Subject Land North Road (between Western Port Highway and Centre Road), Langwarrin

Review application dismissed. Special rate confirmed.

For the Applicants: Mr A. Radford instructed by Guymer Naidoo Solicitors

For the Responsible Authority:: Mr P. Lucas of Macquarie Lawyers and Strategies

1. This proceeding concerns a proposal by Frankston City Council to seal a now unsealed portion of North Road Langwarrin, between Centre Road on the west and Western Port Highway on the east covering a distance of approximately 1,356m. Council's proposal entails a pavement width of 8.2m from back of kerb to back of kerb with underground drainage and landscaping work. Orthodox kerbing and channelling is to be provided together with a roundabout at Centre Road and a left turn lane at the Western Port Highway end for traffic turning into North Road. It is also proposed that there be a splitter island and left turn lane out of North Road. These items will be at Council's expense. Council has resolved to levy a special rate upon abutting residents pursuant to Section 163 of the Local Government Act 1989.

2. Abutting North Road at the south side with a street frontage of 548.69m is an estate described as the "Leisureland Subdivision". In January 1995 the City of Cranbourne as Responsible Authority under the Cranbourne Planning Scheme issued a permit for subdivision of what is now the Leisureland Estate. It included a requirement as Condition 11 that

"The owner of the land to which this permit relates shall either enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act and in accordance with the purposes described in Clause 137 of the Local Section of the Cranbourne Planning Scheme ordinance whereby the owner agrees to provide works and or a monetary contribution to the reasonable satisfaction of the Responsible Authority for or towards the widening and/or timely construction of Government Road ... in the Langwarrin Urban Area, the need for which will be caused or increased by the development hereby permitted."

3. Following upon the municipal reorganisation conducted in Victoria in 1994 the Langwarrin area was transferred to the municipal district of Frankston City Council. By an agreement dated 15 May 1995 and expressed to be made under Section 173 of the Planning and Environment Act 1987 Frankston City Council agreed with First NJK Investments Pty Ltd described as "the owner" as to these matters. The agreement recited that

"Council has resolved to create an owner contribution scheme with respect to the cost of the works referred to in Condition 12 of the permit (the work scheme) and to require all owners of property abutting the section of North Road referred to in the planning permit ("the abutting owners") contribute to the work scheme. In furtherance of the work scheme the council proposes to determine the share payable by the owner and each of the abutting owners upon finalisation of detailed costings of the works but not withstanding has agreed that the owner will not be required to contribute an amount in excess of $105,000."

4. The agreement recited a Permit No. 930277 issued on 11 November 1994 which is presumably an earlier version of the permit from which we have already quoted. Clause 5.1 of the agreement effectively "capped" the owner's contribution of $105,000 in accordance with the terms of the recital. Clause 5.4 provided:

"The Council will do all acts and things reasonable and necessary and otherwise use its best endeavours to ensure that the work scheme is implemented and the works the subject of the Scheme are commenced on a date no later than two years from the date of execution of this agreement by the owner and the works thereafter completed on a date no later than three years from the date of execution of this agreement by the owner."

5. In November 1995 the City of Frankston sent questionnaires to the land owners to be affected by the scheme. The responses to that questionnaire were received in January 1996 and in February 1996 Council resolved to prepare a scheme. On 25 October 1999 having engaged a consultant and finalised a design Council resolved

"That with respect to the construction of North Road, between Centre Road and Western Port Highway, the special charge scheme be prepared under the provisions of the Local Government Act 1989, on the basis of residents paying the cost of a typical local road construction, and Council paying for any costs for works in excess of a local road standard."

6. On 6 December 1999 in accordance with Section 223 of the Local Government Act 1989, at a meeting attended by all Councillors, Council permitted residents who had lodged written objections to the proposed scheme to address Council in person. In accordance with Section 223 a public notice had been inserted in a locally circulating newspaper on 2nd November 1999 giving notice of the Council meeting. At the conclusion of proceedings on 6 December the Council recommended that a meeting be held with residents in late January. That meeting was held on 27 January 2000 and was attended by one Councillor and a number of Council Officers.

