Manor Central Nominees Pty Ltd v Wyndham City Council
[2021] VSC 92
•3 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2019 00475
| MANOR CENTRAL NOMINEES PTY LTD and MANOR COMMERCIAL COMPANY PTY LTD | First Plaintiff Second Plaintiff |
| v | |
| WYNDHAM CITY COUNCIL | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 and 17 February 2021 |
DATE OF JUDGMENT: | 3 March 2021 |
CASE MAY BE CITED AS: | Manor Central Nominees Pty Ltd v Wyndham City Council |
MEDIUM NEUTRAL CITATION: | [2021] VSC 92 |
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LOCAL GOVERNMENT – Power of council in s 187, Local Government Act 1989 (Vic) to acquire land – Compulsory acquisition of easement – Land not reserved for a public purpose under a planning instrument – Whether acquisition of land in a prescribed class of land within s 5(2), Land Acquisition and Compensation Act 1986 (Vic) – Construction of reg 6(b), Land Acquisition and Compensation Regulations 2010 (Vic) – Nature of interest acquired – Local Government Act 1989 (Vic), ss 187, 187A – Land Acquisition and Compensation Act 1986 (Vic), s 5 – Land Acquisition and Compensation Regulations 2010 (Vic), reg 6.
JUDICIAL REVIEW – Whether power to acquire land exercised for an improper or ulterior purpose – Scope of power of acquisition in s 187, Local Government Act 1989 (Vic) – Whether permissible to infer the Council’s purpose from evidence of statements by Council officers and consultants – Acquisition within scope of power – Local Government Act 1989 (Vic), ss 3A, 3C, 3E, 3F, 187.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr CJ Townshend QC with Mr BC Chessell | Minter Ellison |
| For the Defendant | Mr NM Wood | Russell Kennedy |
HER HONOUR:
Manor Central Nominees Pty Ltd is the registered proprietor of a 25.39 hectare block of land in Wyndham Vale, having acquired the Property from Manor Commercial Company Pty Ltd (MCC) in December 2018. The Property is a triangle bordered by Ballan Road to the north-east, Manor Lakes Boulevard to the south, and Armstrong Road to the west. Wyndham Vale railway station, on the Deer Park – West Werribee rail line, is on the western side of the Property, at about the mid-point of the western boundary. The Property is zoned Commercial 1 in the Wyndham Planning Scheme, and is subject to a Development Plan Overlay.
The Property is being developed in stages. The first stage was construction of the Manor Lakes Central shopping centre on the south-eastern corner of the Property, at the corner of Ballan Road and Manor Lakes Boulevard, which was completed in 2006. A planning permit for the second stage of the development was issued in April 2018, following the resolution of a proceeding in the Victorian Civil and Administrative Tribunal.[1] A condition of the Stage 2 permit was a comprehensive review of the existing development plan, which dates back to 1996 and was last amended in 2002.
[1]The Stage 2 permit was first issued in June 2011, and was extended on a number of occasions. The proceeding in the Victorian Civil and Administrative Tribunal was an application for review of a failure by the Council to make a decision on an application to amend the Stage 2 permit within the prescribed time, made under s 79 of the Planning and Environment Act 1987 (Vic).
Since at least 2016, the owners of the Property and Wyndham City Council have articulated quite different visions for what will become the town centre of a new suburb. A major point of difference has been the Council’s desire for a road between Wyndham Vale railway station and the growing residential area on the north-eastern side of Ballan Road, which is strenuously opposed by the plaintiffs. This difference might have been resolved under the Planning and Environment Act 1987 (Vic) (Planning Act), either by completing the review of the development plan, or by the inclusion of a structure plan for the Manor Lakes Town Centre in the Wyndham Planning Scheme. The Council took a different course.
On 8 November 2017, the Council resolved to commence to acquire a carriageway easement over the Property, under s 5(2) of the Land Acquisition and Compensation Act 1986 (Vic) (Acquisition Act). The Council served a Notice of Intention to Acquire the easement on MCC on 26 February 2018, as required by ss 6 and 8 of the Acquisition Act. The land over which the Council proposed to acquire the easement had not been reserved for a public purpose under any planning instrument.
On 22 November 2018, the Council published a Notice of Acquisition in the Victoria Government Gazette, under s 19 of the Acquisition Act. The Notice of Acquisition was served on MCC on 27 November 2018. The effect of publishing the Notice of Acquisition was to vest in the Council a carriageway easement over a strip of land 26 metres wide, between Ballan Road and Wyndham Vale railway station on Armstrong Road.[2] The easement bisects the Property. Appendix 1 to this judgment is the Notice of Acquisition, which includes the Plan for Creation of Easement.
[2]Land Acquisition and Compensation Act 1986 (Vic) (Acquisition Act), s 24.
Since the acquisition, Stage 2 of Manor Lakes Town Centre has been constructed. There is now a pathway between Wyndham Vale station and Ballan Road, aligned with the easement. This can be seen from the pair of aerial photographs of the Property at Appendix 2 , the first taken on 13 October 2018, and the second taken on 12 December 2020.
In this proceeding, Manor Central and MCC seek judicial review of the Council’s decision to serve the Notice of Intention. They contend that the decision was invalid because:
(a) under s 5(1) of the Acquisition Act, the Council could not commence to acquire the land because it had not been first reserved by or under a planning instrument for a public purpose, and the land was not ‘prescribed land’ for the purposes of s 5(2) of the Acquisition Act — because the carriageway easement did not fall within the class of easements specified in reg 6(b) of the Land Acquisition and Compensation Regulations 2010 (Vic); and
(b) the decision was made for the improper or ulterior purpose of creating a public road across the Property between Ballan Road and Armstrong Road, and hence pre-empting the outcome of an ongoing planning process concerning the Property.
