WERNDLY and CITY OF KARRATHA
[2015] WASAT 15
•19 FEBRUARY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: WERNDLY and CITY OF KARRATHA [2015] WASAT 15
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 9 DECEMBER 2014
DELIVERED : 19 FEBRUARY 2015
FILE NO/S: DR 316 of 2014
BETWEEN: JOHN VICTOR WERNDLY
Applicant
AND
CITY OF KARRATHA
Respondent
Catchwords:
Application for review Service charge Underground power Question of general interest Provision of a prescribed work Meaning of 'in relation to the land'
Legislation:
Local Government Act 1995 (WA), s 6.38, s 6.38(1), s 6.38(4), s 6.82, s 6.82(1)
Local Government (Financial Management) Regulations 1996 (WA), reg 24, reg 54
Result:
Application dismissed
Summary of Tribunal's decision:
The State Government and Horizon Power are implementing what is referred to as the Pilbara Underground Power Project. The City of Karratha imposed a service charge on its ratepayers to meet its contribution to the cost of the project within its district.
The service charge comprises three components, a high voltage component, a low voltage component and a connection charge. The applicant objected to being required to pay the high voltage charge because he did not consider that there was a sufficient relationship between that charge and his property. He also objected on the basis that the service charge was not being imposed for a prescribed work, namely underground electricity, but instead or in addition was being used to pay for the cost of upgrading the power network, which is not a prescribed work. He further maintained that the money raised from the service charge had not been applied solely in respect of the cost of the work concerned.
The application came before the Tribunal under s 6.82 of the Local Government Act 1995 (WA). This provides that where there is a question of general interest as to whether a service charge was imposed in accordance with the Act, the matter can be referred to the Tribunal to have it resolved.
The Tribunal heard the applicant's application and decided that the service charge was imposed only for a prescribed work, namely underground electricity, and that the prescribed work was in relation to the relevant property. The Tribunal therefore considered that the service charge had been imposed in accordance with the Act.
The Tribunal also decided that the evidence did not support the applicant's contention that the service charge was not applied solely in respect of the prescribed work. The Tribunal therefore did not need to consider what the effect of that contention would have been if it had been established.
The Tribunal dismissed the applicant's application.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr McLeod
Solicitors:
Applicant: N/A
Respondent: City of Karratha
Case(s) referred to in decision(s):
Joye v Beach Petroleum NL and Cortaus Ltd (In Liq) (1996) 67 FCR 275
PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The application
This matter comes before the Tribunal by way of an application from Mr John Victor Werndly dated 17 September 2014. The application is made under s 6.82(1) of the Local Government Act 1995 (WA) (LG Act). This section relevantly provides that, where there is a question of general interest as to whether a service charge has been imposed in accordance with the LG Act, the local government or any person may refer that question to the Tribunal to have it resolved.
Under the application, the applicant is seeking an order from the Tribunal to 'quash a service charge levied by the City of Karratha (City) for a high voltage allocation as part of the Pilbara underground power project'.
The applicant's grounds for his application are set out as follows:
That the [City] is acting outside of its powers in levying the service charge as the service charge does not relate to the [relevant property] … . This matter is one of general interest per s 6.82 of the [LG Act] as it affects most ratepayers in Karratha and in addition the Minister for Local Government has suggested that the matter may be considered under s 6.82 of the [LG Act].
The service charge in question was imposed under s 6.38(1) of the LG Act and the purported purpose of it was to replace the existing overhead electricity lines with underground cables within the district.
Filing of and access to documents
In accordance with programming orders made by the Tribunal on 3 October 2014, the parties both then filed written submissions. The City also filed a bundle of documents and witness statements from, respectively:
1)Mr Phillip Michael Trestrail, Director, Corporate Services of the City; and
2)Mr Brett Hovingh, an employee of Horizon Power as its NWIS system manager.
Prior to the final hearing, the applicant sought an order for access to a contract which he understood had been entered into between the City and Horizon Power for the design and building of the underground power works. He said that if he could see this document he would be able to demonstrate that some components of the contract related to improvements to the power supply to Karratha and not to the underground power project.
The Tribunal advised the parties that it would hear from them at the hearing about the production of this document.
The hearing
The hearing of the matter took place on 9 December 2014. At the hearing, the applicant appeared in person. The City was represented by Mr McLeod.
