Plaintiff v Defendant

1 Bayside City Council ('Bayside') seeks leave to appeal and, if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal ('Tribunal') in Tribunal proceeding no P1256/2018[1] insofar as it determined not to impose a condition requiring the permit holder Stockland Development Pty Ltd (ACN 000 064 835) ('Stockland') to pay a drainage levy in accordance with the Bayside Drainage Development Contributions Plan ('Bayside DDCP'). In its decision, the Tribunal directed that a permit be issued for the use and development of land at 695-707 Hawthorn Road, Brighton East ('subject land') as a retirement village ('development').[2] The proceeding is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act')

2 The subject land is located within the area covered by the Development Contributions Plan Overlay ('DCPO') sch 1 ('DCPO1') of the Bayside Planning Scheme ('planning scheme'), which has been approved under the Planning and Environment Act 1987 (Vic) ('PE Act').

3 The development includes 23 one-bedroom independent living units, 152 two-bedroom independent living units and 35 three-bedroom independent living units, and involves the construction of six separate buildings ranging from three to five storeys.[3]

4 Each independent living unit is self-contained and includes:

(c) dining and living spaces in an open plan configuration;

On a proper construction of [cl] 45.06 of the [planning scheme] and the [Bayside DDCP] should the planning permit granted by the Tribunal include a condition requiring the payment of a development contributions levy?

1. Clause 45.06 of the [planning scheme] and the [Bayside DDCP] impose a levy on all 'residential development' within an area covered by [DCPO1] of the [planning scheme].
2. The proposal before the Tribunal was for 'residential development'.
3. The levy is calculated by reference to the number of 'dwellings' in a development.
4. Part 10 of the [Bayside DDCP] defines 'dwelling' for the purposes of the [Bayside DDCP] by reference to the 'Land Use Terms Table' contained in [cl] 73 of the [planning scheme]. The definition identifies development which is adapted to the use described by the planning scheme definition of 'dwelling', including any such development contained within other land uses in the 'Accommodation group'.
5. The approved development for a retirement village contains 'dwellings' for the purposes of the [Bayside DDCP].
6. The Tribunal misdirected itself by:
   1. narrowly interpreting the criteria in the [Bayside DDCP] by reference to the classification of the primary purpose of the approved 'use', rather than in accordance with the statutory purpose of the [Bayside DDCP] which is to identify particular types of development for the purpose of imposing a development contributions levy; and
   2. incorrectly finding (or assuming) that development for the primary 'use' purpose of a 'retirement village' could not (or does not) also contain 'dwellings' within the separate meaning of (and for the separate purpose of) the [Bayside DDCP].

1. the purpose of the [Bayside DDCP] and the development contributions framework provided by Part 3B of the PE Act and [cl] 45.06 of the [planning scheme];
2. the ordinary meaning of 'residential development'; and

1. the specific and extended meaning of 'dwelling' as defined and described in the [Bayside DDCP];

the Tribunal should have found that a development contributions levy is payable and that the 'independent living units' within the approved retirement village are properly to be considered dwellings for the purposes of calculating that levy.

8 Stockland did not appear at the trial and indicated that it would abide by the result.

9 Part 3B of the PE Act is concerned with development contributions. Part 3B authorises the inclusion of development contributions plans ('DCPs') in planning schemes, and regulates their nature and content.

a planning scheme may include one or more [DCPs] for the purposes of levying contributions to fund -

(a) the provision of works, services and facilities in relation to the development of land in the area to which the plan applies;

A [DCP] may provide for either or both of the following -

(a) the imposition of a development infrastructure levy;

(b) the imposition of a community infrastructure levy -

in relation to the development of land in the area to which the plan applies.

(a) specify the area to which it applies; and

(b) set out the plan preparation costs, works, services and facilities to be funded through the plan, including the staging of the provision of the works, services or facilities; and

(c) relate the need for the plan preparation costs, works, services and facilities to the proposed development of land in the area; and

(d) specify in respect of each of the plan preparation costs, works, services and facilities -

(i) the amount of the plan preparation costs and the estimated cost of the works, services or facilities; or

(ii) the standard levy applicable to the plan preparation costs, works, services or facilities; and

(e) unless a standard levy is applied, specify the proportion of the total estimated cost of the plan preparation costs, works, services and facilities which is to be funded by a development infrastructure levy or community infrastructure levy or both; and

(f) specify the land in the area and the types of development in respect of which a levy is payable and the method for determining the amount of levy payable in respect of any development of land;

...