By reason of these matters, the plaintiffs contend that the Notice of Acquisition was also invalid. They seek orders in the nature of certiorari, quashing the decisions of the Council to serve the Notice of Intention and to publish the Notice of Acquisition, and declarations that both notices were invalid and of no force or effect.
The Council maintains that its compulsory acquisition of the carriageway easement is valid, and that the Notice of Intention was unaffected by any jurisdictional error.
For the reasons that follow, I have concluded that the acquisition was of a prescribed class of land, under reg 6(b) of the Regulations, and fell within the exception in s 5(2) of the Acquisition Act. I have also concluded that the decision to acquire the easement was within the scope of the Council’s power of acquisition, and was not made for an improper or ulterior purpose.
Relevant provisions
Section 187 of the Local Government Act 1989 (Vic) provides:
Acquisition and compensation
(1) A Council may purchase or compulsorily acquire any land which is or may be required by the Council for or in connection with, or as incidental to, the performance of its functions or the exercise of its powers.
(2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose—
(a) the Local Government Act 1989 is the special Act; and
(b) the Council is the Authority.
Section 38 of the Interpretation of Legislation Act 1984 (Vic) defines ‘land’ in all Victorian Acts to include, unless the contrary intention appears, ‘any estate, interest, easement, servitude, privilege or right in or over land’.
The Local Government Act contemplates that a council may compulsorily acquire an easement over land. Section 187A provides:
Creation of easements
If any right in the nature of an easement or purporting to be an easement or an irrevocable licence is or has been acquired by a Council whether before or after the commencement of the Local Government Act 1958, the right is deemed for all purposes to be and to have been an easement even if there is no land vested in the Council which is benefited by the right.
Compulsory acquisition of any interest in land by a council is governed by the Acquisition Act.[3] Section 5 of the Acquisition Act provides, relevantly:
[3]Acquisition Act, s 4.
Reservation or certification of land required before acquisition
(1) The Authority must not commence to acquire any interest in land under the provisions of the special Act unless the land has been first reserved by or under a planning instrument for a public purpose.
(2) Subsection (1) does not apply in respect of prescribed land or land in a prescribed class of land.
…
Regulation 6 of the Land Acquisition and Compensation Regulations 2010 (Vic) prescribes two classes of land for the purposes of s 5(2):
Land not requiring reservation
The following classes of land are prescribed for the purposes of section 5(2) of the Act—
(a) land to be acquired for a minor road widening or the deviation of a road if the land is only part of an allotment and—
(i) the area of the land to be acquired is less than 10 per cent of the total area of the allotment; and
(ii) the total value of the interest to be acquired is less than 10 per cent of the value of the unencumbered freehold interest in the total area of the allotment;
(b) land over which an easement is to be acquired if the acquisition of that easement will not reduce the value of the unencumbered freehold interest in the allotment by more than 10 per cent.
In most cases, the first step towards compulsory acquisition of an interest in land is service of a notice of intention to acquire, under s 6 of the Acquisition Act:
Notice of intention to acquire
Subject to section 7, if the Authority intends to acquire an interest in land for the purposes of the special Act, the Authority must serve upon each person who has an interest in the land, or is empowered by this Act to sell and convey or grant and release or lease such an interest, or such of those persons as, after diligent inquiry, become known to the Authority, a notice of intention to acquire the first-mentioned interest.
Section 7 sets out a number of exceptions to this general requirement, none of which apply here. The formal requirements of a notice of intention to acquire are as provided in s 8. One requirement is that the notice give details of the purpose for which the interest is to be acquired.[4]
[4]Acquisition Act, s 8(1)(c).
A council may acquire an interest in land for the purposes of the Local Government Act by publishing in the Government Gazette a notice declaring the interest to be acquired.[5] Upon publication of the notice of acquisition, the interest in land described in the notice vests in the Council, and any interest that any other person has in the land is correspondingly divested or diminished.[6]
[5]Acquisition Act, s 19.
[6]Acquisition Act, s 24(1).
Did regulation 6(b) apply?
The plaintiffs contended that the acquisition was not of an interest in a class of land prescribed by reg 6(b) of the Regulations, and so was not covered by the exception in s 5(2) of the Acquisition Act. As a result, s 5(1) applied and the Council could not acquire any interest in the land because it had not been first reserved by or under a planning instrument for a public purpose. They put this argument in two different ways.
First, they submitted that the word ‘easement’ in reg 6(b) should be read down by reference to the subject matter of reg 6(a), namely ‘minor road widening or the deviation of a road’. They argued that reg 6(a) described the only circumstances in which land could be acquired for the purposes of a road under s 5(2), with the effect that reg 6(b) should be read ‘land over which an easement (other than a road) is to be acquired’ or, alternatively, ‘land over which an easement (other than a carriageway easement) is to be acquired’. To read ‘easement’ more broadly would expand the specific and limited class of land that may be acquired for road purposes, prescribed in reg 6(a). This interpretation was said to be supported by the fact that reg 6 is concerned with lesser interferences with private ownership of land, where the acquisition will reduce the value of the freehold interest in the total allotment by no more than 10 per cent.
The second way in which the plaintiffs put the argument was that, properly construed, reg 6(b) does not extend to the acquisition of an easement, the sole purpose of which is to facilitate the creation of a road that is neither a minor road widening or the deviation of a road. They submitted that the Council’s true purpose was not to acquire an easement, but to facilitate the creation of a public road, which took this acquisition outside the class of land prescribed in reg 6(b) and the exception in s 5(2). They emphasised the 26 metre width of the easement acquired, which was more consistent with a public road than a private right of way.
In support of this contention, the plaintiffs contrasted the private right to pass over land associated with a carriageway easement with a public right of way over the same land, which is a feature of a public road. They pointed out that a ‘private right of way is “a very different thing” from a public road’,[7] and that the Road Management Act 2004 (Vic) provides that a private right of way or easement cannot co-exist with a public right of way over the same land.[8] They submitted that the easement purportedly acquired by the Council did no more than give the Council and its agents a right to pass over the land; it did not create that right for the public at large, which was the Council’s true purpose.