The parties tendered a number of additional documents, including:
a)a plan showing Karratha City underground power scheme (Exhibit E);
b)a document entitled 'Scope of Works' with annexures (Exhibit F);
c)the Shire of Roebourne Local Planning Strategy (Exhibit H); and
d)a copy of certain brochures and public information about the underground power project provided to Karratha residents (Exhibit I).
Exhibit F contains a list of nine aspects of the planning, design, installation and commissioning of the underground electricity supply distribution system in Karratha and Roebourne. It extends to approximately half a page and includes two aerial photographs of the project areas. It is quite evident that it is an extract from another document.
While the applicant did not raise any issue about what Exhibit F was, he objected to the fact that it had only then been provided to him, without giving him adequate time to consider it. He emphasised later in his final submissions that it was 'detrimental to the applicant's case in that it was not properly submitted as part of the [City's] submission in accordance with deadlines that were set … and which would have given the applicant sufficient time to review the document'.
It was in fact for this reason that at the close of the final hearing I allowed time for the applicant and the respondent to file further submissions. The applicant did so first, followed by responsive submissions from the City. I consider that the applicant has therefore been given an adequate opportunity to consider Exhibit F and to make further submissions if he saw fit, which he did. I therefore do not believe that the applicant's case has been prejudiced in the way described by him.
Facts
The relevant background facts are uncontroversial and are largely agreed between the parties. They are drawn from the witness statement of Mr Trestrail and from a partially agreed statement of facts.
The Pilbara Underground Power Project (PUPP) is an initiative of the State Government and is being delivered by the power generator for the region, Horizon Power.
The stated intention of the PUPP is to provide homes in the Shire of Roebourne with underground power. The stated reason for this project is that underground power provides greater reliability and resilience, especially in areas which are susceptible to cyclones and extreme weather events, as well as providing enhanced streetscapes and street lighting (Exhibit I).
The works in Karratha commenced in October 2010 and by the date of the hearing some 40% of the Karratha scope of works was complete.
The community contribution for the project in Karratha is 25% of the total project costs, the remaining 75% being met by the State. The City's contribution has been capped at $34.55 million.
In order to fund the community contribution, the City's council resolved on 30 June 2014 to levy service charges on property owners in accordance with s 6.38 of the LG Act and reg 54 of the Local Government (Financial Management) Regulations 1996 (WA) (Regulations). The charge comprises three components, namely a high voltage charge, a low voltage charge and a connection cost.
The high voltage charge relates to the 'undergrounding' (a term used by the parties and one that I will adopt in these reasons) of high voltage power infrastructure that supplies power to the suburbs. The high voltage charge is based on the total estimated costs attributable to the high voltage works divided by the total power capacity (kVA) of the network. The high voltage charge has been calculated to be $48.26 per kVA. That rate per kVA is then multiplied by the kVA for each individual property. A normal residential property has a kVA of 10 kVA and so the high voltage service charge for each residential property is $482.60.
The low voltage charge relates to the undergrounding of infrastructure that carries power throughout the suburbs, including transformers, switch gear and street lighting. The low voltage charge is based on the total estimated costs attributable to the low voltage works divided by the total power capacity (kVA) for each individual property included in the PUPP. The low voltage charge has been calculated to be $196.38 per kVA. That rate per kVA is then multiplied by the kVA for each individual property. A normal residential property has a kVA of 10 kVA. This equates to a low voltage service charge for each residential property of $1,963.80.
Properties in an area with existing underground low voltage infrastructure are not required to pay the low voltage service charge.
The connection charge relates to the cost of undergrounding existing overhead property connections to the network. The connection charge (of $1,022.17 per connection) is based on the total estimated costs attributable to connection works divided by the total number of connections for properties undergrounded as part of the PUPP. A normal residential property has one connection which equates to a connection service charge of $1,022.17.
Again, properties with an existing underground connection are not required to pay this charge.
Service charge notices were issued on 7,968 properties on 21 July 2014. High voltage charges levied are expected to generate $7.9 million of the total $34.55 million contribution to Horizon Power.
The property the subject of the applicant's application is situated at No 6 Plumegrass Way, Nickol. This property is in an area with existing underground low voltage infrastructure and an existing underground connection. Accordingly, the property does not attract the low voltage charge or the connection charge.
However, the high voltage lines that transfer power from the substations to Nickol still exist above ground. As such, property owners in Nickol have been required to contribute to the high voltage works, being $482.60 for a normal residential property.
By way of comparison, a typical residential bill for property owners in other suburbs where the low voltage transmission lines are still above ground is $3,468.57.