A [DCP] may -

(a) exempt certain land or certain types of development from payment of a development infrastructure levy or community infrastructure levy or both; and

(b) provide for different rates or amounts of levy to be payable in respect of different types of development of land or different parts of the area.

14 If an application for a permit to carry out a development is made on land that is subject to a DCP, s 46N(1) provides that a responsible authority must include a condition in the permit that the applicant: :

(a) pay the amount of the levy to the relevant collecting agency within a specified time or within a time specified by the collecting agency; or

(b) enter into an agreement with the relevant collecting agency to pay the amount of the levy within a time specified in the agreement.

15 Section 46H contains a definition of the term 'dwelling'. However, as the sole purpose of the definition is to limit the contribution that can be made by a community infrastructure levy under s 46L, it is unnecessary to consider this definition further.

(a) Part 3B of the PE Act is concerned with development contributions.[4]

(ii) the land in the area in respect of which a levy is payable;

(iii) the types of development in respect of which a levy is payable; and

(iv) the method for determining the amount of levy payable.[5]

(i) exempt certain land or certain types of development from payment of a levy; and

(ii) provide for different rates or amounts of levy to be payable in respect of different types of development or different parts of the area.[6]

17 Clause 45.06 of the planning scheme provides for the preparation of the Bayside DDCP. Clause 45.06 sets out the purposes of the DCPO, which includes:

To identify areas which require the preparation of a [DCP] for the purpose of levying contributions for the provision of works, services and facilities before development can commence.

18 Clause 45.06-1 requires (among other things) that a permit for development must:

(a) be consistent with the provisions of the DCPO; and

(b) include any conditions necessary to give effect to any contributions or levies imposed, conditions or requirements set out in the DCPO.

19 Clause 45.06-2 deals with the preparation of the Bayside DDCP, effectively adopting into the planning scheme the requirements of s 46K(1) of the PE Act.

20 Schedule 1 to cl 45.06 briefly summarises the total costs of the scheme, the total contribution to be made by residential and non-residential land, and the exemptions from the Bayside DDCP.

(a) residential development that does not create any additional dwellings;

(b) commercial development that does not create any additional floor space; and

(c) development on public land.

22 The Bayside DDCP was prepared in December 2014 by a strategic planner. It is not drafted as a statutory instrument or legal document.

23 Table 1 of ch 1 of the Bayside DDCP imposes charges for drainage infrastructure development. 'Residential development' is charged $2,000 per ground floor dwelling (excluding a single dwelling on a lot), while an upper floor dwelling or flat is charged $1,000. Charges are also imposed on an area basis for 'Non-Residential Development' whether in a Commercial Zone/Mixed Use Zone or in a Residential Zone. Chapter 1 is consistent with the imposition of a drainage infrastructure charge on all types of development unless exempted.

24 Chapter 2 sets out the purposes of the Bayside DDCP, which are to:

(a) respond to a need to fund essential improvements and upgrades to the drainage network to support expected population growth in the Bayside municipality to 2031;

(b) ensure the cost of drainage network upgrades is equitably shared between existing and new development; and

(c) provide details of the financial contribution to be made by proponents of new development towards projects that will service the catchment in which development is undertaken.

25 Section 3.1 describes the strategic basis for the Bayside DDCP. The Bayside DDCP is required because:

(a) growth is expected and supported in the Bayside municipality by State and local policy;

(b) the existing underground drainage network has insufficient capacity to accommodate this growth without further investment in capacity upgrades;

(c) Bayside must undertake progressive delivery of the necessary upgrades in order to meet the needs of the growing community;

(d) the costs associated with capacity upgrades to support new development are significant; and

(e) Bayside will require new development to contribute to a portion of the cost of drainage system upgrades.

26 Chapter 4 provides that the area of the Bayside DDCP is the entire Bayside municipality.

27 Section 4.2 describes the rationale for the Bayside DDCP in terms that include:

(a) additional development within each catchment area will contribute to the overall downstream flows within that catchment on an equal basis; and

(b) the contribution towards drainage upgrades within each catchment will be made by new development within that catchment area on the basis of:

• (i) the type of new development undertaken; and
• (ii) the likely amount of runoff generated by it in proportion to a demand unit.