7. On 10 April 2000 Council resolved to declare and levy the special charge and made certain amendments as to the allocation of the levy between land owners. Notice of Council's decision was served upon affected owners.

8. The scheme extends to some 80 owners. Fifty-three allotments within the Leisure Land subdivision are included in the scheme. The effect of the Section 173 agreement however is that the $105,000 contributed by the developer constitutes a satisfaction of their liability. The involvement of these owners is therefore somewhat academic. We were informed that some 28 owners not covered by the Leisureland arrangements were affected by the scheme. The total cost of the proposed scheme is $1,161,728.33. Council is to contribute the sum of $573,358.36 representing the cost of constructing the road beyond a 5m residential road standard, service relocation, the roundabout at Centre Road, the left turn lane in Western Port Highway. Land owners, excluding those in the Leisureland Estate are to be required to contribute $342,183.24. The Leisureland Estate contributes the $105,000 already made available under the Section 173 agreement and a further sum contributed by Council as a top up making the total allocation attributable to the Leisureland Estate in the sum of $246,186.72. The complementary payment by Council is said to bring the contribution attributable to the Leisure Land Estate up to the sum which it would be applying the same principles as are applied to the owner contributions for the balance of the land affected. The basis of distribution of liability is that one benefit unit is attributed to each property or theoretical property based on subdivisional potential which has a direct frontage to North Road and 0.3 benefit units is allocated to properties not directly fronting North Road, including battle-axe allotments existing in actual subdivisions or hypothetical subdivisions representing Council's perception of the land's subdivisional potential. The modified area is the actual area of allotments with the exception of corner properties and properties affected by future VicRoads acquisitions. Corner properties are modified using a formula which in the circumstances of this proceeding is unnecessary to consider.

9. Of the 28 non-Leisureland allotments affected the owners of 18 have sought review of Council's determination pursuant to Section 185 of the Local Government Act 1989. These parties were represented before us by Mr Radford of Counsel.

10. At the outset it is necessary to consider precisely the nature of the review which we are authorised to carry out by Section 185. Section 185 provides:

"(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."

11. Mr Lucas appearing for the Council referred us to what was said by Mr Byard, Deputy President and Mr Liston, Member, in the Administrative Appeals Tribunal in the matter of Raine Horne v Wyndham City Council (1998) 22 AATR 23, 29 where they said:

_"... the discretion lies with the Council. It is what the Council considers to be a special benefit to the persons who are to pay that is the crucial discretion. It is this question of whether a person made liable will receive a special benefit that was particularly referred to by the High Court in the Parramatta case [_City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305]. It was the Council's decision on that point in particular that the High Court said would not be overturned by a court unless it can be shown that the view adopted was not reasonably open to the Council."

12. This approach would stand in contrast to the usual approach adopted in the Administrative Division of this Tribunal in conducting reviews, that is, that the review is won upon the merits and what is being reviewed is a substantive effect of the decision rather than the legality of the Council's decision. The distinction between the two represents the distinction between a merits review and a judicial review.

13. In our view albeit that the available grounds for a review under Section 185 are far narrower than those available to the Tribunal, for instance in a permit review application, within the bounds of those grounds the review to be carried out is as much a merits review as in a permit review proceeding. That is it is for us to consider whether for instance a particular applicant derives a special benefit from this proposed scheme not whether it was reasonably open to the Council to conclude that that resident receives a special benefit. This matter is dealt with at some length in a decision of the Tribunal in the matter of Walters v Manningham City Council (1999) 2 VPR 276. We adopt the reasoning in Walters' case and reject Mr Lucas' submission to the contrary.

14. Mr Radford on behalf of the applicant relied upon each of the four paragraphs in Section 185 in his attack upon the special rate.