[7]Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383, [35], citing Rangely v Midland Railway Company (1868) LR 3 Ch App 306, 311.
[8]Road Management Act 2004 (Vic), Sch 5, cl 14(a).
In response, the Council submitted that the application of reg 6(b) turns on the existence of an objective jurisdictional fact, namely that it is an ‘easement’ that is proposed to be acquired, and the acquisition will not reduce the value of the unencumbered freehold interest in the allotment by more than 10 per cent. Here, the Council proposed to acquire an easement over the land, and the value criterion was satisfied, and so reg 6(b) applied to bring the proposed acquisition within the exception in s 5(2) of the Acquisition Act.
The Council argued that there was no basis to read down the word ‘easement’, or to read in the words ‘(other than a road)’, as suggested by the plaintiffs.[9] It pointed out that a right of way is a ‘road’ for the purposes of the Local Government Act,[10] and that there was no legal basis for limiting the width of an easement.
[9]Relying on Lord Diplock’s speech in Wentworth Securities Ltd v Jones [1980] AC 74, 105–106, cited in Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38]–[40] (French CJ, Crennan and Bell JJ).
[10]Local Government Act 1989 (Vic), s 3(1) — definition of ‘road’.
As to the nature of the interest it had acquired, the Council submitted that it was plain on the face of the Notice of Intention and the Notice of Acquisition that it had acquired an easement. Section 187 read with s 187A of the Local Government Act permits a council to acquire an easement in gross — that is, an easement in respect of which there is no dominant tenement. The Council rejected the proposition that it could not authorise members of the public to use the easement, and submitted it was clear from the context that the easement created by the Notice of Acquisition was for the benefit of the public.
Consideration
I do not accept that reg 6(b) can be read in the way submitted by the plaintiffs. The word ‘easement’ has an established legal meaning: it is a right enjoyed by one person over the land of another person.[11] Generally, an easement exists over a servient tenement, for the benefit of the dominant tenement.[12] However, s 187A of the Local Government Act contemplates the acquisition of an easement in gross, which does not benefit any land vested in the acquiring council. In that case, the easement exists for the benefit of the council and, in a practical sense, may also be enjoyed by other persons.[13]
[11]Municipal District of Concord v Coles (1906) 3 CLR 96.
[12]Riley v Penttila [1974] VR 547, 557.
[13]Oldfield v Gold Coast City Council [2008] QSC 226, [18].
One very common form of easement is a carriageway easement or right of way, which is included in the definition of ‘road’ in the Local Government Act.[14] If it had been intended to exclude that common form of easement from reg 6(b), it would have been simple enough to do that expressly. The regulation is plainly expressed to include easement of any kind, without ambiguity. There is no scope to prefer a meaning that least interferes with private property rights when only one meaning is available.[15] It would depart too far from the text of the provision to read in the words ‘other than a road’ or ‘other than a carriageway easement’, and would not serve any discernible legislative purpose.[16]
[14]Local Government Act, s 3(1) — definition of ‘road’; Mayberry, [83]–[85].
[15]R&R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603, [42]–[43] (French CJ).
[16]Taylor, [38]–[40] (French CJ, Crennan and Bell JJ).
The two paragraphs of reg 6 prescribe two distinct classes of land for the purposes of s 5(2) of the Acquisition Act. Paragraph (a) concerns land required for minor widening or deviation of an existing road, and permits acquisition of the freehold interest in that land. Paragraph (b) concerns land over which an easement is to be acquired, which contemplates the creation of a new easement, and necessarily limits the interest that may be acquired to ‘that easement’. There is no obvious relationship between the two classes, and there is no conflict or repugnancy between them that might be resolved by reading down ‘easement’ in paragraph (b).[17] The two paragraphs have separate and slightly different 10 per cent value rules, which is a further indication that they are intended to apply independently of each other.
[17]See, for example, Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652, 657 (Mason ACJ, Wilson, Brennan and Dawson JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, [2] (Gleeson CJ), [54], [69]–[70] (Gummow and Hayne JJ), [162]–[169] (Heydon and Crennan JJ).
The purpose for which the Council acquired the easement — whatever it was — does not affect the nature of the interest it acquired. On the face of the Notice of Acquisition, the interest in land acquired by the Council is an easement, and nothing else. There is no rule of law to prevent the creation of an easement that is wide enough for a public road, and no width at which an easement ceases to be an easement and becomes a road. Indeed, for the purposes of the Local Government Act, a carriageway easement is a ‘road’.[18] While a private right of way or easement and a public right of way cannot exist over the same land at the same time,[19] land that is subject to a carriageway easement may later be declared to be a public highway, at which point it would become a ‘public road’ for the purposes of the Road Management Act.[20]
[18]Local Government Act, s 3(1) — definition of ‘road’; Mayberry, [83]–[85].
[19]Road Management Act, Sch 5, cl 14(a); Mayberry, [37].
[20]Local Government Act, s 204(1); Road Management Act, s 17(1)(c).
As discussed below,[21] the context indicates that the Council intended to acquire an easement that would permit public access across the land between Wyndham Vale station and Ballan Road. Members of the public are currently able to use the pathway along the easement, although the evidence did not address whether that access is pursuant to the easement or some permission granted by Manor Central. I do not think it is necessary to determine whether the easement permits public access, either directly or as authorised by the Council. If the plaintiffs are correct that the easement can only benefit the Council and people who work for it, that would not change the nature of the interest that was acquired from an easement into something else, or displace the application of reg 6(b).
[21]See [55]–[56] below.
Did the Council acquire the easement for an improper purpose?
The Notice of Intention stated that the Council intended to acquire the easement because it thought the land was ‘suitable for a carriageway easement between Ballan Road and Armstrong Road for access purposes in relation to Wyndham Vale station’. The plaintiffs contended that this was not the Council’s true purpose, and that it acted with the improper or ulterior purposes of:[22]
[22]Further amended originating motion dated 30 January 2020, [20](a).