28 Section 5.1 states that the need for drainage infrastructure upgrades, and the nexus between new development and infrastructure projects, have been determined having regard to:

(a) the capacity of the existing drainage infrastructure in each catchment;

(b) the expected rates of growth (residential and commercial) in each drainage catchment;

(c) the expected increase in impermeable surfaces penetrated by new growth in each catchment; and

(d) the potential drainage projects required to support the growth in each catchment.

29 Section 5.3 describes the expected new development for both residential growth and commercial growth.

30 Section 5.4 states that the increase in hard surface area caused by new development is used as the basis for calculating demand units within the Bayside DDCP. This is calculated for medium, high density, and non-residential development in the Residential Zone, as well as for commercial and residential development in the Commercial Zone.

31 Chapter 6 states that levies to be paid by new development were derived from an analysis of:

(a) the share of use by new development as a proportion of the growth that has occurred within the municipality over time;

(b) the amount that Bayside can commit to drainage capacity upgrades over the next 20 years (both from the Bayside DDCP and other revenue); and

(c) demand units (increased hard surface area) to establish unit rates.

32 Section 6.4 states that unit rates are calculated based on a 49% contribution to be collected by the Bayside DDCP, shared equally amongst the total number of projected demand units identified in each catchment.

33 Section 6.6 sets out the levies payable by individual development and provides (among other things) that:

(a) each additional dwelling with a ground floor in a residential or mixed use zone will contribute one demand unit; and

(b) each additional dwelling or flat within a multi dwelling 'apartment type' building in a residential or mixed use zone will contribute 0.5 demand unit.

34 Section 7.1 lists as an exemption from the Bayside DDCP '[n]ew residential development that does not create additional dwelling/s', which includes 'any extension to an existing dwelling or the replacement of an existing dwelling with a new dwelling'.

35 Section 7.2 states in substance that the levy applies to all residential, commercial and privately owned land within the Bayside municipality.

36 Chapter 10 contains definitions applicable to the Bayside DDCP. They include:

Dwelling: as defined with the Land Use Terms Table of the [planning scheme]. It includes any dwelling contained within the Accommodation Group identified under [cl 75.01] of the [planning scheme].

37 The question of law that arises in this proceeding involves the construction of this definition.

38 The presiding member of the Tribunal was legally qualified and decided whether a development contribution was required as a question of law.[7]

39 After referring to relevant provisions of the Bayside DDCP, the Tribunal noted that the subject land was residential land. The Tribunal said:

'Residential development' is... not defined in DCPO1, the [Bayside DDCP] or elsewhere in the [planning scheme]. The question does not turn on this point and it suffices for me to tentatively conclude that the primary purpose of the proposal, indeed any retirement village, is to provide premises where people may permanently reside and, on this reasoning, the proposal may be characterised as residential development.[8]

40 The Tribunal then turned to the definition of dwelling in the Bayside DDCP:

[T]he definition of dwelling in the [Bayside DDCP] has two arms. The first arm provides, in effect, that the proposal comprises one or more dwellings if, in effect, the use of the accommodation units referred to as 'independent living units' are use for dwellings as defined in the Land Use Terms Table of the [planning scheme].

That table is currently found in clause 73.03 of the [planning scheme]. In it, use for a 'dwelling' is defined as 'a building used as a self-contained residence' and must include four specified features and may include 'outbuildings and works normal to a dwelling'. It is a definition of use and not development and the question is not resolved by examining the type of development in the proposal. The question is whether the proposal is properly characterised as a use for Dwellings or use for Retirement village.[9]

41 The Tribunal then referred to an earlier decision of Code M[10] in Casey City Council v Blue Hills Residences Pty Ltd.[11] In this decision, the presiding member held that a retirement village of 273 independent living units and other facilities including serviced apartments, a nursing home and communal facilities was a multi-dwelling development and liable for a development contribution levy on 'residential development'.

42 The Tribunal held that it would not follow the reasoning in that decision, which should be distinguished on the facts.[12]

43 The Tribunal then posed the question that had to be considered in these terms:

[W]hether the real and substantial purpose for which the subject land would be used would be for dwellings or a retirement village as those uses are defined in the [planning scheme].[13]

44 The Tribunal answered the question in these terms:

[D]evelopment for an independent living unit in a retirement village may look much like development for a dwelling. In this proceeding, the independent living units are generously dimensioned and fitted and appear similar to generous apartments. However, that is irrelevant to deciding whether the use of the independent living units is for the real and substantial purpose of dwellings or a retirement village. An independent living unit, if occupied by retired persons or the aged, might still be capable of being characterised as a dwelling.