15. As we understood Mr Radford's submission that his clients derive no special benefit from the proposed works it relied upon the view that the residents had not sought the construction of North Road. Each of them was happy enough to continue with the road in its present configuration. Given a choice between meeting the imposts constituted by the special charge or continuing with the present unsealed road, the residents manifestly preferred the latter. Mr Radford went further and submitted that the works if carried out would be destructive of the special rural character of the area and by introducing typical urban kerb and channelling would impose upon these residents the very elements of city and suburban living which they had chosen to avoid by making their homes in a low density semi-rural environment.

16. The classic statement of what constitutes a "special benefit" for the purposes of a special rate or special charge scheme was given by Gibbs J. (as he then was) in Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305, 327 where His Honour said:

"A work is a special benefit to a portion of a local authority area if the lands comprising that portion derive from the work 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."

17. Mr Radford submitted that any benefit deriving from the execution of these works would be enjoyed by the whole body of ratepayers of the City of Frankston and not to any particular or special degree by his clients.

18. We reject the submission that these proposed works would not be beneficial to the residents. One of the residents Mr Hodges, admitted in cross-examination that a sealed road was "clearly more efficient" than an unsealed one. Even without Mr Hodges' evidence we would accept that view as self-evidently correct.

19. We also heard evidence from Mr Patel of Patel Dore Property Valuers Pty Ltd. Mr Patel examined records of a number of sales in the immediate area of North Road excluding properties with residences on them. All sales were zoned "Low Density Residential" as these applicants' properties are. Mr Patel concluded "the sales evidence clearly identifies that the value of a one hectare block would be increased by around 13% or $17,000. In our experience, we would have expected a proportional increase for larger allotments." Mr Radford in cross-examination sought to attack the basis of Mr Patel's conclusion based upon differences in area of land and location on non-through roads. In our view however, the validity of Mr Patel's conclusions was not seriously shaken. He said that many buyers would not even consider purchase of land on an unsealed road for the following reasons:

"* Buyers are wary of potential road making costs.

* Possible damage caused to motor vehicles caused by continued driving over unsealed roads.

20. Mr Radford submitted that even if it were shown that the execution of these works constituted a benefit it was a benefit which was not special to these applicants. He based this contention on the view that since North Road is a relatively long through road a significant percentage of the traffic is commuter rather than local traffic, therefore the benefit is to the municipality as a whole and not to these applicants.

21. We are prepared to assume that the impetus for these works comes from concerns as to the wider transport needs of the municipality rather than a concern for the amenity of these applicants and their residences. Council placed some reliance upon its transportation study undertaken by private consultants which projects traffic volumes on North Road (depending upon assumptions) at 3,000 to 4,000 vehicles per day. This contrasts with the traffic counts conducted by the residents' own consultant this year showing vehicle volumes per day of approximately 900 vehicles. To make out the ground in Paragraph (i) of Section 185(2) of the Local Government Act it is necessary to show that there is no special benefit at all to the residents. It is not sufficient merely to show that the benefit which they receive is purely incidental to some wider purpose.

22. In the nature of things a resident of North Road will have more occasion than somebody who merely passes through to use the enhanced roadway which these works will provide. It will provide an enhanced residential amenity, aside from the advantages which a sealed road will bestow for actual vehicular traffic.

23. Accordingly we conclude that these applicants will derive a special benefit from the proposed works. We reject this ground of appeal.

24. Mr Radford submitted that in judging whether the special benefit has been shown to exist one must also give due consideration to any disbenefits which will arise. We accept this. The only disbenefit asserted aside from the levying of the cash impost was the intrusion upon the semi-rural atmosphere which North Road now possesses. We consider and reject arguments along these lines in a subsequent section of our reasons.

25. Mr Radford submitted that the basis of distribution of the charge among those people who are liable to pay it was unreasonable. He did not challenge the use of the subdivisional potential of the land based upon an ability subject to permit to subdivide down to a minimum block size of one hectare or 0.4 hectares under the new format Scheme. Mr Lucas on behalf of the Council took us to a number of previous Tribunal decisions in which this approach was deemed acceptable. Mr Radford submitted however that in a number of instances, including Mr Hodges and Ms Blundel, hypothetical subdivisions had been adopted which would require the demolition of existing houses. Council conceded that it effected these hypothetical subdivisions without any regard to the existence or otherwise of buildings across hypothetical boundaries. Mr Radford submitted that whilst subdivisions could properly be considered on a hypothetical basis in the allocation of costs between owners, the hypotheses must be realistic. A subdivision which assumed the demolition of a house which the owner and occupier intended to continue to live in was unrealistic and impractical and accordingly the distribution amongst owners was unreasonable.