(a) creating an east-west public road across the Property, linking Ballan Road and Armstrong Road;
(b) preventing the land from being developed, or from being the subject of planning permission allowing its development, pending amendment of the Wyndham Planning Scheme to reserve the land for the purpose of a public road; and
(c) predetermining the outcome of the structure planning and related planning scheme amendment processes that the Council intended to pursue in respect of the Property.
The plaintiffs argued that these purposes were improper or ulterior purposes because they were beyond the scope of the Council’s power to acquire the easement in s 187 of the Local Government Act. They were particularly aggrieved that the Council’s acquisition of the easement took place outside the public process by which land may be reserved for a public road in a planning scheme, under Pt 3 of the Planning Act.
This contention raised the following issues for resolution:[23]
[23]See e.g. East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [341]–[342] (Ashley and Redlich JJA); Maddingley Brown Coal Pty Ltd v Environment Protection Authority (2013) 197 LGERA 259, [91].
(a) What is the scope of the Council’s power of acquisition in s 187 of the Local Government Act?
(b) For what purpose did the Council acquire the easement?
(c) Was the Council’s purpose beyond the scope of the power of acquisition in s 187?
Scope of the power of acquisition in s 187
Section 187 gives the Council power to compulsorily acquire any land which is or may be required by the Council ‘for or in connection with, or as incidental to, the performance of its functions or the exercise of its powers’. At the time of the acquisition, the functions and powers of a council were set out in Part 1A of the Local Government Act.[24] Part 1A commenced with a statement of the purpose of local government, in s 3A:
[24]Part 1A has since been repealed and replaced by Pt 2, Div 1 of the Local Government Act 2020 (Vic).
What is the purpose of local government?
The purpose of local government is to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts.
The objectives of a council were set out in s 3C:
Objectives of a Council
(1) The primary objective of a Council is to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.
(2) In seeking to achieve its primary objective, a Council must have regard to the following facilitating objectives—
(a) to promote the social, economic and environmental viability and sustainability of the municipal district;
(b) to ensure that resources are used efficiently and effectively and services are provided in accordance with the Best Value Principles to best meet the needs of the local community;
(c) to improve the overall quality of life of people in the local community;
(d)to promote appropriate business and employment opportunities;
(e)to ensure that services and facilities provided by the Council are accessible and equitable;
(f)to ensure the equitable imposition of rates and charges;
(g) to ensure transparency and accountability in Council decision making.
Section 3E set out the functions of a council:
What are the functions of a Council?
(1) The functions of a Council include—
(a) advocating and promoting proposals which are in the best interests of the local community;
(b) planning for and providing services and facilities for the local community;
(c) providing and maintaining community infrastructure in the municipal district;
(d) undertaking strategic and land use planning for the municipal district;
(e) raising revenue to enable the Council to perform its functions;
(f) making and enforcing local laws;
(g) exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h) any other function relating to the peace, order and good government of the municipal district.
(2) For the purpose of achieving its objectives, a Council may perform its functions inside and outside its municipal district.
The powers of councils were the subject of s 3F:
What are the powers of Councils?
(1) Subject to any limitations or restrictions imposed by or under this Act or any other Act, a Council has the power to do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions.
(2)The generality of this section is not limited by the conferring of specific powers by or under this or any other Act.
The Council submitted, and the plaintiffs accepted, that the power in s 187 is extremely broad. I agree. Section 187 enables a council to compulsorily acquire any land that is or may be required for any of its functions or powers. The Council relied on s 3E(1)(h) of the Local Government Act, which conferred on it ‘any other function relating to the peace, order and good government of the municipal district’. These are not words of limitation; they are ample and plenary.[25] They are not to be read down by reference to the specific functions conferred on councils in the earlier paragraphs of s 3E(1).[26]
[25]Union Steamship Co. of Australia Pty Ltd v King (1988) 166 CLR 1, 10.
[26]Ho v Greater Dandenong City Council [2012] VSC 165, [37]–[41].
The Council’s powers were similarly broad. It had power to do all things necessary or convenient in connection with the achievement of its primary objective of endeavouring to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.[27]
[27]Local Government Act 1989 (Vic) Authorised Version No. 150, in force at the time of the acquisition, ss 3C(1) and 3F.
The plaintiffs correctly submitted that the Council’s power in s 187 must be exercised in accordance with the Acquisition Act, in particular s 5(1). However, as discussed above, the exception in s 5(2) applied here because the Council acquired a class of land prescribed by reg 6 of the Regulations. The plaintiffs accepted that it was not inherently improper for a council to take advantage of one of the exceptions to s 5(1) provided in the following sub-sections.[28] Their submission was that the evidence in this case demonstrated that the Council’s purpose in acquiring the easement was to avoid the application of s 5(1).
[28]Transcript, 17 February 2021, 159:1–23.
Council’s purpose
It is not controversial that an improper or ulterior purpose will only vitiate an exercise of power if it is a substantial purpose, in the sense that the power would not have been exercised but for the purpose.[29] An improper purpose will not lightly be inferred. The presumption of regularity has the effect that an improper purpose will be inferred only if the evidence cannot be reconciled with the proper exercise of the power.[30]
[29]See e.g. Thompson v Randwick Corporation (1950) 81 CLR 87, 106 (Williams, Webb and Kitto JJ); Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678, 679; Commonwealth Director of Public Prosecution v Brady [2016] VSC 334, [403].
[30]See e.g. Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, 672; Brady, [404].