However, it is the restriction on occupation of the independent living units by persons who are not retired or the aged plus the extensive nature of the communal facilities that makes the real and substantial purpose of the proposal as for a retirement village and not for dwellings.[14]

45 Turning to what it described as the second arm of the definition of 'dwelling' in the Bayside DDCP, the Tribunal held the following:

The proposal would be a Dwelling if it included a Dwelling in another use included in the Accommodation group. Some of the other uses in the Accommodation group include a Dwelling. Some do not. The ones that do include Group accommodation, Residential village and Caretaker's house.

The meaning of this expression is unclear. It might mean a dwelling in a Group accommodation, Residential village and Caretaker's house. Alternatively, it might mean a Dwelling that is included in but not part of a Group accommodation, Residential village and Caretaker's house. Fortunately, in this proceeding, it makes no difference. To come within the second arm, the use must be a Dwelling that is part of a use that is not characterised as a Dwelling but that could be characterised separately as a Dwelling. That is not the case in this proceeding.[15]

46 As a result, the Tribunal held that the development was not covered by either arm of the definition of 'dwelling' and was exempt from levy.

47 Finally, the Tribunal considered whether the specified exemptions under the Bayside DDCP include a retirement village:

A schedule may exempt 'types of development' from payment of a levy. 'Residential development that does not create any additional dwellings' is an exempted development type. [Bayside] submits there is no specific exemption for a retirement village development, either in DCPO1 or the [Bayside DDCP], and therefore the proposal is not exempt. Stockland submits the proposal does not include any dwellings and therefore does not create any 'additional dwellings' and must therefore be exempt. It is uncertain whether the proposed development is exempt.

I doubt that it is because the word 'additional' connotes the need for existing development to be one or more dwellings, which is not the case in this proceeding. However, as I found that no levy is payable in respect of the proposed development, it is unnecessary to make a finding about whether an exemption applies.[16]

48 The principles of statutory construction are well established.[17] In Project Blue Sky Inc & Ors v Australian Broadcasting Authority, the plurality of the High Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"... Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision...

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[18]

49 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), the High Court said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[19]

50 The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[20]

51 In CIC Insurance Ltd v Bankstown Football Club Ltd, the plurality of the High Court said:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[21]

52 These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting a subordinate instrument, a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object.

53 An important consideration in the interpretation of subordinate legislation was stated by Lord Reid in Gill v Donald Humberstone & Co Ltd:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence... They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament... Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.[22]

54 While these principles apply to statutes and subordinate instruments, they are also helpful in interpreting incorporated documents such as the Bayside DDCP.

(a) the Bayside DDCP was concerned with development and not with land use;

(b) the intent underlying the Bayside DDCP was to cast the net widely to ensure that all residential development was levied;

(c) the second arm of the definition of 'dwelling' in ch 10 of the Bayside DDCP needed to be attributed some meaning beyond what was already intrinsic in the statutory meaning of the word;

(d) the second arm of the definition of 'dwelling' could be given a meaningful interpretation;

(e) the words 'any dwelling' used in the definition of 'dwelling' were intended to be widely cast; and

(f) the Tribunal's interpretation gave rise to an anomalous exemption, which is not mentioned in the Bayside DDCP.

56 The task of the Tribunal was to determine whether the development fell within the definition of 'dwelling' in ch 10 of the Bayside DDCP.

57 In Derring Lane Pty Ltd v Port Phillip City Council (No 2), Balmford J considered whether a hotel was a 'residential building' or a 'commercial building'. Her Honour said:

As to "residential", the relevant meaning given in... the Oxford English Dictionary... is:

'Serving or used as a residence; in which one resides.'

That definition depends on the meaning of "residence" and "reside". The relevant meanings of "residence" in the Dictionary are:

'To have one's usual dwelling-place or abode; to reside.

The circumstance or fact or having one's permanent or usual abode in or at a certain place; the fact of residing or being resident.

The place where one resides; one's dwelling-place; the abode of a person (especially one of some rank or distinction).