26. Mr Lucas in response referred us to the decision of the high Court of Australia in Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 where a special rate had been imposed under Section 121 of the Local Government Act 1919 of the State of New South Wales. The special rate had been levied in what might generally be described as an industrial area but excluded 90 lots which had a residential use. The Court dismissed an appeal against a decision of the Supreme Court of New South Wales setting aside the special rate because the Council could not reasonably have formed the view that the rated land enjoyed a special benefit which was not enjoyed by the excluded land. Stephen J. said

"It may be that the Council, in considering the area of special benefit, had regard to the current use to which properties were being put and concluded that, because the owners or occupiers of occupied cottages might not be able to take advantage of the proposed works in the same way as would the owners or occupiers of industrial property in the area, it was proper to exclude the 90-odd lots from the rated area. If so, this involves a misunderstanding of the meaning of "special benefit", which is not concerned with advantages in fact conferred upon individuals but with benefits conferred upon land." [1972] HCA 59; (1972) 128 CLR 305, 332-3

27. His Honour considered the history of these special rate provisions, referred to a number of authorities and continued:

"It follows that the particular current use to which any land is put should not of itself be regarded as depriving that land of the character of land specially benefited if in fact the proposed work so enhance its value that, in the Council's opinion, it would otherwise qualify as land of that character. Enhancement in value without advantage in current user is no more than an indication that the land is not being put to its highest economic use; a special benefit is not to be regarded simply because some lower economic use to which, for the time being, the land is being put precludes advantage being taken of that special benefit." (1972) 128 CLR 334-5

28. His Honour was of course dealing with the issue of the existence or otherwise of a special benefit rather than the reasonableness of the distribution of the burden of the cost of a special rate amongst land owners. Nevertheless it follows in our view that if it is proper for a Council to consider for one purpose, namely the existence or otherwise of a special benefit, potential changes in use by way of subdivision or consolidation requiring the demolition of existing buildings, it is reasonable for a council to proceed on these sorts of hypotheses in seeking to determine a proper basis of distribution of the charge. Moreover, for this ground to be made out the applicants must establish that what the Council has resolved to do is "unreasonable". We do not suggest that a revised set of hypothetical subdivisions which specifically avoided the necessity of demolishing any existing buildings would be other than reasonable. This does not however establish that what Council has here done is unreasonable. The concept of reasonableness is not an absolute. There is not in the complexity of human affairs, one approach which is "reasonable" leaving all others meriting the epithet "unreasonable", rather there are a number of possible approaches some of which are reasonable and others of which are unreasonable.

29. Mr Symons a very experienced traffic engineer called by Mr Radford suggested in his evidence a reworking of the contribution of non-Leisureland owners to $295,563. This re-allocation was based inter alia upon the use of frontage as the sole criterion for distribution of cost. The concession implicit in the presentation of Mr Radford's case that a more elaborate formula employing benefit units and considering subdivisional potential necessarily excludes this as a proper approach to cost allocation.

30. For these reasons this second ground fails as well.

31. Mr Radford submitted that the proposed works were inconsistent with the policies and objectives appearing in the Planning Scheme.

