Monash City Council v Pellicano Builders Pty Ltd
[2005] VSC 321
•12 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 8749 of 2004
| MONASH CITY COUNCIL | Appellant |
| v | |
| PELLICANO BUILDERS PTY LTD | Respondent |
No. 8750 of 2004
| MONASH CITY COUNCIL | Appellant |
| v | |
| CALLAGHAN GEORGE ASSOCIATES PTY LTD | Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25-26 JULY 2005 | |
DATE OF JUDGMENT: | 12 AUGUST 2005 | |
CASE MAY BE CITED AS: | MONASH CITY COUNCIL v PELICANO BUILDERS PTY LTD MONASH CITY COUNCIL v CALLAGHAN GEORGE ASSOCIATES PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 321 | 1st Revision: 12 August 2005 |
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Appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – Subdivision Act 1988 – Public open space contributions – Legislative intent of provision requiring 'each lot contains part of the building'.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Wright QC with Mr J. Pizer | Maddocks |
| For Pellicano Builders Pty Ltd | Mr J. Gobbo QC with Mr A.J. Finanzio | Elliott Naughton Tan |
| For Callaghan George Associates Pty Ltd | Mr C. Townshend | Deacons |
HIS HONOUR:
These proceedings are brought by the plaintiff ("the Council") by way of appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998. The Council challenges the decisions of different divisions of the Victorian Civil and Administrative Tribunal ("the Tribunal") concerning requirements for public open space contributions sought upon the subdivision of two different sites. The two sites are owned respectively by each of the defendants (whom I shall refer to respectively as "Pellicano Builders" and "Callaghan George"). In each of the two cases in issue the Tribunal disallowed the requirements which the Council sought to have imposed with respect to such contributions.
In each case the Tribunal concluded that where two commercial or industrial buildings upon a single piece of land are subdivided and each lot thereby created contains part of a building the subdivision is exempt from a requirement to provide a public open space contribution because it is a "Class 2" subdivision under cl.52.01 of the Monash Planning Scheme. Under this provision a subdivision is exempt from a public open space requirement if it constitutes:
"the subdivision of a commercial or industrial building provided each lot contains part of the building."
The Tribunal further concluded that each of the subdivisions in issue fell within the exemption. The Council now challenges that decision and contends:
(a)The Class 2 exemption provision applies only to the subdivision of a single building. The provision displays an intent to displace the presumption that the singular includes the plural (the "primary Council contention").
(b)The exemption applies only to the subdivision of a building not land and not land and buildings (the "secondary Council contention").
The two subdivisions are concerned with proposals of different complexity. The Pellicano Builders' subdivision is relatively straightforward. The land contains a building comprising six units along the northern boundary and six along the southern boundary separated by associated car parks and a common property driveway. A copy of diagram 1 from the plan is set out as Appendix "A" to this decision.
The Callaghan George subdivision involves the subdivision of two four storey office buildings located above a shared basement car park contained in a structure partially above and partially below ground. The subdivider contends that in fact the subdivision involves one building and not two. The Tribunal did not resolve this issue as it concluded that even if the land comprised two buildings it fell within the Class 2 exemption.
It is convenient to deal with the primary issues between the parties by reference to the Pellicano Builders example because there is no dispute that in the Pellicano Builders' case each of the buildings constitutes an independent structure comprising a separate building within the meaning of the definition contained in both the Subdivision Act 1988 ("the Act") and the Planning and Environment Act 1987:
"Building includes –
(a) a structure and part of a building or a structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c)a boat or pontoon which is permanently moored or fixed to land;".
The Statutory Framework
Section 18 of the Subdivision Act relevantly provides:
"(1) If a requirement for public open space is not specified in the planning scheme, a Council, acting as a responsible authority or a referral authority under the Planning and Environment Act 1987 may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to —
(a)set aside on the plan, for public open space, in a location satisfactory to the Council, a percentage of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or
(b)pay or agree to pay to the Council a percentage of the site value of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or
…
(5)A public open space requirement may be made only once in respect of any of the land to be subdivided whether the requirement was made before or after the commencement of this section, unless sub-section (6) applies.
(6)A further open space requirement may only be made when a building is subdivided and a public open space requirement was not made under section 569H of the Local Government Act 1958 or section 21A of the Building Control Act 1981 when the building was constructed.
…
(8) A public open space requirement is not required if —
(a)the subdivision is of a class of subdivision that is exempted from the public open space requirement by the planning scheme; or
(b)the subdivision is for the purpose of excising land to be transferred to a public authority, Council or a Minister for a utility installation; or
(c)the subdivision subdivides land into two lots and the Council considers it unlikely that each lot will be further subdivided."
