Victorian Civil and Administrative Tribunal|2000-01-29

Matsuda PL vCasey CC [2000] VCAT 654 (29 January 2000)

Planning List - Local government - Rates and charges - Special rate - Streetscape improvements - Application for review - Local Government Act 1989, s 185

2. The special rate declared by the Casey City Council under section 163 of for the purpose of defraying expenses in relation to streetscape improvements in the Cranbourne Shopping Area is confirmed.3. Costs are reserved.

Mr S R Morris Q C and Mr A J Finanzio of Counsel (instructed by Messrs Purves Clarke Richards, Solicitors)

Mr C Duncan, Solicitor (of Messrs Maddock Lonie & Chisholm)

1. These were applications under section 185 of the Local Government Act 1989 ("the Act") for review of a decision to impose a special rate.

2. The applications were heard together with Application No. 1998/085731, made by all but the first of the applicants in the present matter, for a declaration concerning the validity of the decision to impose the special rate. That application was made under section 185AA of the Local Government Act. The Tribunal's power under that section is exercisable only by a presidential member. The presiding member has accordingly deliberated alone in respect of that application. Her decision is being issued together with this decision.

3. It was agreed that the evidence would be taken unsworn.

4. On 15 September 1998 the Council declared a special rate under section 163 of the Local Government Act for the purpose of defraying expenses in relation to streetscape improvements in the Cranbourne Shopping Area.

5. The rate was declared in respect of properties designated in a schedule to the relevant resolution. The area in which they were to be found was shown by a plan that was made available when public notice was given under section 163(1A) of the Act. The designated properties lay in the town centre, both east and west of High Street (the South Gippsland Highway). Those on the eastern side lay between Brunt Street (which has a junction with High Street towards the northern end of the town centre) and Sladen Street (which intersects with High Street at the southern end). Those on the western side lay between Clarendon Street (which intersects with High Street a little to the north of Brunt Street) and Sladen Street.

6. The scheme boundaries were shown imposed over the zoning map in a plan attached to the report of Mr B F Rogers, a planning consultant, of A T Cocks & Partners Pty Ltd, tendered by Mr Morris, which was accepted as accurately showing the area. Most of the designated properties were zoned Commercial Town Centre A by the Cranbourne Planning Scheme. The exceptions were several café and take-away food outlets in the commercially zoned triangle between Brunt and Stawell Streets and the highway, at the north-east of the scheme area, which were zoned Commercial Town Centre D. Two local government reserves were located with frontage to the south boundary of the scheme area, within the area of a Council-owned carpark.

7. The Cranbourne Planning Scheme has, we note, been replaced since the hearing by the new VPP format Casey Planning Scheme. No indication was given that the parties expected the new scheme, which had been exhibited before the hearing, to change the pattern of zoning in relation to the properties made liable to the special rate.

8. The area affected by the special rate is within the area to which the Cranbourne Town Centre Structure Plan applies. This was adopted by Council on 8 February 1997. It identifies "Precinct 1" as the main shopping centre. Precinct 1 includes all of the scheme area but a small area to the north-east, which is designated as a "mixed use - gateway" precinct, corresponding to the area zoned Commercial Town Centre D. At the outset we will say that this small area is accepted as being properly part of the area to which the scheme relates; and that its inclusion was not seriously challenged.

9. The primary purpose of the Commercial Town Centre A zone was:

"to designate land for higher order retail and community facilities in conformity with an appropriate regionally determined hierarchy to meet the needs of the City's discrete urban areas."

10. The Council specified as the criterion on the basis of which the special rate was declared "Non residential uses within the Cranbourne Shopping Area".

11. The rate was declared on the capital improved value of rated properties.

12. The special rate was calculated to raise the sum of $150,000 towards the cost of the proposed works ($300,000). The remainder of the cost was to be met by the Council.

13. The works were envisaged as the first stage of a program of works to improve the Cranbourne Shopping Centre. The proposed expenditure might be summarized as follows:

14. It was intended that the works be carried out in High Street and Sladen Street. The various items and their proposed location were illustrated in the "Cranbourne Streetscape Study" (Stage One), forming part of the bundle of relevant documents produced by

Ms M Fleischer, the Council's Senior Strategic Planner, in the course of her evidence.

15. The "Feature trees" item contained contingency items totalling $55,000. Of this, $15,000 was for root barriers. $40,000 was for "deviation of services". The costing carried a note to the effect that if these items cost less than anticipated, additional minor "soft landscaping works" would be carried out.

16. Masuda Pty Ltd is the owner of a property at 59-61 High Street, being on the western side.

17. The other applicants are involved with the Cranbourne Park Shopping Centre, a regional shopping centre on the western side of High Street towards the northern end of the town centre. All but Centro Property Management (Vic) Pty Ltd are owners of the property. The Centro company was described in the application for review as the manager of the Centre and representative of the tenants of the Centre. No challenge to its standing under section 185(1) of the Act was raised by the Council. No distinction was made between the submissions made on behalf of the owners and that of Centro. We take it that Centro subscribed to the submissions made by the owners of the Centre, and do not think it necessary to consider its position further.

18. Section 185 of the Local Government Act provides as follows:

(1) A person may apply to the Victorian Civil and Administrative Tribunal for review of a decision of a Council imposing a special rate or special charge on that person.

(a) within 30 days after the date of issue of a notice to the person of the special rate or special charge; and

(i) the works and projects or the period of maintenance for the purposes of which the special rate or special charge was imposed are not or will not provide a special benefit to that person; or

(ii) the basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable; or

(iii) if the planning scheme for the area contains any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are inconsistent with those policies or objectives; or

(iv) if the planning scheme for the area does not contain any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.

(a) vary the special rate or special charge declared by the Council in relation to its application to the applicant; or

(b) set aside the special rate or special charge if satisfied that the ground in sub-section (2)(b)(ii), (iii) or (iv) is established; or

(c) dismiss the application and confirm the special rate or special charge.

(4) If the Tribunal sets aside a special rate or special charge made in a particular year, the Council may declare and levy a new special rate or special charge for that year even if the year has ended.

19. Section 185AB of the Act provides as follows:

In determining an application for review or for a declaration under section 185 or 185A, the Tribunal must--

(a) take into account any relevant planning scheme; and

(b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved by the Minister.

20. The grounds on which Masuda Pty Ltd relied were -

(i) The works and projects for the purpose for which the special rate was imposed will not provide any special benefit to us (referable to section 185(2)(b)(i));

(ii) Part of the proposed works are wasteful and excessive (referable to section 185(2)(b)(iv)).