32. He said the following policies needed to be considered. From the State Planning Policy Framework to policy for

* conservation of native flora and fauna (Clause 15.09);

* the policy for rural living and rural residential development (Clause 17.01);

* the policy for design and built form (Clause 19.03);

From the Local Planning Policy Framework he referred to:

* South-east Non-urban Area Policy (Clause 22.15); and

Mr Radford also referred to the Municipal Strategic Statement which he said "provides the framework and coherence with the policies and provisions". He relied on the following parts of the MSS

* Strategic Land Use Framework Plan (Clause 22.03-2);

* natural environment and cultural heritage (Clause 21.12);

33. He noted that the subject properties are in a Low Density Residential Zone. He noted that in accordance with the provisions of the MSS, Council had prepared the Baxter-Langwarrin Low Density Outline Development Plan. He also observed that the following overlays affected the area:

* Environmental Significance Overlay (Clause 42.01);

34. Mr Radford placed reliance on the evidence of Mr David Hansen, a town planner. He concluded that the proposed special charge scheme and works were "inconsistent with the relevant strategies, policies, zones and overlays, including policy statements and objectives, design objectives and design guidelines". Specifically he found that the works would be inimical to the following strategic objectives set out in the Municipal Strategic Statement at Clause 21.03-2 of the Planning Scheme, namely:

"* a variety of living environments is encouraged in the city with rural residential development around Langwarrin ...

* rural areas will be maintained and there will be emphasis on encouraging agricultural production in the northern rural retreats and hobby farms in the south

* Frankston City's significant indigenous vegetation remnants are identified and will be protected."

35. The proposed works would, he said, be inconsistent with housing strategies to be found as part of the Municipal Strategic Statement at Clause 21.04-2 of the Scheme, namely:

"* maintain the areas of low density development for its contribution to housing diversity and landscape quality ...

* ensuring that residential development is responsive to significant environmental landscape and cultural features, including streetscape values

* co-ordinating development in new housing areas and ensuring the timely provision and equitable funding of infrastructure."

36. In Mr Hansen's view the proposed funding source was not "equitable". He said that housing strategies in the Municipal Strategic Statement placed "a significant emphasis on the environment and landscape quality, including the streetscape. In my view, it is therefore important to construct North Road in a manner which reflects those qualities and still provides a roadway which has the appropriate level of service and safety. The proposed kerb and channel and underground drainage is at odds with Council's housing strategies and should be deleted." Next he referred to policies as to natural environment and cultural heritage in the Municipal Strategic Statement to be found at Clause 21.11 of the Planning Scheme. These strategies and objectives required maintenance and enhancement of biological diversity, protection of landscape and flora and fauna. The works would be inimical to these policies and objectives according to Mr Hansen.

37. Mr Hansen conceded that the works were consistent with the transport policy in the Municipal Strategic Statement at Clause 21.12 of the Planning Scheme but observed "although Council's transport strategies need to be implemented, this should not be done in isolation and without having due regard to other competing strategies, policies and site conditions".

38. Mr Hansen said that regard should also be had to the Baxter/Langwarrin Low Density Outline Development Plan updated in February 1999, provided for at Clause 22.12 of the Planning Scheme. He noted that this plan stated that

"With respect to costs [of road construction] residents with direct access and/or frontage to arterial roads, collectors and access should contribute to a special rate scheme the equivalent of construction for an access lane with the balance apportioned through developer contributions"

39. He also noted that the Outline Development Plan favoured the retention of existing vegetation and landscape character.

40. Next Mr Hansen referred to the South-East Non-Urban Area Policy to be found at Clause 22.15 of the Planning Scheme and in the Municipal Strategic Statement. He conceded that this policy does not specifically mention the area or apply to it but "the subject land does fall within the inter-urban break between Frankston and Cranbourne". He continued "I consider that a large part of the rural appearance of an area, except where long range views are available, is provided by the roadside condition and appearance, and particularly by the nature of road construction and flanking vegetation".

41. The final item in the Municipal Strategic Statement to which Mr Hansen relied was its streetscape policy to be found at Clause 21.16 of the Scheme. He noted the following as objectives of the policy:

* To encourage a consistent approach to streetscape works on private and public land

* To help create a sense of place by developing strong streetscape themes at gateways to the city and long entry boulevards

* To achieve a high standard of built form and landscaping at gateway locations and along entry boulevards."

