BUCKLEY and TOWN OF VICTORIA PARK
[2022] WASAT 46
•26 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: BUCKLEY and TOWN OF VICTORIA PARK [2022] WASAT 46
MEMBER: MS KY LOH, MEMBER
HEARD: 15 MARCH 2022
DELIVERED : 26 MAY 2022
FILE NO/S: DR 201 of 2021
BETWEEN: BRUCE WILLIA BUCKLEY
GLENDA CONSTANCE BUCKLEY
Applicants
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Local government - Underground power - Whether service charge properly imposed - Whether owners obtain benefit from state underground power program works - Whether issues of fairness and equity are relevant
Legislation:
Local Government (Financial Management) Regulations 1996 (WA), reg 54
Local Government Act 1995 (WA), s 1.3, s 5.20, s 6.32(1), s 6.32(1)(c), s 6.38(1), s 6.38(2), s 6.38(3), s 6.38(4), s 6.76, s 6.82(1), s 6.82(2), s 6.82(3), s 6.82(5), s 6.82(6)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | T McCarthy (as representative) |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Woodward and City of Melville [2015] WASAT 90
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of a property on Gresham Street in Victoria Park, Dr and Mrs Buckley (owners), object to the service charge imposed by the Town of Victoria Park (Town) as a contribution towards the cost of implementing the State Underground Power Program (SUPP) within the Town.
The property is within the Sunbury Park estate.
As the developer of the Sunbury Park estate provided underground power as part of subdivisional approval, the owners say it is now unfair to levy the SUPP charge against them.
Further, they challenge whether the SUPP works have provided any benefit to the property.
For reasons set out below, I am satisfied that the SUPP charge was properly imposed by the Town as it relates to the provision of underground electricity to the property.
The expert evidence establishes that the SUPP works will increase the reliability and safety of electricity supply to customers, including the owners. Further, the removal of the overhead powerlines on the opposite side of Gresham Street has improved aesthetics in that area.
Finally, issues of fairness and equity are not relevant in determining whether the SUPP charge was 'properly' imposed.
Issue for determination
The primary issue for determination is whether the SUPP charge was imposed in accordance with the Local Government Act 1995 (WA) (the Act).
In considering the primary issue, the following secondary issues arise:
1)Was the SUPP charge imposed by the Town by the adoption of the annual budget, in accordance with s 6.32(1) of the Act?
2)Is the SUPP charge a 'service charge' which can be imposed under s 6.38(1) of the Act; that is, is it a charge to meet the cost to the Town in the provision of the prescribed work, service or facility in relation to the land?
3)If the answers to 1) and 2) are 'yes', can issues of fairness or equity be nonetheless considered in determining whether the SUPP charge was properly imposed?
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
SUPP initiative
The SUPP is a State government initiative to retrospectively convert overhead distribution powerlines providing power to established suburbs in the Perth metropolitan area to underground power supply.
It was initiated following a severe storm in the metropolitan area in 1994 which left tens of thousands of residential properties in the metropolitan area without power supply for several days.
The SUPP has been carried out over several 'rounds', with the State government calling for local governments to submit their expressions of interest for the sixth round (SUPP6) in 2015.
In 2017, of 17 projects approved for funding under the SUPP6, the Town was successful in its bid for three of its nominated project areas, that being precincts described as 'Carlisle North', 'Victoria Park East' (VPE) and 'Victoria Park West'.
Under the SUPP6 initiative, the local government and the State government (through Western Power and Energy Policy WA) are joint project partners, with the local government expected to contribute at least 50% towards the cost of the project.
Western Power manages the SUPP6 project.
The Town's 50% contribution is raised principally through a service charge, subsidised in part by the Town's own financial reserves.
The guidelines for SUPP6 funding (Guidelines) clarifies that the State will only fund the retrospective conversion of distribution lines, not transmission lines.
The Guidelines provide that proposals will be ranked against the following factors:
a)network priority - where priority is given to areas that offer larger improvements to electricity network security;
b)local government funding contribution offer - where priority is given to proposals that offer to pay a greater percentage of project costs; and
c)community support - where priority is given to areas that have a higher level of community support.
To assess the level of community support, the Guidelines provide for the Evaluation Team (comprising representatives from the Department of Finance, Western Power and the Western Australian Local Government Association) to be responsible for conducting a survey of property owners in respect of proposals under consideration.
