* Mr I. Dadswell (on behalf of himself and, with Mr A.Simcox, of Ms K. Slattery);

* Mr J. Milonakos (on behalf of himself and Ms K. Magee);

* Ms A. Jensen (on behalf of herself, Mr R.A. & Mrs R.J. Walter, Mr A. & Mrs M. Colosimo and Mr S. Lissenburg);

* Mr F. Falvey (on behalf of himself and Mrs B. Falvey); and

Mitcham Road is designated a "main road" under the provisions of the Transport Act 1983. It commences in the west as a continuation of Doncaster Road and travels to the south-east.

This proceeding concerns a 1.2m section of Mitcham Road running from the intersection of Springvale Road in the north-west to the intersection of Park Road in the south-east. Most of the properties abutting this section are in the City of Manningham, though a few are in the City of Whitehorse. The road in its present state is a single carriageway with one lane for traffic in each direction. It contains some slight bends, undulations and heavy cambers. The Mayor of the City of Manningham recently described one section on a bend as a "death trap".

The section of Mitcham Road to the west of Springvale Road is a divided six lane highway. The section to the east of Park Road has two eastbound lanes and one westbound lane undivided.

In its present configuration the 1.2km section is a rural style road. It has no kerbing and channelling and no paved footpaths. Drainage is effected by table drains on either side. For some portion of the distance there is a footpath consisting of gravel screenings. For part of the distance on the south-west side of the road, the abutting properties have the advantage of an unsealed "service road" which forms part of the road reservation.

Since as long ago as 1967 there has been talk of widening this narrow and dangerous section of the road. Before the extension of the Eastern Freeway was opened (taking the Freeway to Springvale Road) in 1995, Mitcham Road carried as many as 32,000 vehicles per day. Immediately after the opening of the Freeway extension, the traffic volumes on Mitcham Road dropped to 24,000 vehicles per day on the relevant section. Council's most recent traffic count on 4 March 1998 showed that traffic volumes had increased to 29,000 vehicles per day, suggesting that the traffic volumes are now approaching once again the peaks which they reached before the opening of the Freeway extension.

In pursuance of the planned road widening scheme a number of frontages were compulsorily acquired over the years.

In June 1997 the Victorian Government announced that under its Outer Metropolitan Arterial Roads Improvement Program, an allocation of $2.7m is being made to upgrade the relevant section of Mitcham Road to two lanes of traffic in each direction. On 22 December 1998 the Council declared a special charge affecting some 68 properties on the relevant section of Mitcham Road and within the City of Manningham. The special charge was levied upon abutting owners to defray expenses of:

These items are not funded as part of the State Government program. The Council seeks recovery of some $172,259.93 from abutting owners; the State Government (VicRoads) funding is $2.7m; Whitehorse City Council is to contribute some $25,644.66 for the small portion of the road within its boundaries and Manningham City Council plans to devote some $49,177.80.

Some 18 affected owners or couples sought a review under Section 185 of the Local Government Act 1989 of Council's determination to levy the special charge.

The provisions governing the levy of special charges and their review by this Tribunal are the subject of a number of provisions in the Local Government Act 1989 representing a substantial departure from the regime existing under the now repealed Local Government Act 1958. They have been considered in a number of previous decisions of the Administrative Appeals Tribunal. Nevertheless, the provisions raise some difficult issues and it may be that the proper operation of these provisions is not wholly settled. Accordingly we take the liberty of setting these provisions out in extenso.

Section 163 of the Local Government Act provides for the levying by a council of special rates or special charges for defraying of expenses in relation to the performance of one or more of its functions "if the Council considers that the performance of the function or the exercise of the power is or will be of special benefit to the persons required to pay the special rate or special charge."

Section 163(7) provides that council may not recover any further costs in respect of the construction of a private street (within the meaning of Section 575(1) of the Local Government Act) if that component had been previously constructed to the satisfaction of the council. It was not suggested that these provisions had any application here.

Section 185 of the Act provides for review of a council's determination imposing a special rate or a special charge. The section is in the following terms:

(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."

One should also note the existence of Section 185AA inserted with effect from 1 July 1998 as part of the package of legislation effective from that date to establish this Tribunal. The section empowers this Tribunal, constituted by a Presidential Member (that is the President, a Vice-President or a Deputy President) to consider an application "for a declaration concerning the validity of a decision referred to in Section 185(1)". No such application was made here.