There is no statement of reasons for the Council’s decision to acquire the easement. On 21 December 2018, the plaintiffs’ solicitors made a request for reasons under s 8 of the Administrative Law Act 1978 (Vic). The Council’s solicitors responded that the request was out of time, because the decision was notified at the latest on 13 March 2018, and s 8(2) of the Administrative Law Act allowed 90 days for a request for reasons. The correspondence did not address the larger question of whether the Administrative Law Act obliges a council to give reasons for a decision under s 187 of the Local Government Act.[31]
[31]Section 8(1) of the Administrative Law Act 1978 (Vic) obliges a ‘tribunal’ to provide a statement of reasons to a person affected by a decision, if requested. Section 2 defines a ‘tribunal’ to be ‘a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice’. The application of the rules of natural justice to a compulsory acquisition of land in accordance with the Acquisition Act was considered by the Court of Appeal in Melbourne Water Corporation v Caligiuri (2020) 60 VR 462, [58]–[79].
The Notice of Intention stated simply that the Council intended to acquire the easement between Ballan Road and Armstrong Road ‘for access purposes in relation to Wyndham Vale station’. The Notice of Intention was served to give effect to item 5 of the Council’s resolution of 8 November 2017. That resolution was, in full:
That Council:
1.Prepare a structure plan and development framework for the Manor Lakes Town Centre.
2.Upon completion of the draft Manor Lakes Town Centre Structure Plan, seek authorisation to exhibit a planning scheme amendment that incorporates the Structure Plan into the Wyndham Planning Scheme pursuant to the Activity Centre Zone.
3.Following receipt of the Minister’s Authorisation, proceed to exhibit a planning scheme amendment in accordance with section 19 of the Planning and Environment Act 1987.
4.Provide the Director City Economy Innovation & Liveability delegated authority to prepare the planning scheme documentation for exhibition.
5.Immediately commence the process to acquire the carriageway easement through the Manor Lakes Town Centre site under section 5(2) of the Land Acquisition and Compensation Act 1986.
The plaintiffs relied on a range of other evidence to demonstrate that the Council’s true purpose in acquiring the easement was to create a public road connecting Ballan Road and Wyndham Vale station, without going through the process required to reserve the land for a public purpose in the Wyndham Planning Scheme. That evidence is set out in the following paragraphs.
In June 2016, the plaintiffs presented Council officers with their proposed master plan for Manor Lakes town centre, prepared by their architects. On 6 July 2016, Tim Webb, Principal Major Projects Planner in the Council’s Town Planning department, provided the plaintiffs with detailed written comments on their proposal. The ‘internal comments and guidance’ included the following:
The proposed ‘Grid Layout’ hierarchy as shown on p.50 is not supported. The primary site grid is to be to/from Ballan Road (specifically the future signalised intersection IN-27) and the Wyndham Vale Rail Station. Plans must strengthen this view line/connection and show an appropriately direct pedestrian and vehicular connection from Ballan Road to the Wyndham Vale Rail Station. This needs to be a public road connection as this will be a key connection to the rail station from the Ballan Road PSP[32] area.
The pedestrian links must be amended to strengthen the connection between Ballan Road (specifically the future signalised intersection IN-27) and the Wyndham Vale Rail Station. This direction connection should allow ease of movement and therefore not go through the middle of proposed open space/plaza (but may run alongside it).
[32]A reference to the Ballan Road Precinct Structure Plan in the Wyndham Planning Scheme.
Towards the end of 2016, the plaintiffs applied to the Council to amend the Stage 2 permit. On 7 April 2017, Kate Roffey, the Council’s Director, City Economy, Innovation and Liveability, provided ‘thoughts and feedback’ from the Council’s Urban Futures team, in the form of a slide presentation. In her covering email, Ms Roffey said ‘we are raising these items as they outline Council’s aspirations and future plans for city centre developments’. On a slide headed ‘How could the precinct be arranged?’ the following appeared:
The length of the proposed street that could be constructed from Wyndham Vale station to Ballan Rd is approximately 360m and there would be a need to identify areas where development could be clustered to contribute to vibrancy.
Council officers reinforced the necessity for an east-west road through the Property at a meeting with representatives of the plaintiffs on 17 July 2017.
On 15 November 2017, the Council’s Chief Executive Officer, Kelly Grigsby, wrote to representatives of the plaintiffs, following a meeting in late October. Her email covered a number of planning issues, including:
We understand that in relation to the development of the Manor Lakes Town Centre, you raised concerns regarding the proposal for the road through the site. Council Officers have identified that there is a need for the road in order to accommodate the long term planning and development potential of the site. As we discussed, the introduction of the road is a response to the changes in the planning context of the site over time and to ensure that it meets a vital need for direct access to the Wyndham Vale Railway Station. Council is happy to contribute to a redesign process that brings together Council’s aspirations for the site with the key elements of the DFC/Ranfurlie design.
The minutes of the Council’s meeting on 8 November 2017 record the report and recommendation made by Council officers to the Council in relation to the agenda item ‘Manor Lakes Activity Centre – acquisition of easement and planning scheme amendment’:
Summary
The purpose of this report is to seek Council endorsement to:
•Prepare a structure plan and incorporate the final structure plan into the Wyndham Planning Scheme pursuant to the Activity Centre Zone (ACZ);
•Seek authorisation to prepare a planning scheme amendment pursuant to the Planning and Environment Act 1987 (P&E Act) to introduce the ACZ to the Manor Lakes Town Centre;
•Introduce a Public Acquisition Overlay (PAO) for the future development of a road through the Manor Lakes Town Centre;
•Immediately commence a process to acquire a carriageway easement through the Manor Lakes Town Centre site pursuant to section 5(2) the Land Acquisition and Compensation Act 1986 and regulation 6 of the Land Acquisition and Compensation Regulations 2010.
The purpose of the structure plan is to provide a clear framework for the future development of the site that will seek to optimise the site’s location adjacent to the railway station, identify opportunities for more diverse land uses and employment and make provision for public realm areas, including the provision of public streets.
