution Formula" on page BSC1/4 that there will be infrequent opportunities for the augmentation of existing facilities rather than the embellishment of existing facilities. I take this to be a reference to road improvement rather than the building of new roads. Also, there is no reason to treat this reference (to "roads servicing the development") as being a reference only to roads directly connecting the development. It is reasonably capable of being understood as roads in a broader or wider road network ultimately connecting to the development. That is, roads in the Shire likely to be used more often because of use by the individuals populating the development.
30This declaration makes tolerably clear that the contributions will not be used on all or any of the roads in the Shire set out in schedule 1, but rather only those roads in the schedule which are servicing the development.
31The key to understanding the amount of the contribution required in any particular case is also found under the same heading and subheading on page BSC1/4. The plan notes that the Council will discount to 2 AADT (Average Annual Daily Total expressed in light vehicle movements) per residential development or subdivision lot created for all development types. Thus each lot created in a development is to have attributed to it the discounted level of 2 AADT. In, for example, a subdivision creating 10 lots there will be a notional attribution of 20 AADTs.
32There is, I must accept, a measure of confusion in the " Contribution Formula - Domestic " table on page BSC1/5 which follows this narrative. The confusion arises because of the admixture of road types and light vehicle movements. However, on reflection, I think this formula is intended to illustrate that smaller developments with less than a notional 50 AADTs (that is with less than 25 lots) need only contribute to the cost of maintaining or improving roads at the RG2 standard (Secondary Gravel Roads to 80 km/h) while larger developments are, in 2 incremental steps, to contribute more. In relation to the present development of 95 lots (putting aside the discount given by Council for the creation by the applicant of sections of sealed road into the development) there would be a notional 190 AADTs which would warrant the maintenance or improving of roads at the RB1 standard (Bitumen Road Standard to 80 km/h).
33There is a certain logic to this approach. Large developments (with many lots, probably more occupants and almost certainly generating more road traffic) are likely to create significantly more demand on road surfaces of the roads servicing the development than smaller developments. That demand is likely to be best met by the road surface being bitumen. The same might not be so for smaller developments with fewer lots, probably fewer occupants and probably generating less road traffic. Road servicing a development of this latter type might not need to be of the same standard.
34Understood this way, the formula demands of larger developments, a larger contribution to either create or maintain a road of a higher standard. The methodology for calculating the actual amount is in schedule 2 which identifies an amount per square metre of constructing a road of an assumed width for each road type. However, I accept that there is in schedule 2, a not readily comprehensible assumption that there will be more lots per 100 metres on a Standard Bitumen Road and a lesser number (itself disaggregated) on Gravel Roads. How this assumption arises I do not know. But I am not presently concerned with the minutiae of the formulation but rather the satisfaction of the statutory criteria.
35Obviously the critical element in the plan is the amount, in aggregate, to be paid by a person or entity who has secured development approval conditional on paying a roads contribution. In relation to a development which is not an industrial or commercial development, it is tolerably clear that amount is to be determined by reference to the information under the heading " Contribution Formula -- Domestic ".
36There is, however, an ambiguity in that information. Under each of the three headings referring to road type and numbers of AADTs (it was common ground that the reference to ">100 Local Roads" should be ">100 AADT") there is the line commencing "Contribution per Development" followed by some figures and ending with a dollar amount. These lines are susceptible of the construction, when read literally, that the dollar amount is the amount to be paid in relation to the entire development. Thus, in the present case, the contribution would, in aggregate, be $13,296. But this construction effectively ignores what is said in the plan under the heading "Contribution Formula" on page BSC1/4 discussed earlier in those reasons concerning AADTs per lot. It seems to me that the dollar amount at the end of each line is the amount payable per lot. In the result, a large subdivision (such as the present) has to pay a higher amount per lot because the contributions will be directed towards the creation or maintenance of roads to a higher standard.
37In my opinion, the roads contributions plan understood this way sufficiently clearly satisfies paragraphs (c), (d) and (e) of clause 27(1). Perhaps it is a little less certain in relation to paragraph (h).
38However it must be borne in mind that the roads contributions plan appears not to have been formulated with this or indeed any particular development in mind. This was a criticism made of the plan by senior counsel for the applicant. As I understood his submission, he suggested the plan in issue in these proceedings should have been recast or reformulated once it was known there was to be this significant development in the Shire. I do not agree. There is no reason apparent to me from the Act or the Regulation, why a roads contributions plan (or any other contributions plan for that matter) cannot be formulated for the purposes of general application over a period of time.
39I recognise the difficulty in formulating a roads contributions plan which can anticipate precisely where any given development might occur and the likely impact of the particular, but then unknown, development (if approved) on the surrounding road system in the local government area. Accordingly some measure of latitude, in my opinion, should be afforded those formulating a plan in identifying the "public amenities" referred to in paragraph (h) proposed to be provided by the council and the estimation of their cost and staging.
40I accept there is, in relation to the plan presently under consideration, no necessary connection between the cost of constructing new road (the amounts referred to in schedule 2) and undertaking the work identified in the four dot points referred to earlier, particularly when the plan recognizes there would be infrequent opportunities for the augmentation of existing facilities, viz. building new roads. However the connection does not appear to me to be irrational. For example, to widen and strengthen road formation and pavement (the first dot point) may well involve the reconstruction of a road. Thus there would be some correlation between the work and the cost. Likewise improving alignment or sight distance (the second dot point) may involve constructing small sections of new road to eliminate sharp curves or steep rises. Similarly improving drainage (the third dot point) may, at least in some cases, involve re-fabricating the road surface.
41In the result I am satisfied the requirements of paragraph (h) have also been met, the plan is sufficiently certain and its making was not manifestly unreasonable.
42The roads contributions plan effective 31 March 2011 was a plan authorised by the Act. It was a valid plan.