21. Mr Croymans told the Tribunal that he was as director of Masuda Pty Ltd. We note that Masuda's application was lodged within time and that its standing is accepted. Mr Croymans mentioned that his estate agency acted as managing agent for other owners of High Street premises, and that his submission to the Tribunal represented their views as well as those of Masuda.

22. Mr Croymans' submission was largely criticism of the nature of the proposed works. He argued that, because the works were wasteful and excessive, no special benefit would result from them to his company, or the other traders for whom he spoke. The points he raised could be referred to section 185(2)(b)(iv) of the Act, in that he alleged that parts of the works were unnecessary (new street furniture), excessive (trees too many and too large), insufficient (drainage), unsuitable (poles and banners) or costly (poles and banners, contingency amounts, new street furniture), having regard to the locality and environment. The examples quoted are not exhaustive, as some of the items attracted more than one ground of criticism.

23. He accepted that the commercial area needed to be improved, but submitted that the improvements should be made so as to benefit traders who were to contribute to the cost of the works both through the special rate and through the general rates that made the Council's contribution possible. Mr Croymans submitted that other works and projects, along the lines of the Cranbourne Chamber of Commerce proposals appended to Mr Croymans' submission and supported by him, could provide a special benefit to Masuda Pty Ltd and the other traders represented by Mr Croymans.

24. Mr Croymans contended that for various practical reasons the proposed scheme fell short of providing a special benefit to traders. The Council had, he said, been largely unresponsive to detailed suggestions the traders had made. He tendered photographs illustrating the "scruffy" state of the footpath and nature strips in part of High Street, submitting that the traders were concerned to have the existing High Street paving completed speedily under a separate scheme, rather than replaced. He contended that the grassed nature strips down High Street could not be improved by seating; they already showed worn patches where people walk across them, and paving was the remedy. The existing paving was "too good to pull up", and merely needed to be completed. On the other hand, to buy new seating in order to place it on these grassed areas only continued the existing difficulty that the worn patches turned to mud when it rained.

25. Mr Croymans submitted that persisting drainage problems and paving should be dealt with before other work, which he characterised as "cosmetic", was undertaken. He produced a newspaper report and picture of the High Street in flood after heavy rain. The traders had also noted that proposed expenditure on feature trees included a sub-item "Contingency for deviation of services .. .. $40,000". They feared that this concerned serious storm water drainage problems that should be rectified out of general revenue. Mr Croymans doubted that drainage works recently announced in connection with the new Harris Scarfe store would resolve the drainage problem for the area.

26. The owners had also been concerned about the choice of trees and other aspects of design and cost. Mr Croymans tendered photographs showing views of High Street, which support his submission that the space available for trees in some of the areas shown on the Cranbourne Streetscape Study is impracticable. There are power lines immediately above the nature strips, and the verandahs of many of the shops protrude over the footpath at a height that would allow little scope for a large tree to develop. Some verandahs are supported by posts, leaving very little room on the footpath for any planting between the verandah edge and the gutter. The trees chosen for positions under the power lines, which were main carrier lines serving other areas, would require trimming. This defeated the criterion of "low maintenance" trees. Before planting advanced tree specimens under the wires, Mr Croymans submitted that the Council should pursue with Eastern Energy the bundling or putting underground of overhead powerlines.

27. Mr Croymans also pointed out the density of planting illustrated in the Cranbourne Streetscape Study. He submitted that too much planting on the footpath obscured signage and frontages, which was unacceptable to the traders. Ms Fleischer, in her evidence on behalf of the Council, agreed that trees planted in front of Cranbourne Park Shopping Centre had been thinned because of concerns expressed by the centre management about exposure to High Street.

28. The median strip already had trees, and substantial ones, Mr Croymans continued. But the highway was under the control of VicRoads, not the Council; and the Council had not resolved the proposals for changes to the median with VicRoads. Ms Fleischer acknowledged that this was so; and that VicRoads did not necessarily want to have trees in a median obstructing the view of motorists. She explained, however, that the trees set out on the plan were only shown as an indicator.

29. Mr Croymans claimed that the need to make the main street shopping centre more attractive had arisen largely from neglect by the Council. This may or may not be so, but does not take away the Council's power to collect money for improvement by way of a special rate, if special benefit can be shown to result.

30. Considering the proposed works, Mr Croymans said the traders rejected the idea of flags and banner poles. These soon get dirty, and do not have a long life. The traders also questioned the need for new street furniture, as the existing furniture is robust, in good condition, and could be smartened up with paint.

31. Mr Croymans called as a witness Mr D Bourke, who is a tenant of 70 High Street and owns "Budget Locksmiths". Mr Bourke stated that he did most of the talking to the other traders about the scheme, including collecting signatures on a survey showing businesses "for" or "against" the proposals, which was appended to Mr Croymans' submission. He confirmed the strong opposition to the poles and banners. He stated that they already had flags that announced events, located in the centre of the median, and there was a lot of maintenance work that could be done. He did not seek to establish that there was total opposition to all items included in the project, but said that the tenants felt that some of the money on some of the items was not required.

32. Mr Croymans asked that, if the Tribunal upheld the special rate, it should direct the Council to undertake the works in a proper manner, one that was not wasteful or excessive and that created a real benefit for traders paying the special rate. He suggested that a proper sequence would be first of all the completion of paving, then rectification of drainage problems creating liability to flooding, bundling or undergrounding of power lines (if undergrounding, on a suitably broad funding base), and planting of trees that would not interfere with power lines or verandah canopies. He stated that, if the work was not carried out in the proper order, the traders would get nothing.

33. The other applicants contended that the works would not provide them with a special benefit, and that the basis of distribution of the special rate was unreasonable.

34. Mr Rogers, who gave evidence on behalf of the CPSC group of applicants, told the Tribunal that the core commercial area of the Cranbourne Town Centre contained approximately 52,000 m2 of floor area devoted to the sale of retail goods or retail services. Cranbourne Park Shopping Centre accounted for about 30,000 m2. Cranbourne Park was a freestanding enclosed centre, by which he means that it operates as an independent integrated unit in single ownership with managed occupancies. It had parking for 2,900 cars. It included a discount department store, two full-line supermarkets, a mini-major, a range of specialties and a cinema complex. It had been constructed behind the High Street strip shopping centre, with an internal mall running parallel to High Street.

35. There were now nine entrances (reduced from 10 by the closure of a former shop, and including one from a roof-top car park), four of which provided direct access to High Street and two others (to the north and south) that accessed car park areas serving both the Cranbourne Park Shopping Centre and High Street.

36. Mr Rogers noted that the Cranbourne Park shopping centre owners would, in respect of the several occupancies, be liable for $88,919.46, being approximately 60% of the amount to be funded by the special rate or 30% of the cost of the works.