The City has assessed and levied a service charge of $482.60 against the applicant's land under Assessment A78615 dated 21 July 2014 (Assessment). The Assessment specifies that the service charge is an amount for high voltage works only (City's bundle of documents at Tab 3).
Incidentally, although I refer to the property in Plumegrass Way as being the applicant's land, I make no finding in that respect. I do not know whether the applicant in fact owns this property. The Assessment is addressed to Pierce Stephen Fleming, not the applicant.
I am therefore unclear whether the applicant is making his application as owner of the property or otherwise. For the purposes of these reasons, however, I will refer to the applicant as the owner of the land.
Mr Trestrail's evidence at the hearing
Under cross-examination by the applicant, Mr Trestrail reiterated that 75% of the cost of the PUPP is being met by the State Government. The remaining 25%, $34.55 million, is to be met by the City from the contributions made by individual property owners.
Mr Trestrail was questioned about the nature of Exhibit F, the 'Scope of Works' document. He explained that it is a copy one of the schedules attached to the funding agreement for the project which has been entered into between the City and Horizon Power. He said that the 'Scope of Works' is a description of what it is that the City is paying for out of those contributions (T:42). He said that it is not the scope of what Horizon Power might be engaging its contractors to carry out, which would be much more detailed and specific (T:46 and 47).
He said that the PUPP is entirely an initiative of the State Government and Horizon Power. The City's role is to fund the City's contribution towards the cost of the works. He said that the City has not engaged Horizon Power or anyone else to carry out the works. He said that the City is a partner for the purpose of providing the funding for the project, but not for the purpose of determining the works (T:48 and 49).
He confirmed that the funding agreement was the only agreement between the City and Horizon Power and there was no other contract between the City and Horizon Power in respect of the PUPP (T:48).
He also told the Tribunal how the individual contributions were calculated. He said that, in the case of the high voltage charge, the contribution for a private resident was based on a kVA of either 7.5 or 10, depending on whether the property was an individual residence or part of a multiunit dwelling. However, he conceded that some property owners would be subsidising others to some extent because it had not been considered practical to carry out individual assessments for each property (T:45 and 46).
The applicant urged Mr Trestrail to explain how he could be satisfied that the City's contribution was being applied solely towards the cost of placing the power underground. Mr Trestrail continued to maintain that he was satisfied that the City's contribution had been and would be applied only to the cost of the underground power project. He said that if Horizon Power had included in the work any upgrading or other improvements or changes to the power system or network, then that was entirely a decision for Horizon Power. He stated categorically that the City had not agreed to pay for any such improvements or changes and that 'the 34.55 million dollars that the Council is raising through way of its service charge and passing on to Horizon Power is all for undergrounding electricity' (T:53). Mr Trestrail expressed confidence that he had sufficient expertise to take this position (T:59).
Mr Hovingh's evidence in chief and at the hearing
Mr Hovingh's evidence in chief is relatively straightforward. He says that he has over 13 years of experience in engineering and in the electricity industry. He has been working with Horizon Power since 2005 and he says that he has extensive experience in the operation and management of electrical networks.
Mr Hovingh explains the relationship between high voltage and low voltage electricity in the following way. He says that once electricity is generated from a power station, it is transported to homes and businesses along a network of wires or cables. As electricity leaves power stations, it is stepped up to a high voltage. However, in order for electricity to be safe and usable when it reaches the customers' premises, the voltage needs to be substantially reduced. Power utilities use a series of transformers to reduce the voltage as it travels along the network. These voltages normally include:
a)transmission voltage (lines operating at 66 kV to 500 kV);
b)high voltage (lines operating at 11 kV to 33 kV); and
c)low voltage (lines operating at 415 V).
Transformers convert the voltage from one level to another and connect the customer's installation at the required voltage. Most homes and businesses use low voltage electricity to power their premises. The low voltage network is energised by the high voltage network, which in turn is energised by the transmission voltage network. A failure of the transmission voltage or high voltage networks would result in an outage of the low voltage network.
Mr Hovingh concludes that the provision of electricity to individual premises requires both high and low voltage networks.
Mr Hovingh supplemented his evidence with oral testimony. He confirmed that the supply lines from the power station to the various substations are not included in the program for undergrounding electricity and are to remain overhead. He said that the lines between the power station and the substations are not susceptible to weather conditions including cyclones because they run in loops so that 'if one leg trips, the others still stay on'. This is the not the case with the high voltage and low voltage wires and cables (T:70).