"Land" is defined under the Act to include buildings and air space.
It can be seen that s.18 subordinates a general power to impose a requirement for public open space upon subdivision, to the provisions of a planning scheme.
Subject to the provisions of the relevant planning scheme the section grants a power to make public open space requirements with respect to subdivision of land intended to be used for residential, industrial and commercial purposes.
It can also be seen that the section envisages that a public open space requirement may be made first upon the subdivision of land and second upon the subdivision of a building (unless a requirement was made under prior legislation at the time the building was constructed).
Clause 52.01 of the Monash Planning Scheme provides:
"A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.
A public open space contribution may be made only once for any of the land to be subdivided. This does not apply to the subdivision of a building if a public open space requirement was not made under Section 569H of the Local Government Act 1958 or Section 21A of the Building Control Act 1981 when the building was constructed.
A subdivision is exempt from a public open space requirement, in accordance with Section 18(8)(a) of the Subdivision Act 1988 if:
· It is one of the following classes of subdivision:
·Class 1: the subdivision of a building used for residential purposes provided each lot contains part of the building. The building must have been constructed or used for residential purposes immediately before 30 October 1989 or a planning permit must have been issued for the building to be constructed or used for residential purposes immediately before that date.
·Class 2: the subdivision of a commercial or industrial building provided each lot contains part of the building.
·It is for the purpose of excising land to be transferred to a public authority, council or a Minister for a utility installation.
·It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided."
"Lot" is defined by the Act to mean:
"… a part (consisting of one or more pieces) of any land (except a road, a reserve or common property) shown on a plan which can be disposed of separately and includes a lot or accessory lot on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan;"
It can be seen that cl.52.01:
(a)imposes an obligation upon the subdivider to make a public open space contribution in accordance with the schedule. The schedule in turn provides for an ascending scale of contribution for residential subdivisions depending on the number of lots involved. For other subdivisions it provides for a contribution of 5%;
(b)the provision parallels but differs from the terms of s.18(5) and (6) of the Subdivision Act by limiting the number of contributions that can be made with respect to any of land which is subdivided to one only;
(c)the provision then echoes s.18(6) of the Act by providing for the situation where public open space requirements were previously made when a building was constructed;
(d)it then provides for the exemption of classes of subdivision in accordance with s.18(8)(a) of the Act;
(e)it states each exemption by firstly identifying a class of building by reference to a category of use and secondly confining the application of the exemption to a certain type of subdivision of buildings within that class;
(f)the initial proviso with respect to both Class 1 and the whole of the proviso to Class 2 is constituted by the words "provided each lot contains part of the building";
(g)it is apparent the use of the phrase "the building" in this proviso refers back to the building which falls within the initial class of "a building" used for one of the stipulated purposes.[1]
[1]See Port Phillip City Council v Domain Hill Properties Pty Ltd (1998) 102 LGRA 11 at 15
The Billabong Case
The forerunner to cl.52.01, which was relevantly in identical terms, was considered by the Full Court in the Billabong case[2]. In that case the plaintiff owned an irregular parcel of land containing an hotel and a motel. The plaintiff sought to subdivide the land into two lots, one containing the hotel and one containing the motel. An area of common property was proposed between the two lots for the purposes of providing access ways and landscaping.
[2]The Major, Councillors and Citizens of the City of Doncaster and Templestowe v Doncaster Pty Ltd (Trading as Billabong Group of Hotels) (1991) 8 AATR 81
McGarvie J (with whom Marks and Beach JJ agreed) stated the issue in the case as follows:
"The relevant clause is clause 7 1.4 of the Doncaster and Templestowe Planning Scheme which exempts two classes of subdivision from the public open space requirement. The second of those classes is:
'Class 2. the subdivision of a commercial or industrial building provided that each lot contains part of the building.'
It is on the terms in which Class 2 is defined that the outcome of this appeal depends. It will be apparent from what I said earlier that the subdivision sought in this case was one which subdivided the land in question into lots, but the subdivision into the lots was not one which subdivided a building.
The learned Deputy President took the view that s.37 of the Interpretation of Legislation Act 1984 was relevant. It provides:
'In an Act or subordinate instrument unless the contrary intention appears
…
(c) words in the singular include the plural …'
He said and I quote his words:
'In the light of this provision it seems to me that the exemption relates to a 'subdivision of commercial or industrial buildings provided each lot contains part of the buildings.' I am not able to see any contrary intention in the present case.'