The purpose of the carriageway easement is to create an easement for access through the site from Ballan Road to Wyndham Vale Railway Station. This will provide a direct link from the large developing residential area to the north east identified in the Ballan PSP through the site to the railway station. The introduction of the PAO will facilitate the development of a public road over the easement which will also provide opportunities for early activation of the centre and for the creation of more diverse land uses and employment opportunities. Council Officers are recommending that Council pursue this option immediately because the owners of the site have categorically opposed the proposition of creating a public road within the site.
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Key issues
• Create greater diversity of land uses and facilitate a greater diversity of employment opportunities.
• Facilitate the early activation of the centre and create vibrancy.
• Improve the integration of the road and transport network of the Ballan Road PSP area with the Manor Lakes Town Centre.
• Provide safe and well-designed access to the Wyndham Vale Railway Station.
The Council officers’ recommendation was in the same terms as the Council’s resolution.
The Council officers’ report to the Council provided the following background, and identified key issues for discussion:
1. Background
The Manor Lakes Town Centre (Town Centre) is a 25.39 hectares site located to the immediate east of the Wyndham Vale Railway Station. Approximately 4.1 hectares at the south-eastern corner of the centre is developed with a shopping centre catering for neighbourhood needs. The remainder of the site is vacant. The land is owned by Ranfurlie Developments Pty Ltd and Manor Commercial Company Pty Ltd.
The Town Centre has been identified as an activity centre since 1995. It is currently zoned Commercial 1 (C1Z) and is subject to Development Plan Overlay – Schedule 2 (DPO-2). The first Development Plan for the site was approved in January 2006 and identified the Town Centre as an Employment Node. This Development Plan was superseded by an amended Development Plan approved in October 2010 which identified the Town Centre as a Retail Zone with a small star identifying a location for local retail/potential food and drink premises.
The current Development Plan provides very little guidance for the future planning of the Town Centre. Accordingly, there is no guidance on land use, built form, public realm, landscaping, access or car parking. Contemporary planning practice recommends that structure plans be prepared for activity centres … The current Development Plans also predate the planning of the adjoining Ballan Road Precinct Structure Plan (PSP) and was prepared in the absence of information that is now contained in the PSP.
As well as the Development Plan approvals, the owners have made various applications for planning permits to develop parts of the site, including:
•A permit for the development of the existing Stage 1 shopping centre (comprising supermarket, specialty shops and a take away food premises) and a permit for Stage 2 (comprising more retail);
•A current application to amend the Stage 2 permit (comprising discount department store, supermarket, discount supermarket and specialty shops); and
•Other permits for pad retail sites and a bulky goods retail premises.
These permits have been approved in the absence of a structure plan which has given rise to concerns by Council Officers about the future role and development of the Town Centre.
Further, the areas around the Town Centre have developed for residential subdivisions without proper regard as to how these residential areas could be integrated with the Town Centre. As a result, the Town Centre is developing as a stand-alone shopping centre which has ramifications for connectivity and accessibility, particularly to the Wyndham Vale Railway Station.
In response to a request from Council Officers, the landowners have provided a high-level sketched masterplan for the site. This plan shows a largely internally-focused shopping mall surrounded by car parking on the periphery.
2. Discussion
The key issues are as follows:
•Concerns with the landowners’ future plans for the site, which fails to optimize the opportunity provided by the railway station and fails to integrate the site with the surrounding areas;
•The need to prepare a planning scheme amendment to introduce a schedule to the ACZ to incorporate a structure plan for the site into the Wyndham Planning Scheme;
•Potential features of the structure plan, including the creation of a future public road between Ballan Road and the Wyndham Vale Railway Station; and
•The urgent need to reserve land to create an important future link between Ballan Road and the railway station, particularly given the opposition of the owner to provide the link.
There followed a detailed discussion of each of these key issues, only some of which is relevant here:
2.1 Optimising the site
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Given the landowners’ preference to develop the Town Centre as an internally-focused shopping centre that fails to optimise the site, it is appropriate that Council consider introducing a planning scheme amendment that incorporates a structure plan that applies to the site that will achieve far superior planning outcomes and is consistent with the Wyndham 2040 Vision.
A critical feature of the structure plan is to provide a future public road between Ballan Road and the Wyndham Vale Railway Station. More detail about this is provided below.
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2.3 Potential features of the structure plan
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A structure plan provides an opportunity to investigate how all elements of the site can be designed to optimise the potential of the site as well as how the site can be integrated into surrounding areas.
As noted above, Council Officers consider that an important feature of the structure plan will be to create a future public road between the railway station and the large residential area to the north east identified in the Ballan Road PSP. The organisational briefing paper of 26 September 2017 showed a proximate location of the transport link that would be capable of a street cross-section with footpaths, bike paths, landscaping, car-parking and a future opportunity for development to activate the street. These design features are essential to create a safe and high amenity walking and cycling experience. Pedestrians and cyclists benefit from passing vehicles as their occupants provide “eyes to the street” especially during early morning and late evening commuting times. In turn, this safety encourages more cycling and walking which has a range of health, environmental and sustainability benefits. It would also help reduce car parking demand at the railway station.
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2.4Urgent need to set aside a section of the site as a carriageway easement
The normal statutory process for securing a road reservation is to prepare a planning scheme amendment to introduce a Public Acquisition Overlay (PAO) over the section of the site required for the road. This process is proposed to be pursued as part of the proposals recommended in this report. It is intended to exhibit the PAO simultaneously with the amendment to rezone the land to ACZ.
However, Council Officers consider that there is also an urgent need to immediately set aside the relevant section of the land as a carriageway easement for the purposes of ensuring public access to the railway station will be maintained prior to the creation of a future public road under the Land Acquisition and Compensation Act 1986 (LAC Act). This is because the landowners could potentially make application for planning permits over the part of the site identified as a potential future road.
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In Council Officers’ view, the clear objective for acquiring the easement is to achieve a community benefit that would otherwise not be achieved. Council Officers have very clearly communicated to the landowners why a future public road needs to be provided across the site to provide public access to the railway station.