The local government will be asked to provide names and addresses to the survey company engaged by the Evaluation Team.
SUPP charge
At its ordinary council meeting of 19 November 2019, the council of the Town resolved to proceed with the three SUPP6 projects despite cost estimates for the projects being considerably higher than originally provided to the Town.
Relevantly, the council approved the imposition of service charges of $3,849 per property within the VPE precinct, and the adoption of a discount model that would allow for a discount to certain property owners, including a discount of $750 for any property with a preexisting underground connection via a uni pillar.
At its special council meeting of 2 August 2021, the council resolved, by absolute majority, to adopt the annual budget for 20212022, which included the imposition of a service charge for properties within the VPE precinct of $3,849 per property.
Owners' property
The property holds the street address of 64 Gresham Street, Victoria Park, and fronts Gresham Street.
It is part of the Sunbury Park estate, which is bordered by Gresham Street, Mytilene Drive, Miller Road and Sunbury Road.
The developer of the Sunbury Park estate received subdivision approval for the development in December 2003.
As a condition of that subdivision approval, the developer proponent was required to make arrangements for the provision of underground electricity to the approved lots to the satisfaction of the Western Australian Planning Commission.
A note to that condition stated that Western Power only provides one point of supply per green title lot, and that the developer was advised to liaise with Western Power regarding electricity supply arrangements to service the proposed lots, including the possible relocation of any existing overhead power supply.
Power is supplied to the property by underground consumer mains connected to an existing uni pillar.
The property is located between Sunbury Road and Mytilene Drive, and is within the VPE precinct area.
The majority of the Sunbury Park estate is excluded from the VPE precinct except for some other properties fronting Gresham Street.
There were pre-existing overhead powerlines on the other side of Gresham Street across from the property prior to the SUPP6 works.
By email dated 23 August 2016, the owners advised the Town's rates department that they had moved into the property and requested that the Town's record of their address be amended to the property address.
Unfortunately, the survey form sent to the owners in 2016 within the (then) proposed VPE SUPP project area was sent to the owners' previous mailing address.
By letter dated 21 November 2019, the Town wrote to the owners advising of its successful bid for three of its SUPP6 projects, including the VPE precinct. They were advised that their portion of the cost of the project would be charged to them through a service charge on their 2020-2021 rate notice.
By letter dated 16 April 2021, the Town wrote to the owners advising the service charge payable by the owners was deferred to the 20212022 rate notice, and attached a form seeking an indication of whether they preferred to pay in instalments over seven years.
The owners returned the form on or around 27 June 2021 nominating the instalment option, although stating that they did not believe anything was owed as they had underground power already.
On 24 August 2021, a rate notice was issued by the Town to the owners which included the SUPP charge of $3,099 (reflecting a discount of $750) at the instalment amount of $442.71.
On 25 September 2021, the owners applied to the Tribunal to revoke the SUPP charge.
The owners' case
The owners dispute that they derive any benefit from the SUPP6 project, as they already had underground power which the developer was required to arrange as a condition of subdivision.
In particular, they deny that the property should have been included in the SUPP6 project as the property is not being serviced by ageing overhead power infrastructure.
Alternatively, they argue that it would be unfair to impose a SUPP charge when they already effectively contributed through underground power works undertaken by the developer.
Further, they deny that there will be any aesthetic benefits propounded by the Town by the removal of overhead powerlines on the other side of Gresham Street.
The owners also challenge the lack of consultation by the Town with the owners and other affected owners about the SUPP6 project, in circumstances where community support is relevant to assessing a SUPP6 project bid.
The owners rely on signed witness statements of Messrs Gary Green and Geoffrey Willis, who are owners of 62 and 66 Gresham Street respectively.
The Town's case
The Town contends that the SUPP charge has been properly imposed on the owners for the following reasons.
Firstly, the property fronts Gresham Street (and has a Gresham Street postal address) which had overhead powerlines on the other side of Gresham Street, which have been removed as part of SUPP6.
This is consistent with the Town's approach to include properties in the project area where they front streets with pre-existing overhead powerlines.
The removal of the powerlines will deliver the following benefits to properties on both sides of Gresham Street, including:
a)improved public safety from removal of timber poles;
b)improved street lighting;
c)improved reliability and power security;
d)improved street appearance;
e)increased property value; and
f)reduction in street tree pruning.