37. Discussing the context of the special rate, Mr Rogers observed that the Council had in recent years adopted a series of integrated plans and strategies that had as their object enhancing the Cranbourne Town Centre to provide a civic focus and to increase its regional role as a commercial centre. He referred, in particular, to -

* the Cranbourne Town Centre Structure Plan (adopted February 1997).

* Retail Strategy for the Urban Area of the City of Casey (1996).

* The exhibited Casey Municipal Strategic Statement and associated local policies.

* The current Cranbourne Streetscape Project, August 1998.

38. The purpose of the Cranbourne Town Centre Structure Plan is to:

"Provide a plan for the Cranbourne town centre that will ensure that it remains the regional focus for retail, commercial, business, cultural, administrative, recreational, entertainment and community activities serving the rapidly growing southern section of the South Eastern Growth area of Melbourne and into Gippsland."

39. Mr Rogers noted that the Cranbourne Park shopping centre, which had been built in 1979 and expanded in 1987, had been refurbished in 1997 at a cost of about $10 million, and that further refurbishment and extensions were under way. Particularly relevant was the new Harris Scarfe junior department store, plans of which were produced as regards its relationship to High Street, and a restaurant. The northern portion of the central mall was proposed to be upgraded, including the mall flooring.

40. Discussing the relationship of the Cranbourne Park Shopping Centre with the town centre and High Street, Mr Rogers referred to statistics showing that some 46% of Cranbourne Park patrons used entrances with no direct physical relationship to High Street. He added that, while the shopping centre had access points on, and an abuttal to, High Street, its retail frontages were almost totally internalized. He suggested that the internal mall, paralleling High Street, caused Cranbourne Park to turn its back on High Street. This was emphasised not only by the blank masonry walls fronting High Street, but by the fact that the main floor level of Cranbourne Park Shopping Centre is lower than the adjoining Street level at the northern end, so that there was a physical separation from High Street.

41. Mr Rogers referred to the frontage that Cranbourne Park had to High Street. By his reckoning, Cranbourne Park Shopping Centre had a "commercial" frontage (that is, excluding certain car park frontage) to High Street of 245 m, much of which was an "inactive" blank wall. The commercial frontage would represent 18.6% of the proposed streetscape area frontage to High Street and Sladen Street. If the excluded car park frontage were taken into account, the frontage would be 465 m, or 27.6% of the whole. Mr Rogers noted that

Mr Henshall [as to whose evidence see later] had, on the latter basis, concluded that the Cranbourne Park Shopping Centre frontage was 36.5% of the whole, but claimed that, in reaching that conclusion, Mr Henshall had misunderstood his (Mr Rogers') own calculations.

42. The points at which Cranbourne Park Shopping Centre interacted with High Street were, in Mr Rogers' opinion, at the "town square", which is located at the southern end of the Cranbourne Park buildings, linking High Street across the open space provided for the purpose by the Centre directly to the mall; nine shops which front High Street immediately north of the town square, turning their backs to Cranbourne Park; and the large southern carpark that serves both the Cranbourne Park and strip centre tenancies.

43. Mr Rogers stated that, in choosing to apply the special rate to the retail core of Cranbourne, the Council seemed to have assumed that all retail properties with an abuttal to High Street would benefit equally. That was the rationale for the proposal that costs be distributed on the basis of capital improved values. The majority of the retail area did not, however, have a direct retail frontage to High Street. High Street had once been the town's main axis. The internal mall of Cranbourne Park Shopping Centre was now another. Many of the occupancies within Cranbourne Park had their frontage to the internal mall and lesser walkways, without any direct physical connection to High Street. Even the new Harris Scarfe store is not proposed to link directly to High Street; it is set well back with blank walls. Being an anchor, its function is not to display to a street frontage, but to draw people into the centre. The new restaurant, however, would create a new street frontage entrance to High Street in the northern part of Cranbourne Park.

44. Mr Rogers agreed that there is some benefit for shops within the Cranbourne Park Shopping Centre connecting to High Street, although it is not the prime focus. The linkages have been improved in the upgrading process. The reorganisation of the internal mall has improved the attractiveness of Cranbourne Park, along with the "lifestyle" tenancies such as the food court, and other improved amenities emphasising its "meeting place" role. These improvements have also brought additional business to the whole centre. He could not say that there was no room for further improvement.

45. Mr Rogers proposed the length of frontage to High Street and Sladen Street as a preferable basis for the special rate. He saw the shop fronts as the most relevant indicator of benefit, and "frontage" better reflected the fact that most of the shop space was within the Cranbourne Park Shopping Centre, not directly on High Street.

46. Examining retail operations within Cranbourne, Mr Rogers suggested that the High Street and Cranbourne Park spines were quite distinct, and that Codrington Street, which had zoned commercial land at its southern end on the western side, was a potential third spine. He suggested also that, while there were linkages between Cranbourne Park and High Street, there was very limited direct relationship. It was expected that shoppers at Cranbourne Park would use High Street for such complementary services as banking.

47. Mr Rogers made two further comments while discussing matters that might here be relevant to the striking of a special rate. He expressed the opinion that Cranbourne Park Shopping Centre had, by undertaking its own refurbishment and by monitoring its tenancy mix, made a far greater contribution to business in the town centre as a whole than the proposed streetscape works were liable to make to trade at Cranbourne Park. He acknowledged that the benefits derived from the refurbishment by the other traders in the town centre would be significantly less than the benefits to the traders within Cranbourne Park. He also considered that Cranbourne Park should receive recognition for having provided a Town Square to the retail centre, which he regarded as a significant past contribution to street works.

48. Mr Rogers expressed the opinion that there were two pragmatic alternatives for the striking of a special rate for the streetscape works - capital improved value or length of street frontage. The choice depended on the true purpose of the works. If the purpose were to create a sense of place for the town centre as a regional focus, which would be consistent with the purpose of the Cranbourne Town Centre Structure Plan, capital improved values would be appropriate, but the rate should be imposed on properties in the whole of the Town Centre, and not merely the core area. If the purpose were to provide a more commercially vibrant centre for traders fronting the main streets, frontage would be appropriate. In that event, the Cranbourne Park car parking frontage should be excluded, as it provided a convenience to customers and did not fulfil a direct trade function. When the Cranbourne Park mall had been upgraded, the High Street traders had not benefited to the same extent as the Cranbourne Park traders. Similarly, the streetscape works would provide Cranbourne Park tenants with less benefit than the High Street traders. The Cranbourne Park benefits would be more equitably reflected by a street frontage basis of contribution.

