Victorian Civil and Administrative Tribunal|2001-07-23

Reeves & Others v Warrnambool CC [2001] VCAT 1569 (23 July 2001)

Application under Section 185 Local Government Act 1989 - Special Charge Scheme - Road construction scheme - Special benefit - Basis of distribution - Whether works are excessive or too costly. - Public land - Effect of existing development of the land - No existing access to road.

John & Maree Reeves, Mary & Gary Couch, and Robert & Robyn Bain.

The order of the Tribunal is that the Logans Beach Road Special Charge Scheme is confirmed.

Mr Peter Reeve, Director of Physical Services, appeared on behalf of the municipality.

Mr John Reeves, Mr Gary Couch, and Mr Robert Bain, Applicants for Review, each appeared on their own behalf and on behalf of their respective wives.

1. This is an application to review a special charge scheme for construction of the eastern extension of Logans Beach Road in Warrnambool.

2. Logans Beach Road is presently constructed up to the entrance to the Logans Beach Reserve and Whale Viewing Platform. Beyond this entrance to the Reserve Logans Beach Road extends eastwards for a distance of approximately 211 metres as a narrow gravel track. Five low density residential lots abut the northern side of this track and fall within a Rural Living Zone under the provisions of the Warrnambool Planning Scheme (the "long established lots"). Land to the south of this track is owned by the City of Warrnambool, forms part of the Logans Beach Reserve, and falls within a Public Park and Recreation zone. The municipality has approved a four lot subdivision immediately to the east of this gravel track and which extends and relies on Logan Beach Road for access. The permit by condition and agreement provided for the construction of Logans Beach Road from the Reserve entrance, and required among other things that the municipality use its best endeavours to institute a special charge scheme to recover costs which might reasonably be borne by the existing land owners.

3. The special charge scheme only relates to part of the total road construction. The scheme only relates to that part of the road which extends across the frontage of the five long established lots referred to earlier, and which predated the subdivision to the east. Moreover, the special charge scheme only relates to the construction of this part of the road with a 4 metre pavement. The road is in fact to be constructed with a 6 metre pavement.

4. For the purposes of the special charge scheme the cost of the scheme is to be apportioned across 11 lots, the five long established lots, the four lots created by the recent subdivision, and two theoretical lots which might be created as a consequence of further subdivision of rural land to the east.

5. The ultimate result of this road is a complex web of arrangements and concessions is that:

* The total estimated cost of the road construction is $117,283.

* The total estimated cost of road construction across the frontage of the five long established lots is $75,576.

* The total estimated cost of that part of the road construction scheme which is to be paid for by the special charge is $59,210. i.e. the estimated cost of a 4 metre rather than 6 metre pavement.

* The share of the owners of the five long established lots of the total estimated cost of the road construction is $22,128.

* The share of the subdivider/landowner to the east of the total estimated cost of the road construction is $95,155.

6. The applicants in this application for review are the owners of four of the five long established lots affected by the proposed Special Charge Scheme. The applicants accept that they will derive some special benefit from the construction of the road. The applicants argue that the scheme is flawed because:

i. The scheme ascribes a zero benefit to the Council owned land, that is Logans Beach Reserve, to the south of Logans Beach Road.

iii. The fact that the Council has already charged land owners for construction of the road, bars the Council from recovering any further costs in relation to the construction of the road under the provisions of Section 63(7) of the Local Government Act 1989.

7. In addition to these more general arguments Mr Bain argued that the benefit to his land was very minor indeed because his land already enjoyed access onto the already constructed portion of Logans Beach Road, and did not derive access from its frontage. The Council in apportioning part of the cost of construction to the Bain property, made an allowance for the fact that it already enjoyed access onto the constructed portion of Logans Beach Road. The Council in effect treated the Bain property as a corner site. I am of the opinion that the construction of a road across the frontage of a low density residential site such as this represents a beneficial attribute of the land. Moreover, the land prospectively enjoys an opportunity to derive benefit from an alternative access to a constructed road. I am of the opinion that the Council has made an adequate allowance for the fact that there is an existing access from this land onto a sealed portion of the Logans Beach Road.

8. The Council provided access to the Logans Beach Reserve and Whale Viewing Platform, by constructing Logans Beach Road to the east of the presently unconstructed part of the road. The master plan for the reserve requires no access to the reserve from Logans Beach Road. In my view this Council owned land will not derive any benefit, certainly not a special benefit, from the construction of the presently unconstructed portion of Logans Beach Road. Nevertheless, I note that as part of the scheme the Council has agreed to excise a 10 metre strip from the Recreation Reserve, to widen the road reserve across the frontage of these five long standing lots from 10 metres to 20 metres, in my view the provision of a more spacious road reserve in this location will benefit the long standing lots and it is a benefit which does not form part of the cost of the scheme.

