SUPREME COURT OF QUEENSLAND
CITATION: | Australand Land and Housing No. 5 (Hope Island) Pty Ltd & Ors v Gold Coast City Council [2006] QSC 332 |
PARTIES: | AUSTRALAND LAND AND HOUSING NO. 5 (HOPE ISLAND) PTY LTD (ACN 106 404 942) |
FILE NOS: | BS 9273 of 2005 and BS 9748 of 2005 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 7 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3-5 October 2006 |
JUDGE: | Chesterman J |
ORDER: | 1.A declaration that the respondent’s resolution of 17 June 2005 by which it resolved to levy the Hope Island Canal infrastructure special charge is invalid and of no effect. 2.The respondent’s resolution of 17 June 2005, and every rate notice dated 12 September 2005 levying the special charge, is set aside. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – respondent constructed infrastructure works and imposed special levy in purported exercise of Local Government Act 1995 s 971 – whether financial effect upon affected owners and alleged need for works were irrelevant considerations ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS –whether the respondent's opinion as to the benefit flowing from the works justifying the special levy was unreasonable – whether the scope of operation of the respondent’s special rate was unreasonable REAL PROPERTY – RATING OF LAND – RATES UNDER LOCAL GOVERNMENT LEGISLATION – POWER TO RATE – SPECIAL RATES – construction of Local Government Act 1995 s 971 – interaction between subss (1) and (6) – whether subs (6) is a saving provision for subs (1) – effect – whether the respondent's special levy is authorised under s 971 |
| Judicial Review Act 1991 (Qld), s 20 Local Government Act 1993 (Qld), s 971 Alan E Tucker Pty Ltd v Orange City Council (1969) 18 LGRA 314, followed Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Parramatta City Council v Pestell (1972) 128 CLR 305, followed Shanvale Pty Ltd v Council of the Shire of Livingstone (1999) 105 LGERA 380, followed Watson v Bankstown Municipal Council (1977) 34 LGRA 403, followed |
COUNSEL: | Mr G Gibson QC with him Mr D O'Brien for the first applicants Mr D Gore QC with him Mr B Cronin for the second applicants Mr M Hinson SC with him Mr S Fynes-Clinton for the respondent |
SOLICITORS: | Allens Arthur Robinson for the first applicants Hopgood Ganim for the second applicant King & Company for the respondent |
‘A.[HICA] represents persons who own land within the “Drainage and Access Reserve” designation under the Hope Island Development Control Plan …
B.The DCP makes provisions for the erection and construction of a major drainage flow path;
C.The drainage flow path (hereinafter “the canal”) will also have the character of a navigable canal so that … land abutting will have direct frontage to a navigable waterway;
D.In order to construct the canal:-
D.1Land owned by members of the [HICA] must be dedicated as a drainage reserve; and
D.2The canal must then be excavated and completed with … appropriate works …;
E.Members of [HICA] have entered into agreements with [ASC] for the required dedication.’
‘The drainage channels designated by the Council will convey flood waters across Hope Island to thereby achieve better land efficiency and cater for flood flows.’
‘The original draft Hope Island [development control plan] prepared in 1988 was based on a concept of open space drainage paths, 175 metres wide, designed to accommodate flood flows. Following submissions from landowners, this was changed to a canal concept to enhance adjacent private land.
The important point is that the Boykambil area has always been a flood-prone area, even before the Sanctuary Cove and Hope Island Resort developments, and in 1976, Council declared virtually all of the island as a drainage problem area.
…
The summary of Council’s objectives
… It is recommended that Council affirm … as follows.
(a)Council supports the objective of promoting and encouraging co-ordinated and orderly development … by the landowners.
(b)Any development of the land, canal and infrastructure at Hope Island is to be funded by the developer or landowner …
…
Canal
The purpose of [this chapter] is to provide background information on the scope and estimated cost of the canal.
To the west of the canal across Santa Barbara Road the canal would meet up with the canal in the Hope Island Resort. However a tidal weir is required between the two canals at the Santa Barbara Road crossing … to separate tidal flows and thus reduce tidal erosion … Such a weir … would provide an engineering control over flood waters from the Coomera River that flow through the Hope Island Resort in an easterly direction and pass over the weir and continue down the canal to the Broadwater at the east of the island.
