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Konann Pty Ltd v Casey City Council

Konann Pty Ltd v Casey City Council

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Case Copied 27 September 2018 73 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION COMPENSATION AND PLANNING LIST

S CI 2017 03357

KONANN PTY LTD (ACN 084 100 149)	Plaintiff
v
CASEY CITY COUNCIL (in its capacity as collecting agency of the Cranbourne North Precinct Structure Plan – Development Contributions Plan)	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	14–17 May 2018, 10–12 July 2018
DATE OF JUDGMENT:	27 September 2018
CASE MAY BE CITED AS:	Konann Pty Ltd v Casey City Council
MEDIUM NEUTRAL CITATION:	[2018] VSC 565

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PLANNING – Development contributions – Infrastructure levies – Precinct Structure Plan – Development Contributions Plan – Infrastructure works to be constructed under a development contributions plan completed by developer – Duties and powers of collecting agency – Extent of credit or refund payable to developer – How determined – Double dipping – Planning and Environment Act 1987 (Vic) pt 3B, s 46P(2) – Casey City Council v Carson Simpson (2007) 18 VR 19 (Osborn J) considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Harris QC with Ms M. Chorn	Sinisgalli Foster Legal
For the Defendant	Mr A. Finanzio SC with Ms S. Gory	Maddocks

HIS HONOUR:

Introduction

Konann Pty Ltd (‘Konann’) is the developer of the Tulliallan estate (‘the estate’) of about 77 hectares located in the urban growth area of Cranbourne North.

Casey City Council (‘the Council’) is the responsible authority for the Casey Planning Scheme (‘the planning scheme’). The Council is both the collecting agency and the development agency under the Cranbourne North Development Contributions Plan (‘the DCP’). The planning scheme makes provision for the construction of infrastructure specified in the DCP through development contributions levies collected under pt 3B of the Planning and Environment Act 1987 (Vic) (‘PE Act’).

The DCP provides for the construction of a significant public road intersection on the northern boundary of the estate, at the intersection of Glasscocks Road and Wheelers Park Drive (‘the intersection’), in a particular configuration described in the DCP. [1]
[1]Wheelers Park Drive was previously known as White Connector Street or White Street.

In May 2014, a planning permit was granted for the development of the estate as a multi lot residential sub-division. A condition of the permit required the construction of the intersection. Konann constructed the intersection, including the western, southern and eastern parts of the intersection (‘the intersection works’). The intersection works cost Konann $3.66 million. The dispute is about who should pay for the intersection works.

Under s 46P(2) of the PE Act, the Council as the relevant collecting agency has power to accept land, works, services or facilities in lieu of levy. Under the existing law, no merits review is available from the Council’s decision under that provision.

In this proceeding, Konann seeks a declaration from the Court that the value of the intersection works accepted by the Council, is the fair and reasonable value of the works amounting to $3.66 million to be credited against its DCP liability…

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: [2018] VSC 565
Decision Date: 27 September 2018

CaseChat Overview and Summary

Konann Pty Ltd brought an action against Casey City Council, seeking clarification on the amount of credit or refund to which it was entitled under the Planning and Environment Act 1987 (Vic). The case centred around infrastructure contributions made by Konann in relation to a development project, and whether the Council was entitled to retain some of these contributions for infrastructure works it had already completed. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the Council could retain a portion of the infrastructure contributions paid by Konann, despite having already completed the infrastructure works, and if so, how this should be calculated. This question involved interpreting the relevant statutory provisions, particularly sections 46P(2) of the Act and the precedent set in Casey City Council v Carson Simpson. The court had to determine if the Council's actions constituted 'double dipping' and whether the statutory framework permitted such retention.

The court found that the Council's actions did not constitute double dipping and that it was entitled to retain a portion of the contributions for infrastructure works already completed. The court interpreted section 46P(2) as allowing the Council to claim a credit for works already undertaken, provided that the contributions paid by the developer were in accordance with the approved Development Contributions Plan. The reasoning hinged on the distinction between the developer's obligation to pay contributions and the Council's right to utilise those contributions for specified infrastructure works. The court also noted the importance of adhering to the statutory process to ensure transparency and fairness in the planning and development process.

The final orders of the court confirmed that Casey City Council was entitled to retain a portion of the infrastructure contributions paid by Konann, in accordance with the Development Contributions Plan and the statutory framework. The court provided detailed guidance on how the credit or refund should be calculated, ensuring clarity for future cases involving similar disputes.

Orders