Warde Street Pty Ltd v Minister for Planning - [2021] VSC 238

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2019 05027

WARDE STREET PTY LTD	Plaintiff
v
MINISTER FOR PLANNING	Defendant

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2021
DATE OF JUDGMENT:	7 May 2021
CASE MAY BE CITED AS:	Warde Street Pty Ltd v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2021] VSC 238

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VALUATION AND PLANNING – Land in urban renewal area made subject of a development contributions plan (‘DCP’) overlay pursuant to amendment AMC145 to the Maribyrnong Planning Scheme (‘MPS’) – DCP overlay requires permit granted for specified types of development within area to contain condition requiring payment of a levy as condition of the right to develop pursuant to permit – Plaintiff holder of planning permits to construct multi-story mixed use developments comprising residential and retail premises – Permits required plaintiff to enter into agreement under s 173 of the Planning and Environment 1987 to provide a financial contribution towards costs of some infrastructure items subsequently included in DCP – Plaintiff also holder of permits to subdivide proposed developments into lots in stages in accordance with endorsed plans – Condition 3 of subdivision permit required payment of development infrastructure levy in accordance with DCP in respect of each unit payable in stages prior to issue of statement of compliance with any works or payments which the owner has paid under earlier specified permits to be reflected as a credit for the value of any works comprised in infrastructure projects funded by the DCP – Combined effect of permits requires plaintiff to make sequential payments towards infrastructure costs first under development permits which authorise construction of proposed mixed use buildings and secondly under the permits which permit subdivision of those buildings – Second requirement imposed pursuant to and in accordance with terms of MPS as amended by AMC145.

JUDICIAL REVIEW – Whether AMC145 beyond power and of no legal effect because contrary to s 46K of the Planning and Environment Act 1987 Act it purports to levy development contributions in respect of development that has already been approved by existing permits and/or does not relate the need for works, services and facilities (or some of them) to the proposed development of land in the area as required by s 46I – Whether to the extent that the DCP purports to levy development contributions in respect of the subdivision of the air space for dwellings, the construction of which has already been approved under an existing permit, such requirement is invalid because it is not a DCP within the meaning of s 46K of the P&E Act; it does not relate the need for the works, services and facilities to be provided (or some of them) to the proposed development of the land in the area as required by s 46I of the P&E Act; it is an unlawful tax – Meaning of ‘proposed development’ in s 46K(1) – Meaning of requirement…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 238
Decision Date: 7 May 2021

CaseChat Overview and Summary

Warde Street Pty Ltd challenged the validity of Amendment 145 (AMC145) to the Maribyrnong Planning Scheme, which imposed a development contributions plan (DCP) on urban renewal land. The plaintiff, Warde Street, holds planning permits for multi-story mixed-use developments and subdivision permits for the lots in these developments. The DCP requires payments towards infrastructure costs, which Warde Street claims are invalid because the development has already been approved and the levy is not related to the proposed development of the land.

The court considered whether AMC145 was beyond power and contrary to the Planning and Environment Act 1987. Specifically, the court examined whether the amendment could levy contributions for developments already approved by existing permits and if the DCP related the need for works, services, and facilities to the proposed development. The court also assessed whether the levy on the subdivision of the airspace for dwellings, which had already been approved under existing permits, was a valid DCP.

The court determined that AMC145 was valid and within the power of the council. It found that the DCP was properly related to the development of the land and that the levy was not an unlawful tax. The court held that the meaning of "proposed development" in the statute included the subdivision of airspace for dwellings and that the imposition of the levy on the subdivision was valid. The court's reasoning was based on the provisions of the Planning and Environment Act 1987 and relevant case law.

The final orders of the court were that the amendment was valid, and the development contributions plan was properly related to the development of the land. Warde Street's challenge to the validity of the DCP was dismissed.

Orders