The grounds of review under Section 185 are limited. They are set out in paragraph (b) of Section 185(2). The powers of the Tribunal in completing a review are set out in sub-section (3) and are seen to be more limited than the Tribunal's general powers in a review application under Section 51 of the Victorian Civil and Administrative Tribunal Act 1998. The applicants before us contended that the special charge should be set aside on the basis that none of them will be provided with a "special benefit" within the meaning of the Section. It is noteworthy that sub-section (3) only permits the Tribunal to set aside a special charge if one of the grounds set out in Section 185(b)(ii), (iii) or (iv) is made out viz. the basis for distribution of the charge amongst the persons is unreasonable, the proposed construction is inconsistent with the policies in the Planning Scheme or the proposed works are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly. The very basis for the levy of a special charge is the existence of a special benefit. As reference to Section 163 of the Act indicates the absence of the necessary special benefit is the first ground for review mentioned in Section 185. It is not immediately obvious why the making out of that ground should not empower the Tribunal to set aside the special charge. Perhaps the answer to the paradox is that Section 185(2)(b)(i) focuses upon the position of an individual person who is not provided with a special benefit from the works for which he is sought to be made liable. The ground does not concentrate upon the absence (if that were the case) of special benefit to any person. It seems likely that the proper remedy for any person who makes out the review ground in Section 185(2)(b)(i) is a variation of the charge so as to exclude that person from its operation. Where the Tribunal finds that there is no special benefit to any person, it would seem appropriate to vary the special charge by deleting the liability of all persons sought to be made liable. An alternative course for objectors to a special charge would be to seek a declaration under Section 185AA from a presidential member to the effect that the entire charge was invalid.

A further difficult issue arises as to the nature of the "review" which Section 185 authorises this Tribunal to conduct.

"that the review by the Tribunal under Section 185(1) of the decision of the Council in relation to the special rate/charge, particularly in relation to the question of special benefit, is not a review de novo where the Tribunal substitutes its own opinion, but is a review of the administrative decision of the Council and as to whether or not the Tribunal should interfere with that discretion."

In Mr Lonie's submission, if a reasonable council in the circumstances of the Manningham City Council could have formed the view which it did as to the existence of a special benefit to these owners, this Tribunal would be precluded from taking any action on review other than to confirm the special charge, even if the Tribunal was of the view that had it had to make the decision as to the existence of a special benefit it would have decided in the negative.

This proceeding is being heard in the Administrative Division of the Tribunal. The Tribunal has two forms of jurisdiction, namely original jurisdiction and review jurisdiction (see Section 40 of the Victorian Civil and Administrative Tribunal Act). In general, review jurisdiction is exercised in the Administrative Division and original jurisdiction is exercised in the Civil Division. According to Section 42(1) of the Victorian Civil and Administrative Tribunal Act:

"Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker."

According to Section 3 of the Act a decision-maker is one who makes "a decision under an enabling enactment". The enabling enactment here is the Local Government Act 1989. The decision-maker is the respondent Manningham City Council. The reference in Section 185 of the Local Government Act 1989 to the Tribunal having power to "review" the Council's decision makes it clear that the jurisdiction now being exercised is "review" jurisdiction.

The immediate predecessor of the Victorian Civil and Administrative Tribunal's Planning List where this proceeding is being heard was the Planning Division of the Administrative Appeals Tribunal. That Tribunal was established by the Administrative Appeals Tribunal Act 1984 and was in turn modelled upon the Commonwealth Administrative Appeals Tribunal as established under the Commonwealth Administrative Appeals Tribunal Act 1975.

The nature of the "review" provided for under the Commonwealth Act was clearly established by the seminal decision of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. Mr Drake sought review by the Commonwealth Administrative Appeals Tribunal of a decision by the Minister to deport him pursuant to Section 12 of the Migration Act 1958. The Tribunal affirmed the Minister's decision. Mr Drake's Counsel submitted to the Full Court that in approaching the review of the Minister's decision in precisely the manner which Mr Lonie urges us to approach this matter, the Tribunal had fallen into error. The Full Court unanimously allowed Mr Drake's appeal from the Tribunal's decision and remitted the matter to the Tribunal for a re-hearing. Smithers J. said:

"It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s.25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorised and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this."

(1979) 24 ALR 577, 599

"The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative action that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable decision won on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."

(1979) 24 ALR 577, 589.

The planning jurisdiction of this Tribunal is perhaps not quite as direct an inheritance from the Commonwealth Tribunal established under the Administrative Appeals Tribunal Act 1975 as is the jurisdiction inherited from the General Division of the Victorian Administrative Appeals Tribunal established under the Administrative Appeals Tribunal Act 1984. Without descending into too much detail, independent planning tribunals were first established in Victoria under the Town and Country Planning Act 1961 under the name "Town Planning Appeals Tribunal". The jurisdiction was then transferred to the Planning Appeals Board established by the Planning Appeals Board Act 1980. The Planning Appeals Board was abolished and its jurisdiction transferred to the Planning Division of the Administrative Appeals Tribunal by the Planning Appeals (Amendment) Act 1987. The Administrative Appeals Tribunal was itself abolished and its jurisdiction transferred to this Tribunal by the passage of the Victorian Civil and Administrative Tribunal Act in 1998. The incorporation of the Planning Division with the Administrative Appeals Tribunal did not bring about procedural uniformity because many procedural matters in the planning jurisdiction were dealt with by what had then been renamed as the Planning Appeals Act 1980. Divergences of practice inherent in the unique nature of the planning jurisdiction are accommodated in this Tribunal by special provisions relating to that jurisdiction in Schedule 1 of the Victorian Civil and Administrative Tribunal Act. It is without question that the classic review of a Council determination to grant or refuse a permit is an administrative review of the sort described by the Full Federal Court in Drake's case.