42. Mr Hansen said that the proposed construction was "contrary to these objectives because it will be detrimental to streetscape character, will be inconsistent with adjoining development of the construction of intersecting streets, will diminish landscape appearance and character of a gateway entry to the municipality, although a minor one, and will not achieve a high standard of landscaping ...". He said it was also contrary to other policy provisions relative to streetscape, namely:

"* remnant indigenous vegetation to be conserved

* streetscape treatments be consistent with the role of the road and the road network

* the safety of road users be one of the primary considerations in the design of streetscape and in the development of any traffic management treatments

* the rural zone retain as much as possible of its existing open character and new tree planting to be provided in each new subdivision."

43. Mr Hansen noted that North Road and/or its abutments were affected by four overlays, namely an Environmental Overlay (Clause 42.01 Schedule 1) (portions of the abutting land); Significant Landscape (Clause 42.03 Schedule 1) (North Road and all abutting land); Design and Development (Clause 42.02 Schedule 4) (all abutting land); Development Plan (Clause 43.04 Schedule 1) (North Road and all abutting land). He noted that under the Environmental Significance Overlay a permit was required to lop or destroy vegetation native to the City of Frankston. Similarly a permit was required under the Significant Landscape Overlay to remove vegetation. He observed:

"It is therefore important to achieve a more sympathetic road design, including limiting the removal of existing and native vegetation by eliminating the proposed barrier kerbs and underground drainage. It may also be possible to off-set the road pavement within the road reserve to maximise vegetation retention."

44. Both Mr Hansen and Mr Radford by way of submission were critical of the fact that the construction plans propounded for the proposed road works did not deal with the issue of revegetation at all. Mr Radford exhibited a permit which was granted for the sealing of another part of North Road in 1995. It contained specific conditions requiring revegetation as part of the development.

45. Mr Lucas on behalf of the Council relied upon the evidence of Mr Richard Umbers, a planning consultant at Peninsula Planning Consultants Pty Ltd. Mr Umbers said that "North Road is one of a number of key arterial roads within the Baxter/Langwarrin Low Density Outline Development Plan, which collects and distributes traffic in an efficient manner and carries through traffic." He considered that the proposed works were consistent with the policies and objectives in the Planning Scheme.

46. Section 185AB of the Local Government Act 1989 requires the Tribunal when considering a review application under Section 185 to "have regard to any planning scheme ... adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application was determined, approved by the Minister". The Frankston Planning Scheme was approved by the Minister shortly after Council gave its decision to levy the special charge. Nevertheless by reason of Section 185AB it is this Scheme which is primarily significant now, having been adopted on 13 April 2000. It zones land on both sides of the relevant sector of North Road "Low Density Residential Zone". The land is subject to the overlays referred to by Mr Hansen in his evidence. Under the previous Cranbourne Planning Scheme which affected the land until 13 April 2000, the land abutting both sides of North Road were zoned Residential (Rural Landscape - Langwarrin) Zone. Under the old Scheme subject to obtaining a permit, land could be subdivided to allotments of not less than one hectare. The present Scheme permits lots to be subdivided subject to permit to 0.4 hectares (Clause 32.03-3).

47. In our view it has not been demonstrated that these proposed works are inconsistent with policies and objectives to be found in the Planning Scheme. First, as we think was conceded in the applicants' case, the works are consistent with the transport policies. Given that the present sector is the last part of north Road yet to be sealed it cannot seriously be contended that the mere provision of a sealed road surface would be destructive of the semi-rural character of the area. Aside from anything else sealed roads are far from uncommon in rural areas. The applicants' traffic engineer, Mr Symons (to whose evidence we will make reference presently) opposed the conventional barrier kerbs planned for this development and advocated either a "rollover/lay back kerb or a roadside shoulder". Since these would provide "an opportunity for emergency stopping or parking off the road pavement". The essence of the applicants' case under this heading is that the proposed works will intrude upon the semi-rural character of the area. For reasons already given we reject that contention in so far as it applies simply to the sealing of the road. All that is left therefore is the kerbing and underground drainage. The underground drainage by its very nature leaves little that is permanently visible on the surface. As Mr Trebilco, one of Council's consultants observed, sealing a road creates additional run-off from the impervious surface and underground drainage is an important preventative measure against erosion. Council conceded that a rollover/layback kerb could be constructed in lieu of the traditional "barrier" kerb for the same cost. It is not within our power to direct that this option be adopted, however in our view this would be a most desirable variation to the present proposal.