The short point in the case is whether that view was correct."[3]
[3]Ibid at 83
McGarvie J went on to conclude:
"Having heard the argument presented by Mr Garde, it is my view that the learned Deputy President fell into error in his construction. It could not be said in this case, in my opinion, that the subdivision was a subdivision of a commercial building in which each lot contained part of the building. It is not possible to give that expression a reasonable or practical interpretation by treating the word 'building' as used in the plural. The contrary intention is shown. There was in this case no subdivision of a building.
I conclude that this was not a subdivision which fell within Class 2 and the appeal instead of being allowed by the learned Deputy President should have been dismissed and I would allow the appeal and propose accordingly."[4]
[4]Ibid at 84
It can been seen:
(a)the facts of the present case are distinguishable in that both the subdivisions now in issue propose the subdivision of buildings and each lot will contain part (and not the whole) of a building;
(b)nevertheless the decision of the Full Court is expressly founded upon the proposition that it is not possible to give the requirement that each lot contained part of the building a reasonable or practical interpretation by treating the word "building" as used in the plural.
The Contentions of the Parties
The primary Council contention is that the exemption does not apply to a situation where more than one building is subdivided by way of the one subdivision. In summary it is submitted on its behalf that:
(a) the plain meaning of the language is clear.
(b)the language demonstrates an intention contrary to the presumption set out in s.37(c) of the Interpretation of Legislation Act 1984:
"In an Act or subordinate instrument, unless the contrary intention appears –
…
(c) words in the singular include the plural;
…"
(c)the Tribunal was bound by the decision of the Full Court in the Billabong case to this effect;
(d)if the singular were treated as the plural this would lead to an entirely different meaning;
(e)the use of the definite article in the proviso to the exemption is deliberate; and
(f)other provisions of cl.52 of the planning scheme use the phrase "building or buildings";
(g) the Tribunal's reasoning in the Pellicano case is unsatisfactory;
(h)the purpose of the provision is to enable the Council to obtain a public open space contribution at some stage of the development process but to preclude "double dipping".
The principal contentions for Pellicano Builders with respect to the primary Council contention are:
(a)the exemption should be construed to refer to "building or buildings" so that it provides:
"Class 2: The subdivision of a commercial or industrial building or buildings provided each lot contains part of the building or buildings."
(b)the Tribunal was not bound to follow the Full Court decision in the Billabong case and was correct to distinguish the facts of that case from the present case;
(c)in any event the Full Court did not purport to provide a universal interpretation of the relevant provision in the Billabong case;
(d)the Tribunal gave cl.52.01 its clear meaning and did not rewrite it;
(e)the interpretation for which the Council contends would produce unfair and anomalous results, while the Tribunal's interpretation is consistent with the purpose of the provisions.
It is contended on behalf of Callaghan George with respect to the primary Council contention:
(a)That the issues in its case before the Tribunal were confined to the questions whether:
(i)the particular subdivision comprised a single building or two buildings; and
(ii)whether if the subdivision comprised two buildings, the Tribunal was bound by the decision in the Billabong case with the outcome that the relevant exemption in cl.52.01 is limited to the subdivision of a single building;
(b)It was open to the Tribunal to determine that the subdivision fell within the relevant exemption;
(c)The Tribunal's interpretation was open having regard to the plain meaning of the words of the exemption and did not necessitate a rewriting of the provision;
(d)The Tribunal's interpretation is supported by the historical context of the exemption;
(e)The Full Court decision in the Billabong case was premised on an entirely different factual basis namely the subdivision of land which happened to contain buildings, not the subdivision of a building or buildings.
The Resolution of the Primary Council Contention
In my view the construction for which the Council contends by way of its primary contention is to be preferred and the Class 2 exemption does not apply to a situation where more than one building is subdivided by way of the one subdivision. First, it reflects the plain meaning of the words used.
Secondly, although I do not regard the point to be of great weight in itself, another sub-clause of cl.52 of the planning scheme namely cl.52.24 which deals with community care centres, utilises the phrase "the building or buildings" when that is what the draftsperson intended and there might otherwise be dispute as to that intention.[5]
[5]This point is not of the weight it otherwise might be because as Mr Gobbo submitted the drafting of the planning scheme reflects the disparate history of different provisions and is not universally coherent.