A dwelling, abode, house, especially one of a superior kind; a mansion.'

The relevant meaning of "reside" in the Dictionary is:

'To dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.'

...In Port Phillip City Council v Domain Hill Properties Pty Ltd Byrne J... found that that building, being constructed with the purpose of providing residential accommodation, was properly called a "residential building"...:

'In common usage the word ["residential"] in conjunction with "building" refers to the physical characteristics and intended use of the building rather than its actual use. Accordingly, it covers an unoccupied house. On the other hand, it would not be usual to refer to a factory or a barn as a residential building merely because one or more people happened to be living there.'

...

On that basis, the phrase "residential building" must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode.[23]

58 Words like 'dwelling' and 'residence' are protean words and can assume different shades of meaning depending on the context. Where words such as these are capable of assuming more than one interpretation, the purpose or object underlying the provision, the text actually used, and the context in which the word is found must be carefully considered.

59 Consideration should also be given to the fact that the document to be construed was not drawn by a lawyer. It should be construed as addressed to the wider community, and interpreted so as to lead to a practical and reasonable result.

60 Adopting the Tribunal's language, the definition of 'dwelling' in the Bayside DDCP has two arms. The first arm includes premises that are a 'dwelling' as defined in the planning scheme.

61 'Dwelling' is defined in the planning scheme to mean:

A building used as a self-contained residence which must include:

(a) a kitchen sink;

(b) food preparation facilities;

(c) a bath or shower; and

(d) a toilet and wash basin.[24]

62 The second arm of the definition states that 'dwelling' includes any dwelling contained in the Accommodation Group identified under cl 75.01 of the planning scheme.[25]

63 As a general principle, all words and sentences must be given some meaning or effect.[26] In the present case, it is appropriate in construing the second arm of the definition of 'dwelling' in the Bayside DDCP to give it full meaning and effect. It is not open to treat the second arm of the definition as superfluous or meaningless.

64 When it looked at the second arm of the definition of 'dwelling', the Tribunal had assumed that the draftsperson of the Bayside DDCP intended the word to be confined to the statutory definition contained in the planning scheme. This could not have been the case because the planning scheme meaning of 'dwelling' constituted the first arm of the definition of 'dwelling'.

65 The Tribunal's interpretation disregarded the fact that the second arm included dwellings contained within the Accommodation Group of the planning scheme. In construing the definition of 'dwelling' in this manner, the Tribunal failed to ascribe a practical and reasonable meaning to the second arm of the definition.

66 In my view, it is clear that the draftsperson of the Bayside DDCP used the term 'dwelling' in its ordinary meaning of 'place of residence or abode' or 'a room or suite designed to be used as a separate domicile', or in other words 'a living unit'. 'A place of accommodation' would have been another proper construction having regard to the reference in the definition of 'dwelling' to the Accommodation Group.

67 Other sign posts that the word 'dwelling' was used in its ordinary meaning are the reference in s 6.6 to a 'flat within a multi dwelling "apartment type" building' which is not a statutory expression, and the use of the word 'dwelling' in lower case throughout the Bayside DDCP. Both of these references suggested that the Bayside DDCP was not written as a formal instrument.

68 The Macquarie Online Dictionary gives the following meanings to the word 'dwelling':

1. a place of residence or abode; a house.

2. a room or suite of rooms designed to be used as a separate domicile.[27]

69 The draftsperson intended that all places of residence or abode or living units found within the planning scheme would be included as dwellings for the purposes of the Bayside DDCP. This includes residential developments such as residential aged care facilities, residential buildings, residential villages and retirement villages. It also includes facilities such as Bed and Breakfast and Group Accommodation that may also fall within the first arm.

70 The preferred interpretation of 'dwelling' in the Bayside DDCP is consistent with its intention and purpose as:

(a) the Bayside DDCP is expressed to cover all 'residential development' as well as 'non-residential development';

(b) the Bayside DDCP is intended to fund essential improvements and upgrades for the drainage network to support population growth;

(c) the Bayside DDCP is based on population growth of all types within the Bayside municipality;

(d) the financial budget for the Bayside DDCP assumes that new development will contribute to revenue unless exempted;

(e) the Bayside DDCP seeks to ensure that the cost of drainage network upgrades is equitably shared between new and existing development; and

(f) the development has numerous impermeable surfaces and will benefit from drainage works under the Bayside DDCP just as much as, or more than, other new development.