49. Having formed the view that the purpose of the works was of the latter kind, Mr Rogers concluded that length of street frontage was the appropriate basis and, moreover, that additional streets parallel to High Street should be taken into account. Accordingly, he said, the special rate should not proceed in its present form.

50. Cross-examined, Mr Rogers said the Town Square was owned by Cranbourne Park shopping centre but had been leased for 99 years to the Council. The Town Square made the shopping centre more remote, but opened up the area. Cranbourne Park had been improved to protect the investment in it. The deterioration of High Street would be undesirable, but it would have less impact on Cranbourne Park than deterioration of the shopping centre itself. Cranbourne Park shopping centre would obtain some level of benefit from the special rate, but it would not be equivalent to High Street.

51. Mr Rogers made it clear that the Town Square had been provided as part of the initial establishment of Cranbourne Park. The circumstances in which it was "given" were not fully described. We believe this should be seen as part of the required linkages between an internalised shopping centre and the adjacent strip, with the additional area set aside as a "square" being very probably no more than a community contribution associated with the initial permission being granted. We see no reason to give further credit for it.

52. We propose now to refer to submissions made by Mr Morris.

53. Mr Duncan had submitted that it was for the applicants to prove their case, i.e. to make out their grounds for review; and that the Tribunal should not lightly overrule the decisions of the Council. Mr Morris distinguished between the section 185 and the section 185AA applications with respect to this issue. Mr Morris submitted that, in the case of the section 185 application, the Tribunal's powers, although exercisable on narrow grounds, were in the nature of a merits review, rather than judicial review.

54. Mr Morris argued that, in the case of the section 185 application, decisions such as

Koklas v City of Richmond (1993) 10 AATR 329 at 337 and Jacobsen v Shire of Flinders (1993) 12 AATR 207 at 229, which said the onus falls on the applicant to establish a ground of review, were wrong. He pointed out that there was no reasoning in Koklas to support the finding. He argued that Jacobsen's case followed Koklas and Costa v City of Doncaster & Templestowe (1985) 3 PABR 46, but omitted a reference to the legislation that was a distinguishing factor.

55. Costa's case dealt with a street construction scheme under the Local Government Act 1958. The scheme was in the nature of a charge, not a rate. At that time, section 600B of the Act contained a specific provision placing the burden of establishing that the street proposed to be constructed was a private street on the council, but the burden of establishing any objection on the applicant. That was the reason for placing the onus on the objectors actually given in Costa. The reference to section 600B was omitted in Jacobsen's case.

56. Mr Morris went on to argue that, although the Valuation of Land Act 1960 has overtaken the rule as to onus as set out in Toorak Village Development Pty Ltd v City of Prahran [1967] VicRp 111; [1967] VR 858 in valuation cases, it has not been changed as regards special rates. In the Toorak Village case, absence of "special benefit" was a ground of objection in the separate rate schemes of the time. The Full Court of the Supreme Court considered the effect on the "appeal" provisions of the transfer of jurisdiction to the County Court which had taken place in 1891. It found (at p.863) that the transfer had not changed the character of the appeal or the onus of proof. The practice had previously been, and had continued to be, that the council had to begin the case; and the onus of proof lay on it to show that the grounds of objection were unfounded. This was said by the Full Court to be the case in any rate appeal.

57. The historical basis for the onus falling on the council was said by the Full Court to be that the council had been regarded as coming to the court to establish its right to what it claimed. The Court considered that onus placed on the council was convenient as well as having been shown to have prevailed for a very long time.

58. We very much doubt that the old rule as to onus has survived the conversion of the former right of appeal to the County Court to an administrative remedy before this Tribunal and its predecessors. The Appeal Division of the Supreme Court considered the issue generally in the context of a right of review to the Administrative Appeals Tribunal in McDonald v Guardianship Board [1993] VicRp 36; [1993] 1 VR 521 at 526. We think it is clear that "the presumption of validity", which was said to apply in Costa's case to the Council's decision under review, does not apply in the case of a decision under review now, in any event. The Appeal Division in McDonald's case made it very plain (at p.530) that:

"......whether or not the Administrative Appeals Tribunal upon a review conducts a hearing de novo, it is in our opinion obliged to conduct the review without any presumption as to the correctness of the decision under review."

59. We understand ourselves to be obliged to consider the situation at the relevant date (which we would here take to be the date of declaration of the special rate, in the absence of argument on the point), in the light of the material before us.

60. Deputy President M.F. Macnamara. in Castik Investments Pty Ltd v City of Stonnington (unreported, No. 1998/73255, decided 18 May 1999) described the history of the Administrative Division of this Tribunal (in which this proceeding was brought), and how its form was derived from the Commonwealth Tribunal established by the Commonwealth Administrative Appeals Tribunal Act 1975. Brennan J, in Bushell v Repatriation Commission [1992] HCA 47; [1992] 175 CLR 408, at 424 and 425, described the situation of the Commonwealth AAT, in the context of a review where the relevant legislation contained a provision that there was no onus, but in general terms drawn from the character of the Tribunal, as follows:

"Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to rebut a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings."

61. Before leaving the subject of a possible onus of proof, we refer to the decision of Batt J in 101 Collins Street Pty Ltd v City of Melbourne (unreported; 2 April 1996). The decision was later considered by the Court of Appeal, but in respects unrelated to onus of proof. Batt J held that the former section 42(2) of the Valuation of Land Act 1960, which required the Supreme Court to confirm a disputed valuation in default of appearance of the appellant but permitted the Court to re-open the matter upon the showing of good cause, was inconsistent with the rating authority's having an onus of proof. Section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998 provides that, if an applicant for review of a decision does not appear, the Tribunal is to confirm the decision, and section 120 permits the re-opening of the order of the Tribunal in certain circumstances. The provisions of the Local Government Act 1989 concerning review of special rates do not appear to modify the application of those provisions. Batt J's decision would consequently seem to suggest that the Council cannot here bear an onus of proof. In 101 Collins Street His Honour also concluded that, in its context, the former section 42(2) of the Valuation of Land Act showed that there was an ultimate onus of proof on the appellant. Having regard, however, to the differences in nature between the function of a court and those of the Tribunal, we would not take that conclusion to be applicable to the present applicants for review.

62. Although the grounds on which a special rate may be challenged are very narrowly defined, and the scope of the orders available to the Tribunal is also narrow, the proceeding in our view retains the character of a merits review; and all parties have indeed led their evidence on that assumption.

63. 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. It terms of an evidential burden, there is evidence to justify raising the issues. The issue is more a matter of weight to be accorded and 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.