Mr Lonie noted, that in carrying out a review under Section 185 of the Local Government Act, the Tribunal has lesser powers and functions than those bestowed upon it in the generality of proceedings by Section 51 of the Victorian Civil and Administrative Tribunal Act. Mr Lonie placed primary reliance upon a decision of the Administrative Appeals Tribunal in the matter of Raine Lodge Pty Ltd & Others v Wyndham City Council (1998) 22 AATR 23. In the Raine Lodge case a special rate scheme had been imposed to fund streetscape improvements in the Werribee town centre and a special charge scheme had been imposed to defray the costs of co-ordination, promotion and marketing businesses within the town centre. The Tribunal consisting of Mr Byard, Deputy President and Mr Liston, Member, confirmed the schemes. They referred to a decision of the High Court of Australia in City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 (as to which we shall have more to say later) and continued

"... it is an important theme running through the various judgments in that case, that where certain discretions are granted to the Council, particularly discretions that call for local knowledge and experience and their appropriate exercise, the Council's discretion will not be lightly interfered with by a court particularly as it was exercised by a representative local Government body taken to be possessed of such knowledge and experience. It is said that those wishing to challenge the exercise of such powers face great difficulties and the court will only interfere where a particular exercise of discretion is one that was not open to the Council on any reasonable basis."

(1998) 22 AATR 23, 28-9 at paragraph 20

The Tribunal noted that under the various special rate and charge schemes provided for by the former Local Government Act 1958 a finding that properties which did derive a special benefit had been excluded would have been fatal to the validity of the schemes. Likewise the inclusion of one property which did not derive a special benefit would have been fatal. The Tribunal said:

"Such inclusion or exclusion was a decisive ground of appeal under the old private street construction scheme, but is beside the point under the new legislation."

"The question before the Tribunal in an appeal on the first ground under s.185 is whether an appeal site has special benefit. It is not whether other land has special benefit."

(1998) 22 AATR 23, 37 at paragraph 60

In paragraph 62 on the following page the Tribunal noted that drawing a line between the area which did receive a special benefit from a set of works and improvements and the area which did not was difficult and the line was of necessity "hazy" in most circumstances. It continued:

"The Court will not interfere with the decision of the Council if the Council has drawn its line within the hazy but reasonably arguable area. Should this Tribunal go further than satisfying itself as to whether the Council's line is within or beyond that doubtful but reasonably arguable zone? Should it draw its own line, perhaps only marginally different to that of the Council and impose that? If this type of appeal or review was a complete re-hearing, then the Tribunal should draw its own line. As it is, this particular type of review is by no means a complete re-hearing. It is not like a normal planning appeal in this respect. That is because the scope allowed to the Tribunal by the strictly limited grounds upon which a review can be brought do not allow a reconsideration of all the questions considered by the Council and they do not allow a reconsideration of all the discretions exercised by the Council in coming to its decision to declare the rate or charge. We are inclined to the view that the Tribunal should accept the council's decision unless satisfied that it is wrong in the sense of not being open to the council on any reasonable basis. Our concern about that view is that it may constrict the already narrow grounds of appeal more closely than a fair reading of their terms would justify. It is not necessary for us to decide this point to determine these appeals because we have come to a clear view, on our own account, that accords with the decision of the Council."

It may be open to debate whether these last remarks, in a general sense clearly supportive of Mr Lonie's submission, were intended by the Tribunal to refer to the totality of its review jurisdiction under Section 185 or rather merely to its ability or lack of ability to deal with the question as to whether properties having a special benefit had been included or excluded by the "hazy line" delineating the limits of the special rate and charge imposed. In our view the Tribunal's jurisdiction (or rather lack of jurisdiction) to deal with this issue is perhaps accurately described by the Tribunal's statement that the review power is to consider whether an appeal site has a special benefit and not whether other land has a special benefit. If these passages are to have a more general application to the entire Section 185 jurisdiction, we would respectfully disagree with them. The observations are an accurate rendition of what was said in Pestell's case as to the power of a court to review the determinations of a council. As we have sought to show in the quotation from Drake's case, a merits review is fundamentally different. It is not subject to the self denying ordinances which apply to judicial review. The thought that it would ill behove a tribunal sitting in relative isolation from the land in question to substitute its views for the local knowledge of councillors sits ill with the long established Tribunal jurisdiction to conduct complete de novo reviews of determinations to grant or refuse permits. As the Tribunal in Raine Lodge and Mr Lonie correctly observed, the review jurisdiction under Section 185 is in terms of its subject matter narrower than the more traditional review jurisdictions exercised by the Tribunal. The powers are somewhat more limited than the Tribunal's general powers on review and the questions for review are strictly confined to certain narrow issues forming part of a much wider discretionary decision made by the Council. Nevertheless, we see no reason to think that the administrative review of the merits of these narrower questions is of a character different from the one described in Drake's case. By the time the Local Government Act 1989 was enacted, the nature of a "review" conducted by an administrative tribunal as distinct from a court was well established in accordance with the principles enunciated in Drake's case. We see nothing in the language of the section to suggest that Parliament intended anything other than that traditional mode of merits review. The Tribunal members in the Raine Lodge determination, we note, had reservations as to whether the language of the section really led to the view which they provisionally adopted because in their own words "it may constrict the already narrow grounds of appeal more closely than a fair reading of their terms would justify".