71 The preferred interpretation of 'dwelling' would avoid the creation of a major loophole and anomaly in the Bayside DDCP that would arise if large new residential developments such as aged care facilities, residential buildings, residential villages and retirement villages were exempt from paying levy. There is no textual justification in the Bayside DDCP for the exemption of these developments, and the existence of such a loophole would undermine the financial basis of the Bayside DDCP.

72 Review of the text and context of the Bayside DDCP shows that no difficulties are experienced if the definition of 'dwelling' is construed as set out above. The provisions of the Bayside DDCP operate harmoniously, and the exemptions operate effectively in their terms.

73 I am satisfied that the Tribunal erred on the question of law and uphold the grounds in the notice of appeal.

74 In Osland v Secretary to the Department of Justice (No 2), the High Court considered when proceedings under s 148 of the VCAT Act should be remitted to the Tribunal.[28] The Court decided that substitutive orders may be made where there is only one conclusion open on the correct application of the law to the facts as found by the Tribunal. However, if the outstanding issue involves the formation of an opinion, the proceeding should be remitted to the Tribunal for the purpose of making the necessary factual, evaluative or ministerial judgment.

75 Here, there is only one conclusion possible, namely, that a condition be imposed in the permit to the effect that the permit holder pay the amount of the levy within a specified time. This condition is mandated by s 46N(1) of the PE Act and there is no discretion to exempt.

76 Accordingly, it is appropriate to order that the necessary condition be inserted in the permit, and avoid the cost and expense of a remitter.

77 The Court will grant leave to appeal, allow the appeal and make an order modifying the Tribunal's orders to insert an additional permit condition in Appendix A to read:

Prior to the occupation of the development, the permit holder must pay a drainage levy in accordance with the amount specified under the Bayside Drainage Development Contributions Plan.

[1] Stockland Development Pty Ltd v Bayside City Council [2019] VCAT 147 (Code SM, Nervegna M) ('Tribunal reasons').

[4] The terms 'development' and 'use' are defined in s 3 of the PE Act.

[7] A question of law arising in a proceeding must be decided by a judicial member or a member who is an Australian lawyer: VCAT Act s 107(1)

[9] Ibid [156]-[157] (footnote omitted).

[11] [2010] VCAT 797.

[12] Tribunal reasons [159], [162]-[163].

[16] Ibid [181]-[182] (citations omitted).

[17] Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497, [25] (Perram J).

[18] (1998) 194 CLR 355, 381-2 [69]-[71], 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted) ('Project Blue Sky'). See also Maroondah City Council v Fletcher (2009) 29 VR 160, 168 [36] (Warren CJ, Redlich JA and Osborn AJA) ('Maroondah City Council'); Commissioner of State Revenue (Vic) v Landrow Properties Pty Ltd (2010) 79 ATR 800, [51] (Neave, Harper and Hansen JJA) ('Landrow').

[19] [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).

[20] [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).

[21] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).

[22] [1963] 3 All ER 180, 183 (emphasis added); quoted in Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528, 531 (Murphy J); Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786, [43] (Cavanough J); Government Insurance Office of New South Wales v K A Reed Services Pty Ltd (Supreme Court of Victoria, Beach J, 23 October 1986) 17.

[23] [1999] VSC 269; (1999) 108 LGERA 129, [12]-[16], quoting Hafza v Director-General of Social Security (1985) ASSC 92-052, 90,607_; Port Phillip City Council v Domain Hill Properties Pty Ltd_ [1998] VSC 35; (1998) 102 LGERA 11, 14; Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93, 99; Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217, 222.

[25] Clause 75.01 was subsequently replaced by cls 73.03 and 73.04-1 of the planning scheme: see Tribunal reasons [175]-[178].

[26] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffith CJ); Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, 574 (Gibbs J); Project Blue Sky (n 17) 382 [71]; Maroondah City Council (n 17) 160 [36]; Landrow (n 17) [51]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [39]; Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197, [276] (Warren CJ, Tate and Santamaria JJ); Radojevic v JDA Design Group Pty Ltd (No 2) [2017] VSC 796, [37] (Ginnane J).

[27] Macquarie Dictionary (online at 4 June 2020) defs 1, 2.

[28] [2010] HCA 24; (2010) 241 CLR 320, [20] (French CJ, Gummow and Bell JJ).