64. Mr Morris noted that Mr Duncan was inclined to speak of the properties proposed to be made liable to the special rate as having a frontage to High Street, or being situated "around the corner" from it in a side street. He accepted that the Cranbourne Park Shopping Centre as a whole had frontages to High Street. He submitted, however, that the individual occupancies had to be rated separately, here referring to section 158 and section 158A of the Local Government Act, section 13DC(1) of the Valuation of Land Act 1960, and section 163(3)(b) of the Local Government Act [the text of which provisions we do not think it necessary to set out]: Mr Duncan accepted that this was correct.

65. Mr Morris went on to submit that it followed that special benefit had to be shown for each occupancy. It was not good enough to claim benefit for the whole Cranbourne Park centre as a single entity, as Mr Morris claimed the Council had. If one did so, he said, one would say it fronted High Street. However, some of the individual occupancies lay on the far side of the mall within the shopping centre that ran parallel with High Street. This mall was, in effect, another street, much the same as Codrington Street to the east of High Street. If looked at as separate occupancies, these properties did not front High Street.

66. Further, his clients would not derive a special benefit from the proposed works, compared with the owners of other properties. The proposed works were, he claimed, an attempt to bring the High Street traders up to speed, and would not be of special benefit to the Cranbourne Park Shopping Centre.

67. Moreover, Mr Morris submitted, the basis of distribution was unreasonable. Capital improved values were not a universally appropriate basis of distribution in the case of works such as those proposed here. Such works could not always be expected to produce a uniform increase in economic activity. This scheme favoured the external environment at the expense of the internal.

68. Mr Morris submitted that a special rate could be levied differentially: Mr Duncan accepted that this was correct. The Council could, for example (Mr Morris said) have levied Codrington Street properties at 25%. The fact that this alternative was available bore on the question whether the distribution was unreasonable.

69. He asked the Tribunal to set aside the special rate or vary it in relation to his clients to the extent necessary to produce an equitable result.

70. The Council contended that the proposed works would provide a special benefit to the applicants and that the basis of distribution of the rate was not unreasonable.

71. Mr Duncan submitted that the objections of Masuda Pty Ltd to the nature of the proposed works did not attract the jurisdiction of the Tribunal.

72. So much of the objection of Masuda Pty Ltd as must be regarded as directed to section 185(2)(b)(iii) or (iv) has the difficulty that in our view, this scheme cannot be regarded as being for construction of a road. Only road and drainage construction schemes are subject to challenge on these grounds. There may be some minor footpath work as part of the tree planting, for example; the scheme is not directed at roads and drains. Mr Croymans himself described the work as "cosmetic", and criticised its lack of planning for drainage provision.

73. Without road and drainage construction, the only available grounds to review a separate rate are section 185(2)(b)(i) and (ii), being "no special benefit to the person reviewing the decision", and "the basis of distribution among those liable to pay is unreasonable".

74. The only basis on which Mr Croymans alleged that there would be "no special benefit" to those he represented was if the work was done in the wrong order, and was wasted when further, more extensive work had to be done, or if its effect did not last long (for instance, the banners). Then the benefit, he alleged, would be lost. This is not a clear statement that there would be no special benefit; only that the benefit might be temporary. Mr Croymans did not challenge the basis of distribution among those liable to pay.

75. Explaining the streetscape works scheme and its origins, Ms Fleischer referred to the Cranbourne Town Centre Structure Plan, which she said had been adopted by the Council in 1997. She noted that the plan identified the main shopping centre as Precinct 1, and that the properties proposed to be made liable to the special rate were within this precinct, with the exception of a few at the north-east of the scheme area, which lay within a mixed use gateway Precinct 3. These latter properties, although outside the core retailing area, were regarded as belonging to the shopping centre. There had been no objection to their inclusion in the scheme. The Cranbourne Planning Scheme zoned the properties to be affected by the special rate scheme in a way that corresponded broadly with the Town Centre Structure Plan [as to the relevant zones, see earlier]. The Council considered that the special rate scheme would help ensure that the shopping centre performed the role of regional centre envisaged by the Structure Plan and the planning scheme.

76. Council officers believed, Ms Fleischer told the Tribunal, that the provision of trees, seating, bins and other shopping amenities would enable the main retailing component of the town centre to better attract and retain shoppers. This would offer a direct special benefit to the shops.

77. Ms Fleischer described the Cranbourne Park Shopping Centre as an integral part of the Cranbourne shopping centre. It had been planned as such from the outset. She recalled that Council officers had encouraged the creation of major stores, rather than small specialty shops, in the Cranbourne Park Shopping Centre, so that the Centre would complement the High Street shops rather than compete with them. Recent planning applications to the Council for extensions to the Cranbourne Park Shopping Centre (of which some were still to be constructed) had sought the support of the Council by submitting that the proposed developments would improve the integration of Cranbourne Park with the adjoining main street retail areas. Cranbourne Park and the High Street strip in fact complemented each other (banks, for example, being mostly found on the eastern side of High Street). The Council consequently considered that Cranbourne Park properties would derive a special benefit from the proposed works.

78. Casey City Council general rates were levied on capital improved values, Ms Fleischer noted. The Council considered it fair that the special rate should also be levied on capital improved values. The Cranbourne Park shopping centre dominated the Cranbourne shopping area. The Council's Senior Valuer had advised that 1994 rentals that had been applied for the subsequent general revaluation had been 2.5 to 3 times higher there than in the High Street commercial strip, and that there had been higher outgoings. He had observed that the turnover was therefore expected to be higher. Cranbourne Park properties might therefore be expected to receive the largest proportion of the special benefit to be gained from the proposed works. The disproportion between the Cranbourne Park Shopping Centre and the High Street retail strip made the proposed method of apportionment appropriate.

79. Regarding the objection as to exclusion of the "Codrington Street" premises, fronting the street parallel to High Street to the west, having a "Commercial Town Centre B" zoning,

Ms Fleischer agreed that office premises could also enjoy the psychological benefit of a more pleasant working environment, leading to an economic benefit to the owner. But the focus of the scheme was the retail area, to create a more pleasant environment so as to lead to an increase in economic activity in the town centre. The Cranbourne Town Centre Structure Plan distinguishes between the "main shopping centre" based on High Street, and the "main business precinct" which included the Codrington Street properties, and was intended to be a mixed use area comprising office, peripheral sales, service business and the like, and also residential. It was to be promoted as the major office activity node.

80. Ms Fleischer stated that there was no planning justification for thinking that the High Street streetscape works would increase passing trade in the office precinct. Moreover, the office precinct was still largely residential in fact. It would be premature to include it in a scheme such as the one being considered here.