48. It was not suggested that the roadside strips contain any unique or rare vegetation. Some of the photographs show that the reserves include a number of exotics such as conifer trees. Other areas are quite devoid of vegetation. As Mr Hansen observed, the overlays affecting the area will require that there be a permit for the works in so far as they require the removal of vegetation. We believe it is proper to conclude that an appropriate revegetation condition will be included in any such permit. Mr Symons, conceded that if the road were built with gravel shoulders and table drains, the construction zone would be wider and there would be a more extensive temporary and permanent removal of vegetation. Use of the traditional "barrier" kerbs or rollover/lay back kerb enables the same road to be constructed with a narrower configuration requiring the removal of less vegetation. Mr Symons believed that the present cleared area would accommodate a new road with shoulders and table drains. He conceded however that he had not conducted a detailed study to verify this. Likewise he did not believe that this mode of construction would create any difficulty with utility installations such as electricity poles. Again, however no detailed study has been completed. The fundamental point remains that a road with kerbs is narrower than one with table drains.

49. It seems therefore that whilst the various policies favour retention of the semi-rural atmosphere of this area, this objective can be achieved with a sealed road with rollover/layback kerbs which mode of construction minimises the loss of vegetation. Since there is nothing to suggest that the vegetation on this road reserve is exceptional or unusual there is no reason to believe it cannot be re-established by a revegetation program. We reject the view that kerbs in themselves of whichever sort are wholly destructive of a rural atmosphere. We also note that this is scarcely a "wilderness" area. It is not even in the strictest sense a rural zone at all. Subdivisions may be made to as low as 0.4 hectares under the present planning controls. Despite the view of Mr Hansen we do not regard this section of North Road as meriting the description either of a "gateway" or a "boulevard".

UNNECESSARY, UNREASONABLE, EXCESSIVE .., UNSUITABLE OR COSTLY

50. The fourth ground set out in Section 185(2) seems to be available only "if the Planning Scheme for the area does not contain relevant policies or specific objectives ...". The new format Planning Schemes generally contain a superabundance of policies and objectives ranging from the State Planning Policy Framework to the Local Planing Policy Framework including the Municipal Strategic Statement. It seems unlikely that an area subject to a new format Scheme would ever be lacking relevant policies and objectives. If that were true the adoption of the new format schemes would have the effect of negating the availability of ground (iv) of Section 185(2). Mr Radford submitted that this was not the case, though we did not understand him to offer any distinct explanation of the opening phrase of the relevant paragraph which would not have the effect just described.

51. Since the Planning Scheme does contain relevant policies and specific objectives we believe this last ground is not available at all. Lest we are wrong on this point, we will nevertheless consider this ground as if it were available. The applicants' case on this ground derived principally from the evidence of Mr Symons an expert traffic engineer who said that substantial savings could be obtained the use of road shoulders and table drains rather than kerbs. We believe Council's decision to employ kerbs rather than shoulders is justified by the narrower configuration which this produces and the corresponding reduction in loss of vegetation. Another option suggested by Mr Symons was modification of the desire for kerbs to be applied only to the northern side with the camber of the road set so to drain water to the southern side. Mr Symons said that this would lead to a saving of approximately $38,000.

52. In our view whilst there may be grounds to debate this proposal, it cannot be said that the more orthodox configuration proposed by Council is excessive or unreasonable.

53. Since none of the grounds relied upon by the applicants has succeeded we dismiss the application for review and confirm the special charge. All questions of law have been determined by the presiding Deputy President.

54. At the outset of the hearing on the application of Mr Radford we granted leave for Mr John and Mrs Linda Fulton of 450 North Road to be added as applicants together with Mr Michael Graeme Hodges as registered proprietor of Lot 2 451 North Road.