Secondly, the owners' uni pillar is supplied by underground consumer mains from substation '62 Gresham St', which itself is supplied by aerial infrastructure which will be removed as part of SUPP6.
The Town disputes that as part of a subdivision condition the developer of the Sunbury Park estate was required to re-locate preexisting overhead network electricity cables which existed in parts of Sunbury Road and Gresham Street. Whilst the developer ultimately chose to put underground the network cables on Sunbury Road, the developer did not choose to do the same for the network cables on Gresham Street.
The Town relies on the evidence of Mr Kevin Poh of Western Power, and Messrs John Wong and Terrance McCarthy of the Town.
Witness evidence
Kevin Poh
Mr Poh is a senior planning engineer at Western Power since March 2022. Prior to this position, he was the senior project engineer for three years and has been employed by Western Power for the last 13 years.
He holds a degree in electrical engineering (with Honours) from Curtin University in 2004.
As an electrical engineer at Western Power, he has been involved in the electrical design phase, designing solutions for customers on how to connect to the Western Power network, and estimating the cost of materials to supply power to customers. He has also been involved in project programming.
For the VPE SUPP6 project, he was tasked as the senior project engineer managing the design to end-of-construction phase.
In providing his evidence, he had access to data on Western Power's SPIDAWEB record of assets to verify how the property was connected to power prior to the VPE SUPP6 project.
In his witness statement, he confirms that:
a)there were network distribution powerlines in Gresham Street between Sunbury Road and Mytilene Drive (located on the other side of the street from the owners' property) prior to VPE SUPP6 project which have now been removed and replaced underground; and
b)prior to the VPE SUPP6 project, the owners' property had an existing underground electricity supply which was connected to the Western Power network infrastructure via underground cable but was reliant on the surrounding overhead infrastructure for electricity supply to the Sunbury Park estate (including the property).
In his oral testimony, he clarifies that the property was not a standalone power system but was powered by substation '64 Gresham St' which was, itself, reliant on aerial infrastructure for incoming supply, including overhead Pole S1001341.
He confirmed that as part of the SUPP6 project, they removed Pole S1001341 and extended underground cables to new substation '10 Axton Avenue'.
Pole S1001341 was situated between the properties at 58 and 60 Sunbury Road.
While he agrees that a new pole has been erected between 46 and 48 Sunbury Road, he does not consider it a replacement pole as the new pole feeds a larger network to supply Victoria Park East and is located on the edge of the project boundary.
He states that the main purpose of the SUPP6 works is to improve reliability of supply to customers and to address safety concerns, in the form of:
a)an extension of the underground network, with approximately 450 kilometres of additional underground cables being laid which run back to multiple substations and interface poles, reducing the likelihood of power outages due to the cables being affected by weather or other events; and
b)reducing overall number of overhead poles, leaving only overhead interface poles to connect back to the Western Power network (located at the edge of the boundary of the project area).
John Wong
Mr Wong is a civil engineer, and acts as the Manager Technical Services for the Town.
He worked on the SUPP6 project team from 2018, and was called to give evidence on council approval for the imposition of the SUPP charge, as well as confirming that the Town had issued the owners with a rates notice which included the SUPP charge.
The owners do not dispute these factual matters.
Terrance McCarthy
Mr McCarthy is the underground power project co-ordinator for the Town.
He is a qualified surveyor and cartographer and has had 25 to 35 years of experience working for local governments.
Mr McCarthy was involved in rounds 2 to 6 of the SUPP for the Town.
Mr McCarthy relies on the State government website to provide the following relevant background to the SUPP:
The Program was established in 1996 to improve the reliability of electricity supply, after a severe storm in 1994 caused major disruptions in Perth and southern parts of Western Australia. Western Power later reported that 80 per cent of the power failures could be attributed to trees and branches falling on power lines.
The Program has operated successful since its inception, and about 55 per cent of houses in the Perth metropolitan area now have underground power. While property developers must underground electricity supply in new sub-divisions, about 370,000 homes in Perth and 90,000 homes in regional urban areas are still connected to Western Power's overhead distribution system.
He confirms that the council had unanimously adopted its budget for 2021-2022, which included provision for the SUPP charge as a service charge.
