4.1 The question of law as to whether the responsible authority is entitled to charge for a road, assuming it was constructed to its satisfaction, involves the statutory interpretation of the application of subsection 163(7) of the Act.

4.2 The merits review involves the grounds of allowable challenge under subsection 185(2) of the Act. As I have said before these grounds are very narrow and they are factually based. I accept the determination in Walter & Ors v Manningham City Council [1999] VCAT 987 (31 May 1999) that reviews on the statutory grounds are merits reviews, where the Tribunal's duty make up its own mind whether the decision of the responsible authority was on the material put before the Tribunal, the correct or preferable one: see Drake v Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 at 589.

4.3 I will address each of the applicants' concerns commencing with the question of law as to whether the responsible authority is entitled to charge the contributing owners for its reconstruction.

5.1 The applicant objectors appeared in person and only raised the question as to whether the responsible authority was entitled to charge the existing residents generally; but I consider they squarely raised the factual point that, assuming that Stenson Road or a significant number of its identifiable road making components, as defined in Section 12(3) of the Local Government (Consequential Provisions) Act 1989, was constructed to the satisfaction of the responsible authority, then that responsible authority could not in the future seek contributions towards the costs of reconstructing that street. This calls for an interpretation of subsection 163(7) of the Act. Subsections 163(7) and (8) are in the following terms:

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

(8) For the purposes of subsection (7) and section 221(b),

"construct" and "component" have the same meanings as in section 12 of the Local Government (Consequential Provisions) Act 1989.

5.2 Mr Lucas for the responsible authority submitted that, however unpalatable it may be, the responsible authority was entitled to declare a special charge in relation to the reconstruction of Stenson Road notwithstanding the provisions of subsection 163(7). He submitted the subsection was not applicable on a number of grounds.

5.3 Firstly, Mr Lucas submitted that to come within the subsection a street had to be "a private street" within the meaning of Section 571(1) of the Local Government Act 1958 ("the old Act"). He submitted that Stenson Road was not such a private street. No parties took issue that Stenson Road was a road reservation on Crown Land, as indicated on the Parish Plan referred to above.

5.4 A private street within the meaning of Section 575(1) of the Act is:

(ii) which is formed or set out on private property or on property of the Director of Housing or an urban renewal authority; or

(iii) which is formed or set out on land which at the time of the formation or setting out of the street road lane yard or passage was private property;

(c) any street road lane or passage formed or set out on land of the Crown or of any public body in such manner as to form means of back access to or drainage from property adjacent to such street road lane or passage;

or any part of the length thereof, whether it is or is not a public highway.

5.5 Mr Stenson submitted that Stenson Road did not comply with any of the criteria in the definition and is not a private street within the meaning of subsection 575(1) of the old Act. Further, he submitted it was not covered by subsection 575(3) of the old Act in that it was not a street set out on Crown Land that had been declared by notice to be a private street.

5.6 I accept Mr Lucas' submission that Stenson Road was not a "private street" within the meaning of Section 575(1) of the old Act; and, therefore the protection of 163(7) of the Act did not apply. Therefore, there was not statutory prohibition on the responsible authority charging the adjacent landowners for the reconstruction of Stenson Road.

5.7 Mr Lucas submitted a further argument against the application of subsection 163(7), being that the prohibition against any further special charges relates only to those private streets constructed under the old Act as private street schemes or the current Act as special charges schemes. I do not consider that the subsection on its wording requires this. The stipulation in the subsection is that the private street is "constructed wholly or partly at the cost of the owners ......... to the satisfaction of the Council". Therefore, I consider it may well be argued that where it can be established that the standard of construction was to the satisfaction of the responsible authority then, prima facie, the responsible authority would not be entitled to recover any future costs in respect of the reconstruction of that private street.