Thirdly, although the Pellicano Builders' proposal subdivides the land into 16 lots, it does so by way of a pattern which effectively divides the land into two halves each containing one building and then creates lots within each half, each of which occupies part of a building and an adjacent car parking area. Both halves are separated by a common access area but after subdivision the northern part of the land could be owned or occupied by one owner or occupier and the southern by another owner or occupier. If the resultant subdivision had in fact been created in two stages, the first stage dividing the land into two halves with associated mutual rights of carriageway and the second stage subdividing the building within each of the resultant lots, it is clear from the decision in the Billabong case that the first stage would not comprise an exempt subdivision. It would be odd if, by rolling up both the spatial components of the land and the buildings into one subdivision, the subdivider could expand the exemption and avoid the effect of the limitation expressly stated in the Class 2 provisions.
Fourthly, the meaning of the Class 2 exemption would be materially different from its apparent meaning if Mr Gobbo's construction were preferred.
Fifthly, I am of the view that the use of the definite article within the proviso to the Class 2 exemption is deliberate. (Just as it is in the proviso to the Class 1 exemption). More particularly it appears to me that the choice of the phrase "the building" rather than "a building" is a deliberate one. Mr Gobbo accepted during the course of argument that the construction put forward on behalf of Pellicano Builders would amount to substituting the words "a building" for the words "the building" in the proviso. In my view cl.52.01 provides for the making of contributions upon subdivision of buildings but then exempts a specific and limited class of subdivision of commercial and industrial buildings namely the subdivision of a building where each lot contains part of that building.
Sixthly, the above views are very strongly supported by the conclusions of McGarvie J in the Billabong case.
Seventhly, the Billabong case has stood without provoking a subsequent amendment to the planning scheme for 14 years.[6]
[6]Although it is apparent that amendment S18 to the then State Planning Scheme was prepared in a form which would have substituted a proviso covering "the subdivision of a commercial building or buildings provided each lot contains a building or part of a building," this amendment was abandoned after the Billabong decision following the report of an independent panel dated 19 December 1991 which recommended that the amendment was unnecessary as a result of the Billabong decision.
I do not, however, regard the contentions put forward on behalf of the Council as to the purpose of the provisions as helpful. Rather, it seems to me that the fundamental scheme propounded by Mr Townshend on behalf of Callaghan George is correct, namely that subdivisions of land are caught but the subdivision of buildings of the type specified is exempt. The difficulty confronting the defendants is that for the reasons I have stated subdivisions of the type of the Pellicano Builders' subdivision in effect roll up the subdivision of land with the subdivision of separate buildings.
The history of the provisions supports the recognition of a fundamental conceptual distinction between subdivision of land and subdivision of buildings but it does not compel a different conclusion to that which I have set out above.
It is clear that the current provisions are the product of refinement and change. Thus, the second reading speech with respect to the Subdivision Bill which formed the basis of the Act included the following statement:
"The arrangements for provision of open space are an adaptation of the present Local Government Act provisions. Planning schemes may vary the percentage of open space which is to be provided in a subdivision and a combination of cash and land may be contributed to allow a flexible approach to planning open space. A definition of public open space is provided."[7] (My emphasis)
[7]The Hon. E.H. Walker, Legislative Council, 12 April 1988, p.583
Counsel for the defendants sought to place substantial weight on a statement by Mr Roper, then Minister for Planning and Environment in a letter of 28 August 1989 to the Chief Executive Officer of the Building Owners and Managers Association:
"Under the new legislation the open space requirement is in Section 18 of the Subdivision Act. The major concerns that have arisen hinge on the fact that if read in isolation Section 18 would appear to require a 5% open space levy to be paid where, for example, an existing or proposed office development were to be strata subdivided rather than leased.
It is not and has never been the intention that a 5% levy should be paid on the subdivision of existing buildings which would previously have been subdivided under the Strata Titles Act. Nor is it the intention that such a levy should apply to proposed buildings for commercial or industrial purposes.
It has always been the intention that Clause (8)(a) of Section 18 would be used to insert provisions into the State Section of each Planning Scheme which would exempt certain classes of development from the open space requirement. It is currently proposed that these exempt forms of development would include:
‑ Industrial & Commercial Buildings (both existing and proposed)
‑ Existing residential buildings.
It should be noted that these exemptions relate to the subdivision of buildings and do not apply to any conventional land subdivisions for Industrial, Commercial or Residential purposes which will continue to attract the usual 5% requirement as they do at present under Section 569(8A) of the Local Government Act.
I trust that the above information will help allay any apprehension over the provisions of Clause 18 in respect to Commercial and Industrial development."