9. It was argued that the proposed works were excessive and costly, Mr Reeves in his submission argued in part:

"He recommends that the road designers should give consideration to some or all the below amendments as a means of reducing the costs:

q Lifting the road levels at centre line, where possible, to reduce the amount of cut and associated earthwork volumes.

q Introduce maximum pavement crossfalls of 1 in 36 only with two-way crossfall transitioned to and from one-way rather than having all one-way fall at 1 in 20 slope.

q Reduce the width and depth of the table drains because the natural subgrde in this area is known to be extremely permeable.

q Moving the road formation to the north as a means of avoiding having to lower the water main if the above re-design elements alone aren't able to achieve sufficient clearance from the main.

If lowering the water main is not able to be avoided, the costs of this work should not be included in the scheme. The Council was the authority responsible for this installation a number of years ago and they should have anticipated that Logans Beach Road would eventually be fully constructed. It is unreasonable for the property owners to now have to pay for the Council's failure to properly plan ahead and place the main at sufficient depth to avoid future conflict with the road construction.

It may well be that the additional two meres in width of road pavement and seal needed to provide for further development to the east becomes the principal cause for the main still having to be lowered, even with a re-design of the road.

This would be further grounds for having this cost excluded from the scheme because the additional seal width does not provide any further benefit to those landowners whose properties front the section of Logans Beach Road subject to the special charge."

10. I do not believe that the intention of Section 185(2)(b)(iv) is to require the Tribunal to examine in minute detail the cost effectiveness of all the design decisions made in an engineering project such as this. Rather the question to be resolved is whether or not the works proposed are excessive because they are completely mismatched to the problem to be resolved. For example a two lane sealed road may be excessive if it can be demonstrated that an all weather gravel road is satisfactory as the road providing access to a small number of rural properties. This is not a situation which confronts the Tribunal in this case. For the purposes of the special charge what is proposed is a rural standard road without kerbs, and with a 4 metre wide pavement. I do not consider that this can be regarded as being excessive in the circumstances of this application for review. In any event this is a case where it is difficult to go behind the expertise of the Council in its decision in respect of the design standards to be achieved, in the absence of expert evidence to the contrary,, properly tested by cross examination.

11. Section 163(7)&(8) of the Local Government Act 1989 states:

(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 sub-section (7) and section 221(6), "construct" and "component" have the same meanings as in section 12 of the Local Government (Consequential Provisions) Act 1989.

12. Section 12(2)&(3) of the Local Government (Consequential Provisions) Act 1989 states:

(2) For the purposes of sub-section (1) "construct" means any works necessary to complete the construction of a component of a private street to the satisfaction of the Council.

(3) In sub-sections (1) and (2) "component" means any one of the following--

13. Mr Couch argued that in 1998 Council at the request of some owners of the long standing lots graded and laid crushed rock on the existing narrow track which constitutes the unmade portion of Logans Beach Road, which is the subject of this Special Rate Scheme. It was contended that the Council was barred from seeking to recover any further costs in respect of the construction of the road, because it had already constructed the road at the cost of the affected land owners.

14. For the purposes of this section "construct" means "any works necessary to complete the construction of a component of a private street to the satisfaction of the Council". I do not consider that it can be reasonably contended that by grading and laying gravel on an unconstructed private street the Council is constructing a road to a standard which is to their satisfaction Particularly were this makeshift construction is carried out at the request of adjacent landowners for their short term benefit. Indeed, there is no evidence to suggest that this was the Council's intention, and I doubt that any reasonable council could have formed such an intention in any event.

15. It is the Council's intention to undertake the construction of this road in conjunction with the subdivider. The applicants accept that this is most certainly the most efficient way of constructing the road, but are concerned that it creates an opportunity for the transfer of costs from the subdivider to themselves. I don't necessarily agree that this is likely, but I do observe that it will be important for the Council to ensure that the tendering and contract management processes for the construction of this road should be very transparent so that all parties can be satisfied with the way in which the costs of the project are ultimately apportioned given the real cost of construction.

Reeves & Others v Warrnambool CC [2001] VCAT 1569

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Reeves & Others v Warrnambool CC [2001] VCAT 1569 (23 July 2001)

Parties