5.8 The applicants submitted that in terms of fairness and equity the responsible authority could not legally charge them a second time for the construction of Stenson Road. I am afraid that legally this contention has no power or relevance. The power in the Act to declare a special charge for the reconstruction of a public road is exactly the purpose of the power. In fact in 1993, the then government proposed to delete the protection in subsection 163(7) on the basis that contributions to public roads could be sought at any time and private streets should not have a special protection: see the Ministers Second Reading speech of 28 October 1993 and Revision 3 of the Local Government (Miscellaneous Amendments) Bill dated 29 October 1993. The removal of subsection 163(7) was resisted and was dropped from the Bill. However, from the Minister's speech it is obvious it is the purpose of the legislation to allow multiple contributions to be levied for a series of reconstructions of a public road. The contributing residents may feel justifiably outraged but the current law says the responsible authority is entitled to charge them for contributions to the special charge for the reconstruction of Stenson Road.

6.1 The applicant's allege that a reconstruction of Stenson Road would not provide them with any "special benefit". This is the first ground by which contributors may challenge a special charge scheme under Section 195(2)(b)(i).

6.2 I accept Mr Lucas' submission that the leading authority setting out the nature of a "special benefit" is Gibbs J in City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 327:

"A work is of special benefit to a portion of a local authority area if the lands comprising that portion derive from the works a benefit which is not shared by other lands or a benefit which is additional to, or greater than, that which is derived by other lands".

6.3 The benefit does not have to be direct, eg. a monetary benefit:

Raine Lodge Pty Ltd & Ors v Wyndham City Council (1998) 22 AATR 23.

6.4 As observed by the Tribunal in Walter & Ors v Manningham City Council (1999) VCAT 987 (31 Mary 1999):

"There may, however, be many improvements made to a piece of land or to its locale which make it generally a more desirable place to live or operate from but which may not, for reasons relating to the quality of the locality, yield an increase in the value of the land commensurate to the expenditure or indeed any increase at all".

6.5 As noted in the subparagraph above it is irrelevant whether the special benefit is commensurate or has any relationship to the amount of the special charge. See Walter (Supra). On this application the applicants submitted that there was no special benefit as:

(a) the loss of the proposed park and the 40m strip of road reserve and the loss of the views to the proposed park were a detriment that more than out-weighed any special benefit they derived from the scheme;

(b) the making of the road was not a special benefit as they had a fully constructed road in any case; and,

(c) whilst they agreed the road was in a poor condition this was due to the failure of the responsible authority to provide adequate and reasonable maintenance, this they say was acknowledged in the report of Alan Bowman & Associates, Consulting Engineers who investigated the current condition of the Stenson Road pavement for the responsible authority.

6.6 In relation to the loss of the proposed park and loss of views I consider that this would be a significant detriment to the land owners; however, this detriment does not flow from the special charge scheme but from the rezoning of the land and its sale by the Government including the 40m balance of Stenson Road reservation for residential development. This detriment has no relevance to the special charge scheme and I do not consider it can be taken into account.

6.7 In relation to the allegation that the road was already constructed and that its poor condition was due to the responsible authority's lack of maintenance, I consider this ground would have merit if Stenson Road had originally been built to the then responsible authority's standard for suburban streets, which comprised a total 305m deep pavement with a 55mm asphalt course constructed in two layers. The road constructed by the developer in the mid 70s consisted of a grit seal as the wearing course. I accept Mr Martin's evidence and I consider myself that a grit seal does not have the same wearing properties as a substantial asphalt layer of more than 50mm. I do not consider Mr Pedler's evidence that a grit seal has approximately the same strength as an asphalt course, is relevant. It is the wearing ability that is the significant factor and I consider a substantial asphalt course has more wearing ability than a grit seal. Therefore, even though I accept there was a lack of maintenance by the responsible authority, I find that the failure to provide an asphalt surface during the construction of the road was the main reason for its breakdown and therefore the making of the road will provide some, albeit very small, benefit to the abutting owners.

