Walter & Or v Manningham CC [1999] VCAT 987

Walter & Or v Manningham CC [1999] VCAT 987 - VCAT 1999 case summary — Zoe

[33]

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.

[57]

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".

[110]

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.

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Court

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Before

Source

Judgment (112 paragraphs)

Walter & Or v Manningham CC [1999] VCAT 987 (31 May 1999)

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Legislation Cited (9)

Cases Cited (3)