He confirmed that the City is contributing to the undergrounding of the overhead high voltage and low voltage lines (T:69).
Under cross-examination, Mr Hovingh said that the design of the works included the provision of underground power to light industrial areas within the district. The design also included underground power to properties in Roebourne.
The applicant asked him expressly:
Mr Werndly: Was any of the work that was done under that contract charged back to the City for works other than the existing underground? Was it for expansion of the network for future capacity? I don't understand why that's so complex?
Mr Hovingh: So the answer to that is no simply because the this project has other funding partners. The City of Karratha is being charged as per the scope of work for the work to underground the existing distribution high voltage and low voltage network.
Mr Werndly: And nothing else?
Mr Hovingh: And that is what we go to our contractors for to install that bit. Other people are funding other portions of the project, but that's not for the City of Karratha.
Legislation
Section 6.38(1) of the LG Act:
Service charges
(1)A local government may impose on
(a)owners; or
(b)occupiers,
of land within the district or a defined part of the district a service charge for a financial year to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land.
Section 6.38(4) of the LG Act:
(4)A local government may only use the money raised from a service charge
(a)to meet the cost of providing the specific service for which the work, service or facility charge was imposed; or
(b)to repay money borrowed for anything referred to in paragraph (a) and interest on that money.
Section 6.82 of the LG Act:
General review of imposition of rate or service charge
(1)Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved.
(2)Subsection (1) does not enable a person to have a question relating to that person’s own individual case resolved under this section if it could be, or could have been, resolved under section 6.76.
(3)The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed.
Regulation 24 of the Regulations:
Service charges information required
In relation to each service charge, the annual budget is to include
(a)details of the nature of the service for which the service charge is imposed; and
(b)the objects of, and reasons for, the service charge; and
(c)the amount of the service charge; and
(d)an estimate of the total amount to be imposed by way of the service charge; and
(e)if the service charge is to be imposed on land in a defined part of the district, a brief description identifying the area within which the service charge is to be imposed; and
(f)details of how the proceeds of the service charge are to be applied, including an estimate of
(i)the amount to be applied; and
(ii)the amount to be set aside in a reserve account; and
(iii)the amount to be applied from the reserve account.
Regulation 54 of the Regulations:
Works etc. prescribed for service charges on land (Act s. 6.38(1))
For the purposes of section 6.38(1), the following are prescribed as works, services and facilities
(a)property surveillance and security;
(b)television and radio rebroadcasting;
(c)underground electricity;
(d)water.
The applicant's case
Earlier in these reasons I set out in full the applicant's grounds in his application for the order which he is seeking. The order sought is, essentially, that the provision of the work for which the service charge was imposed is not in relation to the property in Plumegrass Way.
While this was the original basis of the application, it became clear during the course of the proceedings that the applicant had developed his case to include other concerns.
I asked the applicant at the outset of the hearing whether his objection still centred around the fact that he was being asked to pay for the undergrounding of the high voltage transmission infrastructure on the basis that they did not relate to his property. He replied '… that's one of the lesser tenets of the questions, yes, yes' (T:14).
I do not understand from this that the applicant is abandoning his original objection. However, I am proceeding on the basis that this is only one ground of his objection. I will also examine what I understand to be further grounds for his application, namely that:
a)the service charge was not imposed to meet the cost to the City in the provision of 'a prescribed work' (s 6.38(1) of the LG Act) because the work included other work not prescribed in reg 54 of the Regulations; and
b)the money raised from the service charge was not used only to meet the cost of providing the specific service for which the service charge was imposed (s 6.38(4) of the LG Act) but was also used for other purposes.
I will deal with each of the applicant's grounds in turn.
The installation of the high voltage underground infrastructure was not in relation to the property at 6 Plumegrass Way
The applicant says that the word 'relation' in s 6.38(1) of the LG Act means:
• an existing connection;
• a significant association between or among things;
• the relation between cause and effect.
The applicant cites an on-line dictionary as the source of this definition.
In the applicant's submission it follows that, for the service charge to be validly imposed, there must be an existing connection or significant association between the work for which the service charge is being raised and the property to which the service charge is being applied.
In his written submissions filed prior to the hearing, the applicant says that because high voltage power (11 kV 33 kV) needs to be transformed to low voltage power (415 kV) for residential usage, there is a 'fundamental difference in the service that arrives at [the relevant property].'