We are fortified in these views by the following further consideration. It emerged in cross-examination of a number of expert witnesses relied upon by the Council that their expert opinion and reports were sought, not before Council made its decision, but rather only after the applicants commenced this proceeding. The Council, in our view, rightly invited us to consider material which was not before it when it made its initial decision. A review of the more restricted kind urged by Mr Lonie would concentrate upon the reasonableness of Council's view in light of the material which Council had before it.

It may be, that in considering an attack upon the validity of a special charge scheme under Section 185AA, the Tribunal would be obliged to approach the issue in the manner suggested by Mr Lonie - that is, as a court would. This section provides for the declaration of existing legal rights - not the conduct of a merits review.

We now consider what is the nature of the "special benefit" which must be present to justify the levy of the special charge.

The leading authority on the nature of the "special benefit" which is required to justify the levying of a special rate or charge is the decision of the High Court of Australia in City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 to which we referred earlier. Gibbs J. said:

"A work is of 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."

[1972] HCA 59; (1972) 128 CLR 305, 327

It seems that the special benefit need not be direct. See Raine Lodge Pty Ltd & Ors. v Wyndham City Council (1998) 22 AATR 23. In Nunn v Shire of Woorayl (1993) 10 AATR 108 one appellant was successful because as an absentee owner of vacant land he did not derive, it was said, a special benefit. In McDonald v City of Hawthorn (1993) 10 AATR 201 a differently constituted Tribunal declined to follow Nunn's case. If a benefit accrues to the land so as to make it more desirable and therefore more valuable for sale, the owner derives a special benefit even if his present use of the land does not provide it to him there and then. This was in accordance with dicta of Isaacs and Rich JJ in the High Court in Bankstown Municipal Council v Fripp (1919) 26 CLR 398. We prefer the McDonald's approach to the one in Nunn's case, if for no reason other than that it is consistent with the approach of the High Court in Fripp's case. We would not however lay stress upon the alleged increase in the value of the land as producing the relevant special benefit. It is a truism that the location of land is one of the most, if not the most important factor in its value. The "three Ps" of real estate are said to be "Position Position Position". 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.

The formulation of the first ground of review in Section 185 means that an applicant will succeed only if he or she secures a determination that he or she receives no special benefit from the proposed work. It would be insufficient to make out that ground merely to secure a finding that the alleged "special benefit" was less than asserted by the Council or even that the financial burden placed upon a particular applicant by the special charge was manifestly disproportionate to the "special benefit" which that applicant derived.

Likewise, the ground would not be made out merely by showing that the "special benefit" derived by an applicant formed no part of the reason for Council's decision to execute the works. To put it another way, a special benefit to a person, if it was found to exist, would be no less a special benefit and a bar to success by an applicant on the review ground established by Section 185(2)(b)(i) because the special benefit to the person was wholly incidental to the works project.

The provisions for special rates and charges in the Local Government Act 1958 made a distinction between private streets and other roads (including for instance main roads as designated under the Transport Act 1983). In the case of the former, special rate or charge schemes could be created to defray the cost of the entirety of the street construction. In the case of the latter, the power of councils was restricted to the construction of footpaths, kerbing and guttering. The corresponding provisions under the Local Government Act 1989 make no such distinction. In Ponsford v Shire of Mornington (30 May 1994) the Tribunal consisting of Ms Jane Monk and Mr Sharkey had to consider a number of issues in a number of related proceedings. One issue was the reasonableness of the distribution of the burden of certain works which were the subject of a special charge scheme. Land owners with land abutting a Government Road were required only to pay half the cost of the kerb and channel, whereas those abutting a "private" street were required to pay the whole. The Tribunal concluded that, since the 1989 Local Government Act made no distinction between private streets and Government roads, this distinction was without justification and we agree that the special rate and special charge provisions of the present Local Government Act do not draw a distinction between private streets and Government roads. Nevertheless, we are far from convinced that this distinction is wholly irrelevant as Ponsford's case would suggest. The Manningham City Council does not appear to agree with Ponsford's case because its policy and the special charge which it determined to levy did not seek recovery of the entire cost of the kerb and channel from the abutting land owners. Since no applicant has sought to review this special charge scheme on the ground of an unreasonable distribution amongst land owners, it is unnecessary for us to express any final view on the matter.