In my view this letter is of little assistance. First, insofar as it refers to the Act it is a retrospective statement and not a contemporaneous statement made to Parliament. Secondly, insofar as it refers to proposed planning scheme provisions it begs the question of the precise terms of those provisions including the distinction which I regard as critical in this case. To put it another way, the letter does not materially inform the construction of the proviso subsequently embodied in the planning scheme. Thirdly, the meaning of the relevant proviso must ultimately be a question of objective inquiry. As Gleeson CJ said in Singh v Commonwealth[8]:
" … references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred. The words 'intention', 'contemplation', 'purpose', and 'design' are used routinely by courts in relation to the meaning of legislation. They are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked."
[8](2004) 78 ALJR 1383 at 1389
Likewise speaking extra-judicially Spigelman CJ stated earlier this year:[9]
"What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians[10]. Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts[11]. Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute[12].
The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament[13]. The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say[14]."
[9]The Principle of Legality and the Clear Statement Principle, opening address by the Hon. J.J. Spigelman AC, Chief Justice of New South Wales to the New South Wales Bar Association Conference Working with Statutes, Sydney, 18 March 2005, p.2
[10]See eg Eastman v The Queen (2000) 203 CLR 1 at 146-147 per McHugh J
[11]See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169
[12]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young (1999) 46 NSWLR 681 esp at [33]-[37]
[13]see State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported); Pinder v The Queen [2003] 1 AC 620
[14]R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169; Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948 at 953d; [11978] 1 WLR 231 at 236G; Black-Clawson International ltd v Papierwerke Waldhof-Aschaffenburg AC [1975] All ER 810 at 814a, 842; ([1975] AC 591 at 613G, 645C-V; R v Young (1999) 46 NSWLR 681 at [5]; Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161 at [10]; Donselear v Donselear (1982) 1 NZLR 97 at 114
I also do not regard the construction put forward on behalf of the Council as giving rise to anomalous results. It is possible to hypothesise different sequences of subdivision and development which give rise to varying outcomes whichever construction of cl.52.01 is adopted. The Council's construction at least has the virtue of simplicity and relatively ready comprehension by persons affected.
It was also contended by Mr Townshend that several of the arguments now propounded on behalf of the Council with respect to the Council primary contention were not put to the Tribunal in the Callaghan George case. I have not found the particular arguments complained of persuasive. In the circumstances it is unnecessary to further address this point save to observe that the fundamental issue raised by the primary Council contention was clearly before the Tribunal in any event.
Some further criticism was also made on behalf of the Council regarding the individual reasoning of the relevant tribunal in each of the cases under consideration. Having regard to the conclusions I have set out above however, it is unnecessary to say more about this aspect of the matter.
The Secondary Council Contention
The secondary Council contention is that the Class 2 exemption does not apply to subdivision of buildings and land. There are in my view two answers to this contention:
(a)the requirement in the proviso that each lot contain part of the building would be entirely superfluous if by definition each lot could only contain parts of the building; and
(b)the consequence of the construction advanced would be anomalous as buildings which had appurtenant to them any piece of land however small (and whether used for access or landscaping or any other purpose) would fall outside the exemption.
The resolution of the appeals by reference to the primary Council contention is determinative of the matter in the Pellicano Builders' planning appeal. Conversely, it leaves open the question of whether the proposed Callaghan George subdivision involves the subdivision of one or two buildings.
In my view this is a question of fact which the Tribunal should determine having expressly refrained from doing so in its initial determination. I propose to remit the matter for further consideration in accordance with law. I would only observe for the assistance of the Tribunal that in my view the decision of Morris J in Melbourne City Council & Ors v Becton Corporation Pty Ltd & Ors[15] is of no real assistance in the present case. His Honour's decision was relevantly directed to the construction of a particular planning permit condition and not to the statutory framework here in issue.
[15][2003] VCAT 1077
Lastly I must consider whether the Tribunal should be differently constituted for the purposes of the rehearing pursuant to s.148(8) of the Victorian Civil and Administrative Appeals Act. I propose to direct that the Tribunal in the Callaghan George matter may be constituted by the same member who made the original order.
Subject to any further submissions of counsel as to the appropriate form of the order I propose to order:
A. In the Pellicano Builders matter –
(1)The appeal be allowed and the order of the Tribunal of 28 September 2004 be set aside.
(2)The Council's requirement for an open space contribution be confirmed.
B.In the Callaghan George matter –
(1)The appeal be allowed and the order of the Tribunal of 30 September 2004 be set aside.
(2)The matter be remitted for rehearing by the Tribunal in accordance with law.
(3)The Tribunal may be constituted by the same member as when it made the order referred to in paragraph (1) above.
I will hear the parties as to costs.
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APPENDIX "A"
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