The plaintiffs were first advised of the Council’s decision to acquire the easement in a letter from Ms Grigsby dated 14 February 2018. The Notice of Intention was formally served on MCC on about 26 February 2018. Ms Grigsby later provided a copy of the Notice of Intention to the plaintiffs’ solicitors, with a covering letter dated 13 March 2018. The plaintiffs relied on the following statement in that letter:
As discussed in numerous meetings with your client, public access between Ballan Road and the Wyndham Vale Railway Station is required across your client’s land. Due to your client’s opposition to providing such access, Council has determined to acquire the Easement for these purposes.
On 3 April 2018, Aaron Chiles, the Council’s Manager Urban Futures, wrote a letter to Marshall Dennis, a director of both plaintiffs, enclosing a proposed amendment to the Manor Lakes Development Plan. It showed a ‘boulevard/main street’ between Ballan Road and Wyndham Vale railway station. The proposed amendment was based on a structure plan that was being prepared for the Council by David Lock Associates (DLA proposal).
The DLA proposal contained a number of plans showing an east-west road along the proposed easement, designated ‘Station Street’, and the following description:
Council proposes to build a new street (‘Station Street’) within the centre running east-west between Wyndham Vale Station and the intersection of Ballan Road with the central connector street through the Ballan Road Precinct. This will provide convenient access between the Manor Lakes Precinct to the west and the town centre, via the broad pedestrian concourse within the station.
Station Street will provide a traditional ‘mainstreet’ environment, in the form of a pedestrian-friendly street with canopy trees, cycle path, short-term kerbside car parking, broad footpaths and awnings, lined with a diverse mix of small specialty shops and retail services. This will provide a different, more diverse experience from that of the mall in the retail precinct (see below).
Service lanes are provided behind the shops fronting Station Street to provide access for staff car parking and loading without disrupting the pedestrian-friendly environment and kerbside parking within the street.
In the short-term, Station Street is likely to be lined with single-storey shops, cafes and restaurants. It will also provide access to the entertainment uses and station at its western end. In the medium-term, the single-storey buildings along the street may be redeveloped for low-medium rise buildings with officer, community, health, entertainment or residential uses above ground floor retail space.
The property along Station Street is encouraged to be subdivided into parcels that are sold to different owners, to foster diverse built form and uses.
Station Street will be punctuated by a town square at the northern end of the linear park. The square will be animated by al fresco dining, public seating and a central tree, fountain or sculpture. The eastern end of Station Street will feature landmark buildings to emphasise its importance in the urban structure. The alignment of the western end of Station Street is aligned with the station to celebrate its importance, and to provide a direct view from the station to the town square.
Unsurprisingly, the Council’s intention to acquire the easement was the subject of a good deal of correspondence and discussion between the parties during 2018. In one letter dated 17 September 2018 to Mr Dennis, Mr Chiles restated ‘Council’s position with respect to a future east west road through the site’. He noted that the plaintiffs’ position in relation to the road was ‘still unresolved’:
In response, I reiterate that Council’s position is that the capacity for a public road must be proposed as part of any Master Plan for the site and that if Ranfurlie[33] is not committed to include this feature in the plan that Council will continue with the Notice of Acquisition process to create a carriageway easement under the Land Acquisition and Compensation Act 1986.
[33]A reference to Ranfurlie Asset Management Pty Ltd, another company associated with the Dennis family, of which Mr Dennis is also a director.
After proposing an alternative mechanism of an agreement under s 173 of the Planning Act, Mr Chiles wrote:
In the interests of transparency and efficiency, it is important that I indicate to you in the clearest terms possible that Council’s position is that the Master Plan must include the capacity for an east west public road through the site. Council has previously outlined the significant benefits of creating an east west road, including the ability to bring people to the centre; and to provide opportunities for the early activation of the centre; and to provide the capacity for public transport to effectively service the centre and the broader area.
He asked Mr Dennis to confirm his companies’ agreement to the proposal to an east-west road through the site, in accordance with the DLA proposal. Subsequent discussions between the plaintiffs and the Council officers did not result in any such agreement.
The plaintiffs also relied on two valuation reports prepared for the Council by Ernst & Young, dated 28 August 2017 and 5 June 2018. In both reports, the proposed easement was described as follows:
Wyndham City Council propose to acquire an easement interest at the Subject Property for carriageway purposes. We understand that Wyndham City Council are considering constructing a road from Ballan Road to Armstrong Road to provide a connection between future residential development with the Ballan Road Precinct Structure Plan (“PSP”) and Wyndham Vale Station.
A layout plan of the proposed road, prepared by the Council’s Urban Spaces and Civil Works Department, was included in the valuation reports.
The proposed easement will run between Armstrong Road in the west and Ballan Road in the east. It will range in width between 24 and 26 metres with 3.5 to 4 metre footpaths, 2.5 to 3 metre bicycle lanes, 3.3 metre indented car parking and 3.3 metre traffic lanes. The footpaths will allow both pedestrian traffic as well as outdoor seating areas for restaurants and cafés. There will be 59 indented car parking bays which will be interspersed with landscaping. The easement will require the acquisition of 9,369 square metres from the Subject Property.
There is a question whether anything other than the Notice of Intention and the Council’s resolution of 8 November 2017 is evidence of the Council’s purpose — as distinct from the position of one or more Council officers, or the understanding of consultants engaged by them. The Council submitted that it was not permissible to infer the Council’s purpose from the officers’ report or, by extension, their correspondence, or from consultants’ reports.[34] I accept that submission, noting that the plaintiffs did not direct me to any authority to the contrary. On that basis, the Council’s purpose was as stated in the Notice of Intention — to acquire the easement ‘between Ballan Road and Armstrong Road for access purposes in relation to Wyndham Vale station’.