The following applicants made submissions at the hearing:

Not all of these persons were present throughout the whole of the hearing and some said that they spoke on behalf of other applicants not present. For instance, Ms Jensen said that she spoke on behalf of Mr & Mrs Walter, who are elderly and infirm pensioners, and other persons. In accordance with directions which we gave, applicants filed written submissions. Those who appeared at the hearing supplemented those submissions and cross-examined witnesses called by the Council. The most extensive submissions were made by Mr Dadswell, who is an owner but not an occupier of units at a recently constructed unit development at No. 161 - 171 Mitcham Road. None of the applicants called any witnesses. It was not suggested that they needed to deal with matters of fact in the character of witnesses and submit themselves to cross-examination The hearing occupied some 2½ days and the matters raised by the applicants, both in the course of formal submissions and incidentally in cross-examination, were wide ranging.

We trust that we do no injustice to the very full cases presented by the applicants by the following summary of the grounds upon which they seek review:

(a) None of the applicants derives any special benefit from the works. On the contrary, they receive a disbenefit because:

(i) the traffic on the road will come closer to their houses;

(ii) the widened road will attract more traffic and intensify noise and pollution problems.

(b) The benefits created by the road widening accrue wholly to the general class of car commuters and road transport in the eastern suburbs, not to the individual residents. The scheme is intended to develop a section of Mitcham Road as a through route and arterial road, and not as a means of access to abutting land owners. This reasoning was accepted by the Whitehorse City Council which elected not to levy any special charge upon its rate payers with respect to this scheme.

(c) Council failed to give proper notice of its intention to levy the special charge and established a "reference panel" to consider the proposed road widening which included almost no representation from the 68 land owners who are subjected to the special charge.

(d) The kerbing and channelling and footpaths are unnecessary.

(e) Far from enhancing the value of their properties, this road widening project will diminish property values because of increased traffic noise and pollution.

(f) There will be no net improvement to traffic safety for the abutting owners in entering or leaving their properties.

(g) The Council changed the formulation of the alleged "special benefits" which it said the land owners would derive and thereby changed the "criteria" specified by it (compare Section 163(2) Local Government Act 1989) without recommencing the process and re-advertising.

Mr Lonie on behalf of the Council submitted that each of the abutting land owners would derive a special benefit from the works. He referred us to Item 3.5 of the minutes of a Council meeting on 22 December 1998 with respect to the special charge which was in the following terms:

"3.5 Council considers that the land of the abutting owners will receive special benefits from the works which are over and above any benefit received by other residents and road users, namely:

(a) the value of the land will increase following the carrying out of the landscaping, and the construction of footpaths, vehicle crossings and kerb channel;

(b) the amenity of this section of Mitcham Road will be improved following the carrying out of the landscaping and the construction of footpaths, vehicle crossings and kerb and channel;

(c) the properties will be benefited by improved access, both pedestrian and vehicular;

(d) the properties will be benefited by the construction of kerb and channel work as this will control drainage from the road and ensure that there is no discharge of road water onto the properties and prevent scarring of the unsealed shoulders."

In support of Council's contentions that these benefits would be derived by abutting land owners, Mr Lonie called Mr J.A.D. Wallace, a Valuer and Estate Agent; Mr P.J. Charlton, a Consulting Engineer employed by Hyder Consulting Australia Pty Ltd, the consultant engineers to the road widening project; Mr P.C.J. Thompson, Traffic Planner and Project Manager of Hyder Consulting Australia Pty Ltd; Mr G.R. Gibbs, a Team Leader, Regional Strategies with VicRoads, and Mr P. West, an Environmental Scientist with VicRoads.

We do not believe that the evidence justifies any finding that the completion of this project would either certainly or likely increase the value of these applicants' land. Mr Wallace used, as an example of the process likely to affect land values on the relevant section of Mitcham Road, the experience of property values in High Street, Lower Templestowe, between Manningham Road and Lynwood Crescent, which underwent a similar project completed in July 1997. It is unnecessary to go to any detailed sales information relative to properties on High Street. Mr Wallace summarised the effect of his findings as follows. The capital value of the properties on High Street continued to appreciate. The appreciation was at a lesser rate than on side streets because residential properties on main roads are less sought after. In answer to a question from the presiding member he said that the values in High Street were now at the levels which they would have been had the road construction not taken place. If one accepts this evidence as a paradigm of what will likely occur in Mitcham Road when this project is completed, it would suggest that the project will be value neutral. In his written report Mr Wallace said of the likely effect of the execution of these works on the value of properties on the relevant section of Mitcham Road:

"In my view, the range of prospective buyers for property in the Mitcham North, Donvale area will not be reduced as a result of the reconstruction works to Mitcham Road and the cost of these works. The benefit and cost of these works will be captured in increased market value and sale prices.