6.8 The responsible authority produced evidence from an expert valuer, Mr D Matler, BMT Valuers, who gave evidence that it was his opinion that:

"There will be enhancement in the resale value of between 5% up to 8% for the typical existing residents on the northern side of Stenson Road as a result of the full reconstruction of the presently dilapidated existing road".

6.9 Mr Matler's evidence was well researched with a careful analysis of comparable sales in the area. I accept his evidence.

6.10 Therefore, the applicant's do not make out the ground that this special charge scheme does not give them a "special benefit" and this ground is rectified.

7.1 The applicant's submit that the distribution of the charge amongst the contributors is unreasonable and unequitable because:

(b) there is an inconsistent application of the responsible authority's policy for the construction of unmade streets; and,

(c) the owner on the south side of Stenson Road is not contributing to the Special charge scheme and is not bearing the appropriate costs for the benefit received by that southern owner.

7.2 On the reading of this ground I consider it only applies to the basis of distribution between those people who are actually contributors to the special charge scheme. On my interpretation of the ground therefore, the objection that the contribution of the owner on the south side is insufficient is not relevant as that owner is not a contributor to the scheme.

7.3 Secondly, the applicants' raised the responsible authority's failure to apply its adopted policy with respect to road construction. The reasons Mr Martin gave that the Council did not follow its adopted policy were that:

(a) properties having frontage without property access to Stenson Road;

(b) properties with sideage to Stenson Road and the street address is to an abutting road;

(d) irregular shaped blocks that also contain sizeable drainage easements, ie. land that is unlikely to be built over.

7.4 I do not consider any of these grounds as a reasonable basis for not following the Council's adopted policy. However, the policy is for unmade streets whereas this is a road reconstruction and as such is not referable to this special charge scheme.

7.5 Therefore, I do not consider this ground is made out by the applicants.

8.1 The responsible authority submits, via the evidence of Mr J Roan, Manager for Statutory Planning with the responsible authority, and the submissions of Mr Lucas that there are relevant policies or specific objectives in the planning scheme relating to the proposed road reconstruction, as referred to in subsection 185(2)(b)(iii) of the Act. Mr Roan referred in his evidence to many objectives in the local planning policy framework that refer generally to transport routes and the construction of streets. He referred to specific policies in the planning scheme that mention Stenson Road; however, these policies do not refer to its reconstruction. He also made reference to Clause 52.03 "Specific Sites and Exclusions"; one of the purposes of which was to recognise specific controls designed to achieve a particular land use and development outcome. Under this clause the only specific land referred to is land on the south side of Stenson Road, known as the "Stenson Road Subdivision".

8.2 However, there is no reference in any of the documentation in the planning scheme, or in documents produced to the Tribunal, that made specific reference to the reconstruction of Stenson Road or the defraying of that cost in part by the declaration of a special charge; nor, of any power or function to be exercised in relation to the reconstruction of Stenson Road.

8.3 What are the relevant policies and specific objectives referred to in this ground. The reference to "specific objectives" is just that, they are objectives that can be reasonably said to be sufficiently specific when considered in relation to the power or function for which the special charge is to be made; or, further, that the objectives relate sufficiently to the special charge under review. Similarly, I consider a similar meaning can be given to "relevant policies". I consider that the policies and objectives referred to in this ground of the Act need to be sufficiently specific to be seen to be clearly referrable to the proposed works or to the use, preparation and administration of special charge schemes.

8.4 I consider there are no policies or objectives in the planning scheme that meet the criteria of relevant policies or specific objectives; therefore, I consider the ground under subsection 185(2)(b)(iv) has no relevance in this review.