[34]Relying on Austral Monsoon Industries v Pittwater Council (2009) 75 NSWLR 169, [98]–[99], [101]; Johnson v Moyne Shire Council (2012) 192 LGERA 65, [44]–[45]; Pulitano Pastoral Pty Ltd v Mansfield Shire Council (2017) 225 LGERA 58, [68], [134].
Even if I were to accept all of the extraneous materials relied on by the plaintiffs as evidence of the Council’s purpose, I consider them to be entirely consistent with the purpose stated in the Notice of Intention. The inferences I would draw from that material are:
(a) The Council considered that it would be of benefit to the local community to provide for a public road connecting Wyndham Vale railway station with the residential development on the north-eastern side of Ballan Road;
(b) It intended to prepare a structure plan for Manor Lakes Town Centre, for incorporation in the Wyndham Planning Scheme, a feature of which would be a public road between the station and Ballan Road;
(c) The Council intended to reserve land for the public road by introducing a Public Acquisition Overlay into the planning scheme;
(d) In order to secure immediate public access between the station and Ballan Road, the Council determined to acquire the easement.
One consequence of the acquisition is that an east-west public road will be a given in future strategic planning for Manor Lakes Town Centre. Another is that the plaintiffs cannot contest the need for, or location of, the road through the planning scheme amendment process under Pt 3 of the Planning Act. Yet another is to preclude any development of the land that is not consistent with the easement. I would not infer, however, that any of these were substantial purposes of the Council, in the sense that the Council would not have acquired the easement but for those purposes. Its motivating purpose was simply to secure public access across the Property between Ballan Road and Wyndham Vale station, at the earliest possible time.
Was the Council’s purpose beyond the scope of the power of acquisition?
In Mandurah Enterprises Pty Ltd v Western Australian Planning Commission,[35] the High Court emphasised that a statutory power of compulsory acquisition is governed by its purpose:[36]
The power to compulsorily acquire land is a power to take land for the purpose for which the power is granted. Compulsory acquisition and associated compensation is entirely the creation of statute. The submissions concerning s 13 of the Planning Act and s 161 of the Land Act raise questions of statutory interpretation to be assessed by reference to the statutory presumption against an intention to interfere with vested property rights.
[35](2010) 240 CLR 409 (Mandurah).
[36]Mandurah, [32] (French CJ, Gummow, Crennan and Bell JJ) (citations omitted).
As discussed,[37] the power of a council under s 187 of the Local Government Act is extremely broad. A council can acquire any land that is or may be required for any of its functions or powers, which themselves are ample and plenary.
[37]See [35]–[36] above.
The compulsory acquisition power in s 187 is considerably broader than the powers under consideration in several authorities that were relied on by the plaintiffs:
(a) In Thompson v Council of the Municipality of Randwick,[38] the power was to acquire land for the purpose of undertaking the improvement and embellishment of an area.[39] The power did not extend to acquiring more land than was needed for the improvement (construction of a road), in order to make a profit by sub-dividing and selling the land.
(b) In Mandurah, one of the powers of compulsory acquisition could be exercised ‘for the purpose of a town planning scheme’,[40] which did not extend to a power to acquire land for a railway. There was another power to take land required for the purposes of ‘public work’,[41] which extended to constructing a railway, but did not extend to taking land for the purpose of avoiding a statutory requirement to construct a level crossing.
(c) South Australia v Slipper[42] concerned a certificate given by a Commonwealth Minister that expedited the compulsory acquisition process, so that the relevant land could be acquired before it was declared by South Australia to be a public park.[43] If the land had been declared a public park, it could not have been acquired by the Commonwealth without the State’s consent. The Minister could give a certificate if satisfied that ‘there is an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed’ by the need for a pre-acquisition declaration. This did not empower him to give a certificate for the purpose of preventing the application of the public park consent requirement.[44]
[38](1950) 81 CLR 87. See also Municipal Council of Sydney v Campbell [1925] AC 338.
[39]Local Government Act 1919-1948 (NSW), ss 321(d), 322.
[40]Town Planning and Development Act 1928 (WA), s 13.
[41]Land Administration Act 1997 (WA), s 161.
[42](2004) 136 FCR 259 (Slipper).
[43]Lands Acquisition Act 1989 (Cth), ss 24(1)(a), 42.
[44]Slipper, [58], [65].
The Council’s stated purpose for acquiring the easement — ‘for access purposes in relation to Wyndham Vale station’ — was well within the scope of its power of acquisition in s 187 of the Local Government Act. If the Council had the broader purpose of securing public access across the Property between Ballan Road and Wyndham Vale station, at the earliest possible time, in anticipation of an amendment to the Wyndham Planning Scheme to reserve the land for a public road, [45] that purpose would also have been within the scope of the power. It follows that I do not accept the plaintiffs’ contention that the Council exercised its power of acquisition for an improper or ulterior purpose.
[45]See [54]–[55] above.
Disposition
The proceeding was commenced less than 60 days after the publication of the Notice of Acquisition, within the time limit prescribed by r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiffs sought an extension of time in respect of their challenge to the validity of the Notice to Intention, given on 26 February 2018, under r 56.02(3). The extension of time was, sensibly, not opposed by the Council. I am satisfied that there are special circumstances in this case that justify granting the extension of time sought by the plaintiffs.[46] It is of particular significance that the plaintiffs contested the proposed acquisition from the outset, while engaging with the Council’s representatives in an attempt to negotiate a mutually acceptable outcome. This both explains the delay, and establishes that the Council was on notice that the plaintiffs disputed its decision to acquire the easement. I will make an order extending the time for the plaintiffs to commence a proceeding seeking a remedy in respect of the Notice of Intention to 6 February 2019.
[46]See Mann v Medical Practitioners Board [2002] VSC 256, [18]–[19], approved on appeal in Mann v Medical Practitioners Board (2004) 21 VAR 429.
However, for the reasons I have given, the proceeding must be dismissed.
I will hear the parties on the question of the costs of the proceeding.
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