In particular, he explained, the placing underground of transformers was something which he says could not relate to his property. He said '… and the word transformer, in itself, brings to mind a transformation of the power to such a degree that it may not related [sic] to the power that goes into my house, which is a low voltage system' (T:15).
The applicant says that the very fact that power is transformed from high voltage to low voltage prior to its 'arrival at the land' is a significant change in the nature of the electricity that is delivered to the land. Therefore, the applicant says that the high voltage power does not relate to the land; applicant's closing submissions at page 2.
The applicant dismisses the argument that without high voltage power there can be no low voltage power. He says that this cannot lead to the conclusion that the high voltage power is related to the land. The applicant says that if this were the case, then the cost of the power station itself and the control equipment for distribution and monitoring power transmission, all essential elements in the power supply chain, should also be regarded as being in relation to the land. The applicant does not accept this.
Also in his closing submissions, the applicant sets out another concern, namely that no calculation has been made in respect of the individual properties against which the service charge has been levied to account for actual usage of power by the property concerned. The applicant submits that a 'proper formed calculation that related to the land would take account of such matters as whether the land and the amenities on that land had for instance air-conditioning or a pool or whether the property was inhabited by many of [sic] few people and generally the size of the structure on that land and all such other matters that actually relate to the land'; applicant's closing submissions at page 1. Rather, the applicant says, the service charge has been allocated on the basis of 'potential capacity'; applicant's closing submissions at page 2.
During the course of the hearing, it became evident that the applicant was also questioning on another basis the lack of a relationship between the service charge and the Plumegrass Way property. He says that the underground power project encompassed not only Karratha, but also Roebourne, 'which lies some 38K East of Karratha'; applicant's closing submissions at page 4. He questions how, therefore, it can be said that the service charge and the prescribed works were in relation to his property.
The service charge was imposed to meet not only the cost of a prescribed work, but also for another purpose which is not prescribed
The applicant quotes the following passage from the Shire of Roebourne Local Planning Strategy (Exhibit H, page 29):
A change in voltage from 11kV to 22kV is needed to support Karratha's future load growth in residential and commercial areas. The changeover will cost an estimated $25M and funding has already been allocated as part of the Pilbara Underground Power Project, with construction anticipated to commence in July 2010 and completion by the end of 2011.
During the course of his oral submissions made at the hearing, the applicant said:
Your Honour, my concern, really, was not driven by large matters of principle or things like that. It was somehow I felt that Horizon Power have an obligation in to maintain and upkeep infrastructure; that they collect money and that in their terms of their charging of the power supply. That is a component of your bill that comes every two months that covers supply charge, and that in itself is a capital cost, if you like, for infrastructure. And my concern was that this PUPP has been utilised to upgrade infrastructure when that, perhaps, should have been a capital cost by Horizon. (T:17)
He submits that as far as the high voltage infrastructure is concerned, the true purpose of the works is to upgrade the high voltage network to cater for the future electricity needs of the region and generally to meet the cost of upgrading existing infrastructure. It is to meet a future demand for power from residential and commercial properties that may not yet exist. Accordingly, in his submission, the service charge is unlawful because it is not imposed for a prescribed purpose as is required by s 6.38(1) of the LG Act.
The money raised by the service charge will not be used only for a prescribed purpose
Finally, the applicant submits that the money raised from the service charge is not being used to meet the cost of providing the specific work for which the service charge was imposed as required by s 6.38(4) of the LG Act.
This argument is largely based on the fact that if the applicant is correct in his contention that the money raised from the service charge was imposed for a purpose other than a prescribed purpose, then it follows that the service charge has not been and will not be used to meet the cost of the prescribed purpose. This ground can only succeed if the preceding ground is established.
For completeness, I mention one further point made by the applicant. The applicant at some stage in the proceedings seemed to be suggesting that the City had not complied with reg 24 of the Regulations. I do not understand the applicant to be pressing that point. I believe that he was concerned only with what he understands to be the City's suggestion that 'noncompliance with the regulations (reg 24) would not impact the validity of the service charge'; applicant's closing submissions at page 4.
Accordingly, I do not intend to address this last matter.
Findings
These are my findings in respect of each of the grounds of the applicant's objection.
Does the installation of the high voltage infrastructure underground relate to the property at 6 Plumegrass Way?
The phrases 'in relation to', 'relates to' and 'relating to' have all been judicially considered on a number of occasions.
In Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, the High Court considered an exemption from stamp duty for 'all instruments relating to the services of apprentices, clerks and servants'.