Therefore, I do not expect such properties to fall in their realisable market value. In my view, they are likely to increase in value as a result of the completion of the works as proposed."

In his viva voce evidence he gave as one of the reasons for the expectation of an increase in values, that the uncertainty attaching to Mitcham Road as a result of the threat of these road widening works and the levying of a special charge would be eliminated and prospective purchasers would no longer be left to speculate as to precisely what levy would placed upon them. Likewise, prospective vendors would be relieved of the burden of having to disclose the likelihood of a special charge of some undetermined amount to be levied at some undetermined point in the future. When cross-examined about properties which had recently come on to the market, Mr Wallace said that present land owners might be faced with the necessity to make a decision as to whether they would stay and pay the levy. In our view it would be improper to regard as a special benefit, the removal of a cloud of uncertainty which is created by the very threat of the special charge itself. The only comparable sales to which Mr Wallace referred did not in our view support the thesis that values on Mitcham Road would rise.

The evidence justifies a finding that execution of these works will improve the amenity of this section of Mitcham Road following the carrying out of landscaping, construction of footpaths, vehicle crossings and kerb and channels. We have been provided with extensive photographic material and have had the opportunity of viewing a video shot by Mr Dadswell. Mr Lancaster described the serious difficulties which his wife suffered in trying to walk along the existing footpath in the section of Mitcham Road which is constructed of screenings. He said that she damaged a number of pairs of high heeled shoes. Mr Lancaster mentioned this, not for the purpose of making an admission, but rather because he and his wife, as distinct from his son, whom he is representing, live in a side street off Mitcham Road. The construction of an orthodox suburban paved footpath will obviously improve the amenity of the area. Mr Dadswell described difficulties which the residents of the unit development at No. 63 - 71 Mitcham Road suffered as a result of the absence of a paved footpath. The postman who attends on a motorbike bogged on a few occasions and his motorbike and other heavier vehicles scarred and damaged the grassed area outside the wall of the unit development. As a result a short section of narrow footpath was constructed to provide paved access to the post boxes. Once again, the orthodox suburban footpaths on both sides (with a shared bicycle track on one side) will alleviate problems such as this.

As we said, Mr Lancaster made his statement, not for the purpose of supporting Council's case, but rather to demonstrate that he and his wife, rather than his son, would be the beneficiaries of the improvement of the footpath. As Mr Byard and Mr Liston noted in the Raine Lodge case, the boundary between properties that enjoy a special advantage and those that do not in most cases "hazy". For the reasons already given, we believe it is no part of the Tribunal's jurisdiction in considering whether a special benefit has been shown to exist to make findings as to whether there are other properties outside the area of the special charge which do derive a special benefit. We are satisfied that the benefit of a properly constructed footpath accrues in a special and primary fashion to the property to which the footpath abuts and the immediately neighbouring properties and that the benefit exists to a greater degree for those properties than for properties abutting other streets, even if residents in those properties may have occasion from time to time to use the footpath.

The present table drain arrangements are, as the photographs depict, unsightly. Their replacement with orthodox suburban kerbing and channelling will improve the visual amenity of the properties. In one sense every person in the State derives a benefit from the improvement of the visual amenity of any street and certainly residents in the suburb derive a benefit from improvement to the visual amenity of any street in the suburb. There is however, a special benefit derived by the residents of the street itself. In our view, this improvement to visual amenity is to be regarded as a special benefit. Mr Charlton said that his observation of the present table drains was that their levels were not well set, leading to a serious ponding problem which would be alleviated by their replacement with kerbing and channel. Once again, this provides an improvement to the amenity of the abutting properties and is to be regarded as a special benefit for the purposes of Section 185 of the Local Government Act.

In our view the evidence remains equivocal as to whether there are significant advantages of improved access as a result of these works. Mr Lonie relied upon the evidence of Mr Gibbs of VicRoads and Mr Thompson of Hyder Consultants. According to Mr Thompson there would be an enhancement for all vehicular access manoeuvres in and out of abutting properties with the exception of right turns out of properties. As to these latter manoeuvres, he said that the time taken would be approximately the same as under present arrangements. The residents generally expressed the view, both in cross-examination and submissions, that crossing four lanes of traffic as a right turn out of the properties would, under the revised arrangements, be a more time consuming and hazardous exercise than at present. Mr Gibbs said that the improved capacity of the road would allow for more gaps and this would offset the increased distance and complexity of crossing four lanes as against two. Mr Gibbs also suggested that the 2.8m painted median strip to be included on the widened road would provide a "propping" space for a car turned at a 45o angle to the road alignment. We were not provided with any definitive statistics or principles as to what is regarded as an acceptable "propping space" though both Mr Thompson and Mr Gibbs agreed that the orthodox allowance for such a manoeuvre is 6m and a constructed median strip surrounded by concrete kerbing. Mr Thompson thought that the use of the painted median strip for "propping" would be dangerous and unrealistic.