81. Mr J C Henshall, an economist and town planner, and principal of Essential Economics Pty Ltd, told the Tribunal he had been involved in the Council's investigations of the proposed special rate scheme. He stated that he had concluded that benefits to both property owners and businesses in the Cranbourne town centre could be expected to flow from the proposed works. The works were expected to generate increased levels of economic activity as the town centre would become a more attractive and accessible place to visit for shopping and other business. Increased business levels and property values would constitute special benefits.

82. Mr Henshall acknowledged that there could be some benefit to property beyond the town centre as a "spillover" from increases in town centre property values. The special benefit was, however, expected to focus on town centre properties in High Street where the works were to be undertaken.

83. Mr Henshall suggested that the benefits to town centre businesses were important as the Cranbourne town centre was experiencing severe competition from other shopping centres serving the south-eastern metropolitan growth area, several of which were being improved and expanded. Recent studies had suggested that between 30% and 50% of retail spending by Cranbourne catchment residents escaped to centres beyond the catchment. The Cranbourne town centre needed to be improved in appearance, amenity, safety, ambience and function. Moreover, the Casey Retail Strategy, which was being reviewed, forecast that the town centre would need to accommodate up to 50,000 m2 of additional retail floorspace to meet the retail demand of the ultimate population.

84. Mr Henshall considered that the town centre comprised two components, namely the High Street strip shopping and services component and the newer freestanding and fully enclosed Cranbourne Park Shopping Centre, which also had a frontage to High Street. Household surveys conducted independently as part of the Council's research on the special rate scheme had shown that some 70% of shoppers in the town centre tended to shop both in High Street and at the Cranbourne Park shopping centre. The High Street businesses were essentially associated with convenience and service retail outlets, while the Cranbourne Park shopping centre was a sub-regional shopping centre providing a wide range of comparison shopping opportunities. Town planning strategies had long recognized the need to maintain and enhance the physical and functional integration of the overall town centre.

85. In relation to the payment of the special rate, Mr Henshall referred to statistics he had compiled. He noted that the owners of the Cranbourne Park shopping centre properties would become liable to pay 60% of the $150,000 to be raised. On the other hand, the Cranbourne Park shopping centre accounted for 70% of the total retail floorspace in the town centre (39,730 m2) and 80% of the estimated total annual retail sales ($150 million). By this test, he suggested, the rate the Cranbourne Park shopping centre owners were being called upon to pay was very reasonably low.

86. Mr Henshall made several comments on Mr Rogers' report. The report had spoken, he said, of refurbishment undertaken by the Cranbourne Park Shopping Centre that would benefit the town centre: the work had, however, been undertaken on private property in the expectation that the expenditure would be recouped. The report had claimed that 46% of patrons at the Cranbourne Park shopping centre used entrances with no direct physical relationship to High Street, that the Cranbourne Park entrances were almost totally internalized, and that Cranbourne Park "turn[ed] its back on High Street", the ultimate suggestion being that the Cranbourne Park shopping centre would gain little (if any) benefit from the streetscape works. In his view, all the Cranbourne Park customers entered and left at points in the town centre and contributed to the traffic congestion, noise and air pollution that the streetscape works were intended to ameliorate through visual improvements.

87. Mr Rogers' report had suggested that the cost of the proposed works should be distributed on a High Street frontage basis, claiming that the Cranbourne Park shopping centre had an 18.6% share of the relevant frontage. Mr Henshall considered that the "extent of frontage" argument disregarded the relative intensity of activities in the town centre, and the frontage share was actually 36.5% [but see as to this Mr Rogers' comment noted earlier], Mr Rogers' 18.6% figure having been derived by unjustifiably ignoring the Cranbourne Park centre's car park frontages. The report had suggested also that Codrington Street (immediately to the east of High Street) should be included in the scheme as a third north-south access route (the Cranbourne Park shopping centre's internal mall being represented as the second). Mr Henshall took the view that the works were to be carried out in High Street, and any special benefit would focus on the abutting properties.

88. Cross-examining Mr Henshall, Mr Morris asked what had been the basis of Mr Henshall's remark to the effect that household surveys conducted independently as part of the Council's research on the special rate scheme had shown that some 70% of shoppers in the town centre tended to shop both in High Street and at the Cranbourne Park shopping centre. Mr Henshall having expressed some uncertainty, he was invited to look at a copy of a report by

Dr Wolinski [as to whose evidence see later]. Mr Henshall agreed that an answer to a question asked in the second of two surveys conducted by Dr Wolinski appeared to have been the basis of information conveyed to him by Dr Wolinski orally and ultimately adopted in his own remark. He agreed that it did not seem that the survey answer could be readily reconciled with certain other survey answers.

89. Asked about his comparison between the Cranbourne Park Shopping Centre contributions and those of the High Street strip owners, Mr Henshall agreed with Mr Morris that retail profit margins were not uniform as between different types of retailing, and that a true comparison of benefits would need to consider profit rather than sales.

90. Mr Morris suggested a frontage basis for the rate to Mr Henshall. He raised several difficulties with this basis, including the fact that the works proposed were not spread evenly on a metre by metre basis, the question of what would be done with the car park frontages, and the extent to which frontage could distort the result where there was a narrow frontage to a large and valuable site.

91. Invited by Mr Morris to assume that it might be open to distribute the rate on the basis that some owners would pay on 100% of the capital improved value and others 50%, and asked whether he would then expect the Cranbourne Park Shopping Centre owners to pay less than the High Street owners, Mr Henshall said he would expect their rate to be lower.

92. Re-examined, Mr Henshall was asked whether his view was that there should be differential rates. He answered that, in an ideal world, you could reflect differences in benefits and costs in a differential rate, but that this would be extremely complicated and create an unworkable situation. It was more equitable to have an equal rate based on CIV. Overall, Mr Henshall's evidence supported the equity of rating Cranbourne Park as well as High Street, both being integral parts of the town centre, although having somewhat different functions. Mr Henshall was firmly of the opinion that rating on capital improved values was the most appropriate way to distribute costs.

93. Asked by Mr Duncan whether he would draw a distinction between the benefits to be enjoyed on the east and west sides of the north-south mall in the Cranbourne Park shopping centre, Mr Henshall said he did not see a difference.

94. Asked by Mr Duncan who would derive the increase in turnover and property value of which he had spoken if there were an increase in the number of people using the town centre, he said the increases would be general, but that the Cranbourne Park Shopping Centre (presently enjoying 80% of sales) would take the bulk of the benefit.

