Konann Pty Ltd v Casey City Council (in its capacity as collecting agency of the Cranbourne North Precinct Structure Plan - Development Contributions Plan)

Konann Pty Ltd sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal of Victoria. The dispute concerned the calculation of a development levy imposed by Casey City Council under a precinct structure plan and development contributions plan. Konann argued that the Council had improperly calculated the levy by failing to provide adequate credit for infrastructure works constructed by Konann as a condition of its development approval, which effectively subsumed and exceeded the scope of the works originally contemplated by the development contributions plan.

The central legal issue before the High Court was whether, under section 46P(2) of the *Planning and Environment Act 1987* (Vic), the Council had a mandatory obligation to accept the provision of works by a developer in partial or full satisfaction of a development levy, where those works exceeded the scope of the development contributions plan. Konann contended that the word "may" in section 46P(2) should be interpreted as "must" in circumstances where the developer has constructed works that satisfy and go beyond the requirements of the development contributions plan, thereby preventing double-dipping. The Council, conversely, argued that section 46P(2) conferred a discretion upon the collecting agency, and that the word "may" should be given its ordinary permissive meaning, allowing for a multifactorial assessment of whether to accept such works and provide credit.

The applicant, Konann Pty Ltd, argued that the Court of Appeal erred in its interpretation of section 46P(2) by treating it as conferring an unfettered discretion. Konann submitted that the legislative scheme was designed to prevent developers from being subjected to a double burden, both paying a levy and constructing infrastructure that would otherwise be funded by that levy. They contended that the Council, by requiring Konann to construct an intersection that superseded the one planned in the development contributions plan and then taking title to that constructed intersection, had effectively accepted the provision of works in satisfaction of the levy. The Council, represented by Casey City Council, argued that the Court of Appeal's construction of the development contributions plan and section 46P(2) was correct, and that the word "may" clearly indicated a discretion, allowing the Council to consider various factors beyond simply avoiding double-dipping, such as the timing of infrastructure delivery and the overall benefit to the community. The Council submitted that the interpretation of the specific development contributions plan document was critical and that the issues raised by Konann did not warrant intervention by the High Court.