Taylor J, at 620, said:
… the expression 'relating to' is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. … It is … clear that the relationship must appear upon an examination of the instrument itself for it is the character of the instrument which is the material question and this cannot be resolved by an examination of extraneous matters in order to determine the purpose of the parties.
In Joye v Beach Petroleum NL and Cortaus Ltd (In Liq) (1996) 67 FCR 275 at 285, Beaumont and Lehane JJ approved the statement of Taylor J set out above. They continued:
Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon the context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice … .
In PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 (PMT) at 313, Brennan CJ, Gaudron and McHugh JJ said:
Inevitably, the closeness of the relationship required by the expression 'in or in relation to' in [the relevant Act] - indeed, in any instrument - must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.
In PMT at 331, Toohey and Gummow JJ said:
The connection which is required by the phrase 'in relation to' is a question of degree. There must be some 'association' which is 'relevant' or 'appropriate'. The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context.
The provisions of s 6.38 of the LG Act and the provisions of reg 54 of the Regulations provide the context of the words 'in relation to the land' in s 6.38(1) of the LG Act.
Section 6.38(1) of the LG Act provides the local government with the power to impose on owners or occupiers of land in the relevant district or specified part of the district a service charge for the provision a prescribed work, service or facility in relation to 'the land'. The reference is to owners or occupiers, not to an owner or an occupier. In my view, when s 6.38(1) of the LG Act is considered in the light of the types of prescribed works, services and facilities set out in reg 54, the reference to the land in s 6.38(1) must be read as a reference to all of the land in the district or the specified part of the district. Land does not mean specifically the applicant's land, although it must include the applicant's land.
The relationship between the prescribed works and the land within the district is the benefit which the works will provide to that land. That benefit can be discerned from the stated purpose of the works. The purpose is to provide a more reliable and resilient electricity power supply in an area which is known to be susceptible to cyclones and extreme weather events, as well as providing enhanced streetscapes and street lighting.
Clearly, some of the individual properties will benefit from the works more than others. Some of them, including the applicant, are already enjoying at least the aesthetic benefits of underground power within their own subdivision, without the need for the works. However, so long as some benefit will be derived from the works by the owners or occupiers of the land in the district, there is a clear relationship between the works and that land. The obvious benefit of the works in the case of the applicant's land is a more secure supply of electricity. That benefit cannot be achieved unless the high voltage lines are replaced by underground cables.
My conclusion is that the prescribed works are in relation to the land within the district which includes the applicant's land. I find that the applicant's application, on the ground that the prescribed work is not in relation to his own land, fails.
Was the service charge imposed for a prescribed work, namely underground electricity, and not for another purpose?
The applicant says that he has been thwarted in his attempts to demonstrate that the service charge was imposed for something other than underground power. This is because of the City's alleged failure to provide him with a copy of the contract for carrying out that work which he says has been entered into between the City and Horizon Power.
I consider that the applicant is under some misapprehension in this regard. I am satisfied that the document to which he is alluding, namely a contract or agreement between Horizon Power and the City to undertake the relevant works, does not exist. The evidence is clear that the underground power project is an initiative of the State Government through Horizon Power and it is for Horizon Power to engage designers, builders and other contractors to undertake this work. I accept the evidence of the City that the only agreement between the City and Horizon Power is the agreement under which the City will fund part of that work. The applicant has been provided with a copy of the 'scope of works' in respect of that funding agreement and I see no utility in insisting that the City provide other further documentation. Whatever other work Horizon Power may or may not be carrying out during the course of or as part of the PUPP, the relevant question is not the extent of that work but the extent to which the City is applying the service charge.
The evidence of the City is that the service charge is being applied entirely and exclusively for the underground power work and I accept that evidence. The applicant has led no evidence that would draw me to form a different conclusion.
Accordingly, I find that the service charge was imposed for a prescribed work, namely underground electricity, and for no other purpose.
Was the money raised by the service charge used only for the purpose of providing underground electricity?
Again, the evidence does not support the applicant's assertion that the money raised from the service charge has not been used only to meet the cost of providing underground power to the district.
A finding that the money raised, so far as it has been expended, was used for the prescribed work is entirely consistent with my finding that the service charge was imposed for that prescribed work and I so find.
Accordingly, it is unnecessary for me to consider what effect, if any, a breach of s 6.38(4) of the LG Act by the local government would have on whether the service charge was validly raised under s 6.38(1) of the LG Act.
Orders
1. The application is dismissed.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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