95. Dr J Wolinski, strategic planner and urban economist, and a principal of Ratio Consultants Pty Ltd, told the Tribunal he had been asked by the Council to prepare a report in relation to the special rate scheme. He had concluded that the special rate area was the most appropriate granted the nature of the proposed works and their location, the Town Centre Structure Plan, and the Cranbourne Planning Scheme zonings. In his opinion, the town had a clearly defined core, and clearly defined objectives. It was critical that High Street and Cranbourne Park Shopping Centre together should compete with other centres. No properties outside the area were, in his view, liable to obtain a measurable level of special benefit.

96. He noted that Mr Rogers had described the Cranbourne Park shopping centre as a "free-standing centre", had referred to the fact that it had undertaken its own refurbishment program, and had expressed the view that the benefit from the works that would be gained by the Cranbourne Park centre tenants would be significantly less than would be gained by High Street traders. It was clear, Dr Wolinski said, that in land use and traffic circulation terms, the Cranbourne Park centre could not be classified as a free-standing centre. It abutted the High Street strip, had an extensive frontage to High Street, and dominated the view of the town centre from the northern approaches. It utilized the traffic and access system of the town centre. It was an integrated part of the Retail Core Precinct. It relied heavily on a Council-owned public car park to the south that served both Cranbourne Park and the High Street strip. The Keysborough and Waverley Gardens centres were to be contrasted with it in these respects. In terms of the history of its development and of town planning controls and policies also, Cranbourne Park was to be seen as integrated with the town centre. The recent refurbishment and development proposals had had as one of their objects improved linkages with High Street.

97. Dr Wolinski discussed the interaction between High Street and the Cranbourne Park shopping centre. He referred to household surveys he had undertaken in Cranbourne and surrounding areas. He noted, in particular, a finding that, of visitors attracted to High Street as their first destination, 70.5% also shopped at Cranbourne Park on the same occasion. He made use of estimates of the total annual visits to each, and the total turnover achieved by each, to determine average amounts spent per visit to each. He then concluded that, for every additional dollar that might be spent in High Street as the result of the proposed works, some $2.18 would be spent at Cranbourne Park. Cross-examined later, he accepted that there were imperfections in the household surveys, and that his reasoning assumed the spending of average amounts. He concluded ultimately that the spending ratio he had derived was liable to be correct, although he had at one point accepted that comparative spending could be dollar for dollar.

98. Referring again to views expressed by Mr Rogers, Dr Wolinski suggested that rating on capital improved values would, if anything, understate the special benefit to be derived by Cranbourne Park shopping centre. He also expressed the opinion that the refurbishment of the Cranbourne Park centre, being for private purposes, was irrelevant to the financing of streetscape works in the public domain.

99. Dr Wolinski referred to Mr Rogers' evidence concerning commercially zoned land fronting streets parallel to High Street, which he identified as Codrington Street.

Dr Wolinski's evidence agreed with Ms Fleischer's that land on the western side of Codrington Street was in a commercial zone [Commercial Town Centre B under the Cranbourne Planning Scheme, and now Business 2 under the Casey Planning Scheme]. This area was earmarked for future office development under the Structure Plan, but was presently almost entirely residential in use and was unlikely to be developed for many years. It did not form part of the main shopping centre defined by the planning scheme. It would not derive a special benefit from the proposed works.

100. Dr Wolinski did not agree with Mr Rogers' suggestion that Codrington Street might be comparable with the internal mall in the Cranbourne Park shopping centre. His own view was that functional inter-relation was the test of special benefit. He thought the internal mall irrelevant to the special rate scheme.

101. Dr Wolinski rejected frontage as a measure of likely benefit. He also questioned

Mr Rogers' treatment of part of the Cranbourne Park shopping centre frontage as "inactive".

102. We refer now to concluding submissions made by Mr Duncan.

103. We have already referred to Mr Duncan's submission that the applicants bore an onus of proof in the proceeding, and as to the nature of the proceeding.

104. There were, Mr Duncan submitted, only two issues raised by the proceeding - whether a special benefit was to be derived by the applicants, and whether the distribution was unreasonable.

105. Mr Duncan submitted that none of the applicants had seriously contested that they were to derive some degree of benefit. The issue lay in the distribution of the cost.

106. In Masuda Pty Ltd & ors v City of Casey (1995) 14 AATR 191, Mr Duncan noted, the Administrative Appeals Tribunal had held that making the paving outside five properties in High Street uniform with other paving on the western side would not confer a special benefit on the owners of the abutting properties. It quashed the scheme. In doing so, he submitted, it had not applied the proper test. Mr Morris agreed that the decision was indefensible; but he wished to rely on the evidence given by the City Engineer in that case. This evidence referred to the importance of "lifting the appearance" of the High Street retail area, as the neighbouring Cranbourne Park Shopping Centre "has drawn significant public interest and provides competition for High Street traders" (p.191). Ms Fleischer, however, responded when this was put to her that the planners did not agree on the alleged competition, although there was a need to improve the strip because Cranbourne Park had drawn interest away. She stated that some shoppers preferred the shopping strip environment.

107. On the question whether the distribution was unreasonable, Mr Duncan referred to Raine Lodge Pty Ltd v Wyndham City Council (1998) 22 AATR 23, noting that the Administrative Appeals Tribunal had in that case described a distribution on the basis of capital improved values as being "probably as fair and equitable as any that could be devised". The rate in that case was for a shopping centre streetscape improvements scheme similar to the present scheme. The challenge came from the owners of a property next to a supermarket and of a hardware store, who sought to establish that they did not derive any "direct" benefit, and that their properties were remote from the area where the beautification works were concentrated. It was found that the commercial and aesthetic health of the town centre was relevant to both these premises, and they would derive special benefit. The Tribunal (at para 75) held that these premises enjoyed a benefit beyond that of the generality of property outside the town centre area; but other properties would benefit more directly. The more peripheral properties would be likely to have lower capital improved values, and thus pay less, by a "sort of self-adjusting device that produces a fairly equitable result".

108. In the present case, the owners of Cranbourne Park Shopping Centre argue that their share in a rate struck on the capital improved value for their whole centre ignores the relationship between benefit and distribution. The greater part of the rate is proposed to be borne by Cranbourne Park. A capital improved value will be fair, Mr Morris argues, where the degree of benefit is proportional to the value of the land. The works proposed here will primarily benefit owners in High Street by improving the pedestrian environment there. The evidence as to expenditure as between Cranbourne Park and High Street is flawed, he says; and it cannot be shown that all the occupancies which must be separately assessed will gain equally within the Cranbourne Park environment either.

109. Mr Duncan submitted that the evidence in the present case showed that the special rate would not bring about an unreasonable distribution. He submitted that it is not necessary to relate economic benefit to cost; the distribution of cost could be reasonable even though the benefit bears no relation to it.