8.5 Therefore, I respectfully must disagree with the Tribunal in the decision of W. & S. Slatters & Ors v Frankston City Council [2000] VCAT 2349 (30 November 2000). In that case the Tribunal held at paragraphs 50 and 51 that (to paraphrase) planning schemes contain a superabundance of policies and objectives and it would seem unlikely that a new format planning would ever be lacking relevant policies and objectives. As I have discussed above, I consider the relevant policies or specific objectives referred to in this ground are policies or objectives that are clearly relevant to unmade street construction, street augmentation or street reconstruction either, generally or in relation to the specific works. I do not consider that this Brimbank Planning Scheme contains any relevant policies or specific objectives that meet this criteria.

9.1 This ground is subject to the threshold proviso of "if the planning scheme for the area does not contain any relevant policies or specific objectives". I have held above that the planning scheme does not contain such policies or objectives and it is thereby available as a ground to the applicants. Therefore, I consider this ground to be relevant.

9.2 The applicant's major contention is that Stenson Road was fully and satisfactorily constructed by the original owner and, therefore the works are unreasonable; especially in view of the responsible authority's lack of maintenance.

9.3 The import of the applicant's contention is that the Stenson Road reconstruction is unnecessary from their view point; however, the reconstruction of Stenson Road may well be necessary from the viewpoint of the responsible authority. The proper course at this point is to interpret the words used to frame this ground to ascertain from whose perspective is the necessity or reasonableness of the works assessed; and, further, in what manner are the necessity of the works assessed.

9.4 The words used in the ground contain a number of definitional limitations. Firstly, the works must be "unnecessary, unreasonable, excessive, insufficient, unsuitable or costly" when measured against the second limitation of regard to "the locality or the environment". The third limitation refers to the probable use of the road or drainage of the land.

9.5 Look at the second and third definitional limitations first, a normal reading of the words used would not mean that the assessment of "unnecessary etc". is made from the viewpoint of a contributor; rather, it is to be made from the actual purpose and function of the works, that is from the viewpoint of the responsible authority. So that, for example, if Stenson Road was in a sparsely inhabited rural area and there was a rough unmade country track coming into one end and the same rough track leaving at the other end, yet the responsible authority intended to fully construct this section of road and charge the abutting owners, it could be said in context of the works in their locality and their probable use that they are unreasonable or, excessive, etc. even when assessed from the viewpoint of the responsible authority.

9.6 Obviously, Stenson Road requires reconstruction and it is the responsible authority's opinion, which I consider not unreasonable that Stenson Road should be constructed with a pavement of 7.5m from back of kerb to back of kerb with a pavement depth of 430mm. These are reasonable works in the circumstances and given the current state of Stenson Road, necessary; therefore this ground is not made out.

9.7 I respectfully disagree with the decision of the Tribunal in Ginnivan & Ors v Shire of East Gippsland [2000] VCAT 1663 (6 August 2001) to the extent that this decision assessed the necessity and reasonableness of the works from the viewpoint of the contributors to the special charge scheme.

10.1 Therefore, I do not consider that any of the grounds of subsection 185(2) are made out and the application for review must be dismissed and the decision of the responsible authority is affirmed.

10.2 Given the narrow width of the grounds of review I can only reiterate and endorse the advice of the Tribunal in Walter & Ors v Manningham City Council [1999] VCAT 987 (31 May 1999) that:

The existence of the review power under Section 185 of the Local Government Act 1989 has served, in the case of these applicants (and we suspect many others) as a trap and a delusion. It is clear from the submissions that they made that they were under the misapprehension that this Tribunal was at liberty to reopen the entire issue of the special charge. As our reasons show, the grounds upon which we could interfere were exceedingly narrow. We would advise any ratepayers contemplating mounting proceedings such as these to consider jointly obtaining legal advice to satisfy themselves as to whether the costs involved in filing fees and the time and emotional stress involved in attendance at the review hearing are justified by the prospects of success.

10.3 A course that may have given more prospects of success would have been to apply under section 185AA of the Act for a declaration that the responsible authority's declaration of the special charge was invalid.

10.4 I will make no order as to costs subject to no party making a contrary submission within 21 days. Parties would be aware that the normal order in the Tribunal is that each party bear their own costs.