An unsealed road or track on one side of the road now serves as a "service road" for some distance. Mr Falvey, a builder who frequently drives trailers, says that it provides a much easier means of access to the carriageway of Mitcham Road than would the proposed design. Mr Lonie submitted that whatever intermediate use could be made of a service road, in fact Mr Falvey would have to make his way into the main carriageway at some point and he would be confronted with similar difficulties both in the present configuration of the relevant section of Mitcham Road and in its reconstructed configuration.

All applicants to one degree or another submitted that the widening of the road would lead to a higher traffic usage which would dissipate any advantages of access which would otherwise accrue. This was denied by the Council's witnesses who said that once a further extension of the Eastern Freeway was completed, traffic levels on Mitcham road would decrease below 20,000. The decrease would be even greater if additional "off ramps" were constructed between Springvale Road and Ringwood. The absence from the present design of such ramps led to a further 4,000 vehicles per day being required to use this section of Mitcham Road, even if the further freeway extension were completed. It was conceded that no final commitment has been made to construct this freeway extension and that there has been bitter public debate based on environmental grounds. It was suggested that some parts of the freeway extension may have to be by way of a tunnel.

In a general sense we think that the widened carriageway on Mitcham Road is likely to attract more traffic. In making this finding we realise that we are taking a view different apparently from what VicRoads says to be derived from their modelling exercises. Nevertheless, the most recent traffic count showing 29,000 vehicles per day using this section of Mitcham Road, being higher than the projected 24,000 upon which the Council's expert witnesses worked until the further traffic count was brought to light, shows that even the most expert computer driven projections are guesses, albeit educated ones. Future traffic levels are a matter of opinion, not a matter of fact. On balance, the advantages of improved access deriving from the execution of these works are offset by the likely increase in traffic volumes and the intrinsically more complex and difficult manoeuvres entailed in right turning egress from the properties. Ultimately the further Eastern Freeway extension is neither here nor there for these purposes. It is not contingent upon this road widening much less upon the levy of the special charge. If it goes ahead or when it goes ahead, if one takes a more sanguine view, these residents will secure a substantial reduction in traffic past their doorstep. This will occur whether Mitcham Road itself is widened or not. One might think that the reduction of traffic would be even more dramatic if the conditions on Mitcham Road remain as they are now. Vehicles would be more likely to seek out an alternative route.

We do not believe the evidence justifies any finding that the construction of kerb and channel work will control drainage from the road and ensure that there is no discharge of road water onto properties. We have already accepted that a special benefit derives from the improvement to the visual amenity of the abutting properties resulting from the construction of kerbing and channelling in lieu of table drains. The sealing of unsealed shoulders is in effect part of that special benefit. The only evidence of what we might call direct drainage problems under the present arrangements related to inundation of a property at No. 206 Mitcham Road. That property is situated in the City of Whitehorse and is not part of this proposed special charge scheme. The other drainage problems exist in side streets into whose drainage system the present table drains and the new proposed underground drains will discharge. Hyder Consulting carried out a study of these drains and found them substandard. As a result, in the case of the most serious rainfall anticipated in a ten year period, the drainage pits at the head of those streets would be likely to overflow. It was suggested that this would not affect the Mitcham Road properties, though some of the applicants said that their backyards had been affected by floods from these pits in the past. These problems will intensify because the increased paved area on Mitcham Road will cause more water to be discharged into the already inadequate stormwater drainage system in the side streets.

All residents to one degree or another asserted that they would suffer serious aggravation of the noise problems which they already suffered once the road was widened. Section 185 says nothing as to the impact of disbenefits. It would seem appropriate however to take account of any established disbenefit as a factor to set off against any proven special benefit. If it outweighed the proven special benefit, the result would be to leave no net special benefit established. What then does the evidence prove? Once again, this is a very complex area. The perception of sound is very difficult to measure, as Mr West noted. The ordinary equipment used to measure decibels is very bland and not necessarily a very accurate representation of human perception of sound. He said that there would be unlikely to be any perceptible increase in sound. Bringing the carriageway closer to the houses might create an increase of 3dB(A) in noise, an increase which he said would be scarcely perceptible. On the other hand, the lanes travelling in the opposite direction would be moved further from any relevant house and the two effects would tend to balance one another off. There are some areas of thick or relatively thick vegetation in front of houses on what is now the road reserve which vegetation would have to be removed. This seemed a particular problem for Mr Milonakos. Mr West said that all but the thickest of vegetation provided very little protection against sound. He also noted that the asphalt surface proposed to be used on the widened road would be less noisy than the present road surface which is in relatively poor condition and is by its coarse nature calculated to generate more road noise. Further, he said that the improved alignments and traffic flow would lead to less noise by way of acceleration and deceleration.