110. Mr Duncan further submitted that conversion of the rate to a charge was not open to the Tribunal. He contended that Mr Morris' suggested alternative of converting the rate from a capital improved value to a frontage basis was a conversion to a charge. We do not have to consider whether that is correct, as we do not consider that a conversion of that nature would be appropriate.

111. Masuda Pty Ltd contended, in common with the other applicants, that the proposed works would not provide a special benefit. We deal with that ground of application below.

112. Mr Croymans also contended that the proposed works would be wasteful. His contentions are worded in terms of the ground set out in section 185(2)(b)(iv) of the Local Government Act. Mr Duncan submitted that the Tribunal did not have jurisdiction under this head. While we have already indicated that the ground in section 185(2)(b)(iv) is not available in a review of a streetscape beautification scheme not directed to road or drainage construction, Mr Croymans certainly made some telling criticisms of the design of the works and the sequence in which they were liable to be undertaken. However, the evidence as a whole suggests to us that there is a clear need to make the Cranbourne town centre more attractive for commercial purposes, and that the general nature of the proposed works is common to projects of strip centre improvement.

113. While Mr Croymans' submission about the sequence in which works are to be carried out follows a logical and sensible order, this scheme is only the relatively modest first stage of upgrading works. Mr Croymans has referred to the need for further drainage work, and the desirability of undergrounding the power lines. If, for example, the Council delayed the paving and tree planting until after the power lines had been undergrounded, the work might wait a very long time. The work has to start somewhere, and long term delay will only allow further decline in the competitive position of the shopping centre. Moreover, we accept that the streetscape plans presented were indicative rather than final proposals. The Council may well take the comments made about tree species, planting spaces and the need of traders to be visible from the street into consideration when making final choices about precise location and species of trees.

114. We turn now to the question whether the applicants are liable to derive a special benefit. We find that they are. Much of the evidence and argument concerned the relative positions of the High Street strip and Cranbourne Park. The bulk of the evidence indicates that the Cranbourne Park Shopping Centre and the High Street strip are, and must be, complementary in their functions. The Cranbourne Park Shopping Centre is a regional order shopping centre; the strip is a lower order retailing and services area. The Cranbourne Town Centre Structure Plan has as its first objective for the precinct promotion of its development "as the single integrated regional retail activity node within the Town Centre". We do not think the evidence gives any clear indication of the likely pattern of benefits to individual occupancies. The evidence does, on the other hand, suggest to us that each of the applicants will derive a special benefit (in the case of the Cranbourne Park applicants, in respect of the several occupancies). The scheme appears likely to make the Cranbourne town centre more comfortable, attractive and safer to visit. The scheme may well provide a low order of special benefit, possibly restricted to a slowing of escape expenditure to other towns in the region, but the scheme itself is quite limited.

115. We consider that it is appropriate to treat all the occupancies within Cranbourne Park Shopping Centre as benefiting from the scheme. Once patrons are attracted to the Cranbourne town centre, the survey evidence (even though some aspects of it are subject to doubts as indicated above) generally indicates that it is probable they will visit Cranbourne Park. Once inside, the internalized layout and tenancy mix will, in our view, tend to even out any effect from the relative remoteness of some individual shops from High Street. It is the intimate relationship of the Cranbourne Park tenancies to the rest of the main shopping precinct - both the retail strip and the parking areas - that creates the benefit to each occupancy in Cranbourne Park.

116. The Cranbourne Park applicants suggested that the Codrington Street commercial centre should have been included in the scheme area (by analogy with the internal mall of the Cranbourne Park shopping centre), but we consider that it was rightly excluded. The evidence indicates that the relevant Codrington Street area is intended primarily as an "office" precinct, retaining at present a substantial residential component. We do not see it as an extension of the main shopping centre precinct.

117. There remains the question whether the basis of distribution is unreasonable. This question was agitated mainly between the Cranbourne Park applicants and the Council. As we said earlier, we do not think the evidence gives any clear indication as to the likely pattern of benefits. If more patrons are attracted to the centre, the evidence is that both the strip and Cranbourne Park will benefit. There was conflicting evidence as to which would benefit most. It is even more difficult to put a figure on a slowing of escape expenditure. While there are clearly alternatives to a special rate on capital improved values, we see nothing in the evidence to suggest that levying a special rate on that basis is unreasonable in this case.

118. We note that the test is the "reasonableness" of the distribution, not its equity. While an inequitable scheme would no doubt be unreasonable, it may be that the "reasonableness" test allows some scope where it is difficult to quantify the comparative benefits as between one property and another. In Koklas v City of Richmond (1993) 10 AATR 329 at 337, the Tribunal stated, in the absence of argument on the point, that it is difficult to see that the distribution was unreasonable when every person liable to pay was paying the same rate in the dollar.

119. In Raine Lodge Pty Ltd v Wyndham City Council (1998) 22 AATR 23 at 42, the Tribunal held that:

"To be reasonable, the basis must be understandable and workable. Some bases, attempting to achieve ultimate levels of equity, whether mathematical, equitable or other, could become so complex, unmanageable or expensive as to cease to be reasonable. The ground is not that the basis is not the ultimate equity, but rather that it is unreasonable. There need not be any one possible basis that answers the description of reasonable. Several, or many variations of several possible bases, may be beyond challenge on the ground of unreasonableness. A variety of possible bases may all be reasonable.".

120. While we should not be taken as agreeing with every aspect of the Raine Lodge decision on the nature of the review under section 185, we consider this to be a useful statement, except that "a single possible basis" would appear to be more accurate in the third last sentence than "any one possible basis".

121. Of the actual schemes mentioned to us, capital improved value appears to be the most common basis. It has the advantage that in the case of a scheme designed to improve the attractiveness and commercial success of the town centre, the existing differences in the capital improved value will provide an inbuilt element of adjustment between the premises in the best position to take advantage of an increase in patronage, and those less fortunately situated. Its appropriateness is supported by the evidence of Mr Henshall, which we find more convincing than the evidence supporting the frontage-based alternative suggested by

Mr Morris. We agree with Mr Henshall's criticism of the frontage basis, referred to above. The proposed basis is also uniform and simple to administer, unlike the "differential" alternative. We find that the basis of distribution is reasonable.

122. We accordingly propose to confirm the special rate.

Environment Act 1987

Appeals Tribunal Act 1975

Matsuda PL vCasey CC [2000] VCAT 654 (29 January 2000)

At a glance

Court

Decision date

Source

Judgment (159 paragraphs)

Matsuda PL vCasey CC [2000] VCAT 654 (29 January 2000)

Legislation Cited (5)