He states that the Town's policy of imposing underground power service charges to properties which had an existing underground electricity connection prior to the implementation of an underground power project has been consistently applied in three previous SUPP projects.
It is also the Town's policy to apply a discount to these properties.
Bruce Buckley
Dr Buckley is a professional meteorologist.
Dr Buckley states that prior to the SUPP6, the developer of the estate would have incurred the cost of undergrounding overhead powerlines and infrastructure that formerly ran along Sunbury Road between Miller Street and Gresham Street, and the underground power within Sunbury Park estate.
He says that he was not given the opportunity to provide his views on the SUPP6 project when the survey form was sent to his previous address in 2016. He only received advice on the SUPP6 project when the Town sent its letter in November 2019.
He also attests to numerous unsuccessful attempts by the owners (and in some cases, other affected Gresham Street owners) to seek review or resolution of the situation, including approaches to the Member for Victoria Park, the Mayor and Chief Executive Officer of the Town, and the Minister for Energy.
Dr Buckley does not agree that there are benefits to the property from the removal of powerlines across Gresham Road as submitted by the Town in [50]:
a)there are no timber poles within the boundary of the Sunbury Park estate;
b)the majority of the streetlights on Gresham Street are embedded in street trees;
c)the property is already connected to underground power;
d)the powerlines were largely obscured by leaves of street trees and so any improvements in visual appeal are largely minor;
e)he does not think there will be any change in the value of his property or the other affected Gresham Street properties; and
f)the street trees along the southern side of Gresham Street in Sunbury Park estate have not been pruned for the last 18 years.
Gary Green
Mr Green is the owner of the property at 62 Gresham Street, Victoria Park.
He considers that the SUPP charge is inequitable as the developer of the Sunbury Park estate had already passed on the cost of sinking overhead powerlines and removing overhead power connections within the estate to purchasers of properties in the Sunbury Park estate.
He does not consider that his property had any form of overhead power connection to the powerlines that ran along the opposite side of Gresham Street.
He was present at a meeting with Mr Wong, the owners and Geoffrey and Dorothy Willis (the owners of 66 Gresham Street), at which he recalls Mr Wong conceding that all of their properties were serviced by underground power and should have been exempt from the VPE precinct area.
Geoffrey Willis
Mr Willis is an owner of the property at 66 Gresham Street, Victoria Park.
He attests that, at a visit to the Town's office, he had unsuccessfully objected to the SUPP charge by submitting that he had already paid for underground power in the purchase of his land, by reference to his builder's plans.
Legal framework
The Act provides for a system of local government, by, relevantly, providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs: s 1.3 of the Act.
Relevantly, a local government has the power to impose on owners of land within a defined part of the district a service charge for a financial year to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land: s. 6.38(1) of the Act.
Underground electricity is, relevantly, a prescribed work, service or facility for the purposes of s 6.38(1) of the Act: reg 54 of the Local Government (Financial Management) Regulations 1996 (WA) (Regulations).
There are constraints on the use of the monies raised from a service charge by a local government, such as the purpose for which it was raised (see s 6.38(3) and s 6.38(4) of the Act), when it is to be used (see s 6.38(2) of the Act), and how any excess monies is to be treated (see s 6.82(5) and s 6.82(6) of the Act).
A local government imposes a service charge on land within its district by the adoption of the annual budget under s 6.32(1)(c) of the Act: Woodward and City of Melville [2015] WASAT 90 (Woodward) at [18].
The imposition of the service charge must be adopted by the council of the local government by absolute majority: see s 6.32(1)(c), as augmented by s 5.20 of the Act.
Where there is a question of general interest as to whether a service charge was imposed in accordance with the Act, any person may relevantly refer the question to the Tribunal to have it resolved: s 6.82(1) of the Act.
A person may only refer the question under s 6.82(1) of the Act if his or her individual case could not otherwise have been resolved under s 6.76: s 6.82(2) of the Act.
Section 6.76 of the Act provides a person with a right of objection to the rate record of the local government on grounds which do not appear relevant to these proceedings.
If the Tribunal is of the opinion that the service charge has been improperly imposed, it may make an order quashing the service charge: s 6.82(3) of the Act.
Consideration
Secondary issue 1 - was the SUPP charge imposed by the adoption of the annual budget?
