Casey City Council v Carson Simpson Pty Ltd - [2007] VSC 25

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST

No. 8789 of 2006

CASEY CITY COUNCIL	Appellant
v
CARSON SIMPSON PTY LTD	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 NOVEMBER 2006
DATE OF JUDGMENT:	5 JULY 2007
CASE MAY BE CITED AS:	CASEY CITY COUNCIL v CARSON SIMPSON PTY LTD
MEDIUM NEUTRAL CITATION:	[2007] VSC 25

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Appeal from Victorian Civil and Administrative Tribunal on question of law – power and obligation to impose Development Contributions Plan levy – no discretion in responsible authority or VCAT on review to vary terms of the levy imposed by the planning scheme – consequential discretion in Council as collecting agency to accept works in lieu of levy – statutory alternatives as to form of appropriate condition – matter remitted to Tribunal for further consideration of appropriate alternative –Victorian Civil and Administrative Tribunal Act 1995 s.148 - Planning and Environment Act1987 ss.6(2)(j), 46I, 46J, 46K, 46N, 46P, 46Q, 62(1), 62(5)-(6), 80, 84B(1), 85(1)(e).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. Dreyfus QC with Mr R. Appadurai	Russell Kennedy
For the Respondent	Mr C. Wren SC with Mr M. Townsend	Minter Ellison

HIS HONOUR:

This is an appeal by Casey City Council (“Council”) pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1995, in respect of a decision of the Victorian Civil and Administrative Tribunal.

The respondent is a land engineering and surveying consultant, acting as agent for a substantial landowner and subdivider of land within the Cranbourne East Urban Growth Corridor.

On 29 April 2005 the Council granted a permit to the respondent for the subdivision of a residential estate east of Narre Warren Road–Cranbourne Road, intended to accommodate a subdivision known as “the Brindalee Estate” comprising 232 residential lots in a series of stages.

The permit conditions required the partial construction of a portion of a new east-west road known as Linsell Boulevard.

Linsell Boulevard is ultimately proposed to be a four lane distributor road constructed to a “sub arterial” standard. The construction necessary to service the subdivision forming the subject matter of the permit, was considered to be two lanes over a portion of the length of the road (i.e. a portion of the proposed northern carriageway of what would ultimately be a divided road).

Condition 3 of the proposed permit provided:

Prior to the certification of the first plan of subdivision under this permit the subject land must have abuttal to the future Linsell Boulevard road reserve along the whole of that portion of the southern boundary that is west of the Melbourne Water Pipetrack.

In turn, Condition 7 provided that before any road works associated with the subdivision started, detailed plans must be submitted to the satisfaction of the responsible authority. These must provide, among other things, for the partial construction of Linsell Boulevard.

Condition 25 then provided:

Prior to the issue of a Statement of Compliance for stage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 25
Decision Date: 5 July 2007

CaseChat Overview and Summary

The appellant, Casey City Council, sought to appeal a decision of the respondent, Carson Simpson Pty Ltd, who had challenged the imposition of a Development Contributions Plan levy. The matter was heard in the Supreme Court of Victoria. The primary dispute centred on the authority and obligations of the Casey City Council in imposing a Development Contributions Plan levy, as well as the extent of the Council's discretion in reviewing the terms of the levy. The respondent contested the Council's imposition of the levy, arguing that the Council did not have the requisite power or obligation to impose such a levy, and that the Tribunal should have the discretion to vary the terms of the levy.

The court was required to determine whether the Casey City Council had the power and obligation to impose the Development Contributions Plan levy under the Planning and Environment Act 1987. The court also needed to consider the extent of the Council's discretion in reviewing the terms of the levy and whether the Tribunal had the authority to vary the terms of the levy. Additionally, the court was required to determine the appropriate alternative form of condition that the Council could impose, as well as the appropriate process for determining the appropriate alternative.

The court found that the Casey City Council did have the power and obligation to impose the Development Contributions Plan levy under the Planning and Environment Act 1987. The court held that there was no discretion in the responsible authority or the Tribunal on review to vary the terms of the levy imposed by the planning scheme. However, the court found that the Council, as the collecting agency, did have a consequential discretion to accept works in lieu of the levy. The court held that the statutory alternatives as to the form of appropriate condition were not limited to those specified in the Development Contributions Plan, and that the appropriate alternative should be determined by the Tribunal. The court remitted the matter to the Tribunal for further consideration of the appropriate alternative form of condition.

The court ordered that the matter be remitted to the Tribunal for further consideration of the appropriate alternative form of condition that the Council could impose. The court held that the Tribunal should consider the statutory alternatives as to the form of appropriate condition, and determine the appropriate alternative in accordance with the Planning and Environment Act 1987. The court did not make any orders as to costs.

Orders