In the result, we are not satisfied that any material disbenefit by way of increased noise has been proved to be likely on the balance of probabilities as a result of the widening of the road.

A further alleged disbenefit was said to derive from the likely use of the painted median strip as an additional lane of traffic rather than as a point of division or as a means of facilitating right hand turns. Given that there are to be seven fully constructed concrete pedestrian refuges over the distance of 1.2km we regard this eventuality as unlikely.

The Council's evidence was to the effect that there were no parking restrictions proposed immediately for the widened section. There had been some consideration of imposing "clearway" restrictions in the morning and afternoon peak periods. Various applicants said that the presence of parked vehicles would tend to dissipate the improvements which were said to derive from the additional lane of traffic both ways. In our view this is a not implausible concern. It fortifies us in the findings that we made as to the lack of proven special benefit from improved access for vehicular traffic to the various abutting properties.

We should say that we regard the various allegations of misleading conduct by Councillors, inappropriate composition of the reference panel and so forth, as irrelevant to this proceeding. The grounds for review are set out in Section 185 and are as we have sought to indicate very restricted indeed. They do not extend to any of these matters. Whether or not these matters would assume any significance in a court proceeding or in an application for a declaration of invalidity of the special charge under Section 185AA of the Local Government Act, it is unnecessary for us to say. We should add that we do not believe that the "criteria" referred to in Section 163(2) are the description of the special benefit alleged to flow from the works to be financed by the special charge. Even if Mr Dadswell was correct and these matters are "criteria" we could not grant any relief based upon any alleged change of those "criteria" in the present proceeding.

The decision of the Whitehorse City Council not to levy a special charge cannot in itself prove that these residents do not receive a "special benefit". Its significance even as a debating point is almost destroyed when it is considered that Whitehorse's contribution is less than 1% of the cost of the works.

We reject the contention that the kerbing, channelling and footpaths are unnecessary. We say this first because as already indicated, they are calculated to bestow a special benefit upon the abutting land owners. Secondly they are a necessary part of the proper delineation of the road surface. It is the absence of these things and the unsealed shoulders on the road that represent one of the principal defects of the present road configuration. As Mr Charlton noted, the kerb and channelling supports the pavement and serves an important role by that means. It would be impossible in the widened configuration for table drains to be used because there is simply not sufficient room for them. What we have already said indicates that we accept that the kerbing and channelling does not represent a solution for any drainage problems which might be encountered by these land owners.

What do these findings mean for the fate of this proceeding? In the result we find that a special benefit is provided to these applicants, albeit that it is on balance, a very minor one. It has not been demonstrated that the proposed works are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly in terms of Section 185(2)(b)(iv), assuming the sub-paragraph is applicable.

We did not understand any applicant to attack the basis of distribution of the charge.

Mr Lonie said that further investigation of the history of the abutting properties had disclosed that certain works had been constructed at the unit development at 163-171 Mitcham Road to the satisfaction of the then Responsible Authority in accordance with the provisions of a planning permit. Accordingly, Council now no longer sought reimbursement for the cost of construction of driveways for those land owners. He proposed variations to accomplish the desired result.

We therefore vary the liability for the special charge for those land owners by the reduction of their liability in the sum of approximately $95 each but otherwise confirm the special charge. The amended schedule showing the variations is annexed to our reasons.

We cannot part from this matter without some further comment. These applicants have failed in their review application principally because we have found that there exists some special benefit for them. We are far from saying that if we were at large to exercise the same discretions as the Council did that we would nevertheless subject these land owners to the special charge. We have no jurisdiction to make a determination whether the special benefit which is demonstrated to accrue to these land owners is proportionate to the special charge which is being imposed upon them. It is troubling to reflect that these land owners being, so far as we can make out, people of modest means, are being subjected to charges which, whilst not large enough to lead them to invest in professional representation, are a substantial impost upon them - particularly the aged upon whose minds these sorts of matters tend to prey to an inordinate degree. The special benefit which we have found is on balance minor and wholly incidental. The features exhibited by the design of this proposed widened road are dictated solely by Mitcham Road's role as a main road. This project is being carried out now, not because of the entreaties of the land owners, but because of the initiative of VicRoads as the authority responsible for main roads in the metropolitan area. 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.

1. The Mitcham Road Special Charge (Springvale Road to Park Road) declared by the City of Manningham, 22 December 1998 is varied in accordance with the attached table in relation to certain applicants.

2. Save for those variations, the applications are dismissed and the special charge is confirmed.