I am satisfied that the Town has imposed the SUPP charge of $3,849 per property within the VPE precinct in accordance with the Act, through the adoption of the annual budget by resolution of the council on 2 August 2021.
Secondary issue 2 – is the SUPP charge a 'service charge'?
I am also satisfied that the SUPP charge is a 'service charge' within the meaning of s 6.38(1) of the Act, as it is a charge to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land, namely, underground electricity (as prescribed under reg 54 of the Regulations).
I am satisfied on the evidence of Mr Poh that the SUPP6 works relate to the provision of underground electricity.
I accept that the SUPP6 works will address reliability of supply to customers and to address safety concerns by the removal of overhead powerlines and power poles and the laying of additional underground cables, which aim to reduce the likelihood of power outages.
This is clearly related to the provision of underground power, and so is a proper basis for imposing a service charge on a precinct that will benefit from the increased reliability of supply and safety improvements.
How this affects the owners is that the SUPP6 works involved the removal of aerial infrastructure on which their power supply was reliant and extended underground cables to a new substation.
In particular, overhead Pole S1001341 was removed, which was connected to substation '64 Gresham St' that was powering the property.
These works directly impact on the way electricity was being supplied to the owners, which, in the expert opinion of Mr Poh, are directed towards the purposes of improving reliability and safety.
Whilst the owners may not agree with that expert assessment, they do not have the engineering expertise to dispute his opinion, and so I accept his evidence as to the effect, purpose and potential outcome of the SUPP6 works on the electrical supply to the property.
Whilst the owners rely on what Mr Wong said at a meeting about how the property was serviced by underground power, this was not put to Mr Wong in cross-examination. In any event, Mr Poh has been called to give evidence about how the property was (and is) connected to power, and I am satisfied that he has the requisite expertise and knowledge to give evidence on this issue.
Finally, there is some debate between the parties about whether there is any benefit to the removal of overhead powerlines across from the property. Whilst not a determinative factor, I accept that there is at least some aesthetic benefit.
I am further satisfied on the Town's evidence, as reflected in the council minutes, that the Town is contributing towards the cost of the SUPP6 works.
As such, I find that the SUPP charge has been properly raised to the meet the cost to the Town of the SUPP6 works, which relate to the provision of underground electricity.
Secondary issue 3 - can issues of fairness or equity be considered?
Under s 6.82(1) of the Act, the Tribunal's jurisdiction is only enlivened if there is a question about whether a service charge was 'imposed in accordance with the Act'.
For the avoidance of doubt, s 6.82(3) of the Act then makes clear that it is only in circumstances where the service charge has been 'improperly' imposed will the Tribunal have jurisdiction to make an order quashing the service charge.
Questions of whether the service charge has been properly imposed in accordance with the Act require consideration of the legislative limits on a local government's power to impose a service charge.
In my view, it does not permit the Tribunal to consider whether the service charge, if imposed in accordance with those legislative confines, is fair or equitable.
This is consistent with this Tribunal's view in Woodward at [27] that a complaint that a service charge was 'unfair and unjust' does not involve a challenge to the lawfulness of the imposition of the service charge.
On the basis of my findings in [96] and [108] I have no further scope to consider whether the SUPP charge was fairly or equitably imposed, even accepting that the owners have contributed to other undergrounding works done as part of the development of the Sunbury Park estate.
Finally, to the extent that the owners challenge the adequacy of consultation, this was ultimately the responsibility of the Evaluation Team, not the Town, in assessing the strengths of the SUPP6 project bids.
Indeed, whether the property qualified for inclusion in SUPP6 under the terms of the Guidelines is also a moot point, as it was for the State government to be satisfied whether the VPE SUPP6 project complied with its own Guidelines.
Having been so satisfied, the local government's responsibility is to ensure that there is a proper basis for imposing a service charge under the Act, which, by reason of [96] and [108], I so find.
Primary issue - was the SUPP charge imposed in accordance with the Act?
For reasons set out above, I am satisfied that the SUPP charge was imposed in accordance with the Act.
Conclusion
The service charge for properties within the VPE precinct of the SUPP6 imposed by the Town on 2 August 2021 for the 2021-2022 financial year was imposed in accordance with the Act.
Orders
The Tribunal makes the following order:
1.The applicants' application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
26 MAY 2022
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