Prior to the 1980s Hope Island was largely ignored in terms of forward planning. It was low-lying and surrounded by the tidal and flood sensitive salt water creek at Coomera River. Provision of services was seen as uneconomic and drainage problems were seen as a major barrier to development. In the early to mid-1980s, however, Sanctuary Cove was established and Hope Island Resort … was approved. A bridge link was established to Paradise Point. All of this brought urban services to Hope Island and made it more accessible. Interest began to be shown in development of the balance of the area (that is the area not covered by Sanctuary Cove (Hope Island) or the historic townships of Boykambil and Santa Barbara). The drainage was seen as the major physical constraint to further development, with development sites requiring filling and with filling having a possible adverse effect on upstream land by obstructing flood flows … The first mention of a canal scheme appears to be in a letter dated 8 March 1989 … sent on behalf of … a number of … landowners … The letter made no secret of the fact that the thinking behind the proposal was that the same drainage objectives could be achieved as in the draft DCP proposal while at the same time opening up the Boykambil land to development of a … similar type to the … developments on either side …
In 1976 Council declared most of Hope Island to be a drainage problem area … The purpose of the declaration was to give Council additional design control over all building and development applications in the area, due to significant drainage and flooding difficulties in the area.
‘Hope Island Canal Infrastructure Special Charge
That Council levy a special charge under s.971 of the Local Government Act 1993, to be known as the Hope Island Canal Infrastructure Special Charge, (the “special charge”) as follows:
(1)Council make and levy a special charge on the rateable land described below to fund the cost of, and repayment of loan funds used for, construction of the Hope Island Canal Infrastructure works to facilitate development of land within the Hope Island Canal Catchment.
(2)The overall plan for those works be identified as follows:-
(a)The rateable land to which the plan applies is all of the lands specified and described in the table of special charges below.
(b)Those lands are contained within the locality identified by Council as the Hope Island Canal Catchment, and have been developed, or are suitable for development.
(c)The service facility or activity for which this overall plan is made is the construction, and funding of construction, of the new canal system and associated infrastructure works (“the infrastructure works”) which provides necessary development infrastructure to service, and facilitate[s] further development of, the lands to be levied. A more detailed description and itemisation of the infrastructure works constructed (or to be constructed) is set out in Attachment A.
…
(4)The council is of the opinion that the rateable land proposed to be levied with the special charge specially benefits and will specially benefit from, and has and will have special access to, the infrastructure works generally because the specific purpose and function of those works is to provide necessary development infrastructure to service and facilitate development of the rateable land. The land could not be developed and used for such purposes without provision of the infrastructure works, and the provision of the works by the Council, and levy of the special charge, means that future development approvals for the land will not be subject to development conditions requiring the provision of, or payment of the cost of, essential development infrastructure.
(5)The council is further of the opinion that:
(a)the special benefit of the canal infrastructure works is enjoyed by all of the lands proposed to be levied;
(b)as the development potential and likely forms of development for all of the lands to be levied are generally similar, the most appropriate basis of apportioning the total cost of implementation of the overall plan among the identified parcels of rateable land is on a pro rata valuation basis (relying on the valuation report prepared by Alex J Saunders Valuations dated 24 May 2005), excluding State land and in the case of Community Titles Scheme 24715 the special charge applicable to the scheme land is to be apportioned between the lots included in the Scheme in proportion to the interest schedule lot entitlement for each lot.’
…’
‘Acquisition of Land
Canal Construction
Bridges
‘CANAL INFRASTRUCTURE WORKS
ItemCost
Acquisition of land
___________________________________________
Canal Construction
Tennis Clubhouse, Amenities, & Park Works)
____________________________________________
Bridges
_____________________________________________
Professional Fees
(includes Crescent Ave Ped Bridge design)
Royalty for sand$7,466
Council officer time$12,904
TOTAL$19,227,883’
‘(1)A local government may make and levy a special rate or charge on rateable land if –
(a)the rate or charge is for a service, facility or activity; and
(b)in the local government’s opinion –
(i)the land, or the occupier of the land, has or will specially benefit from, or has or will have special access to, the service, facility or activity; or
(ii)…
(2)The special rate or charge may be made and levied on the bases the local government considers appropriate.
…
(3)Without limiting subsection (2), the amount of the special rate … may vary according to the extent to which, in the local government’s opinion –
(a)the land … has or will specially benefit from … the … facility …; or
(b)…
(4)The local government’s resolution making the special rate … must identify –
(a)the rateable land to which the rate … applies; and
(b)the overall plan for the supply of the service, facility or activity.
…
(6)Subsection (1) is taken to have been complied with if the special rate or charge is made and levied on –
(a)all rateable land that, at the time of making and levying the rate or charge, could reasonably be identified as land on which the rate or charge may be made and levied; or
(b)all rateable land on which the rate or charge may be made and levied, other than land accidentally omitted.’
The dictionary in schedule 2 to the Act defines ‘facility’ to ‘include work’. There is no definition of ‘service’ or of ‘activity’.
‘For or towards defraying the expenses of executing any work or service … where … such work or service in the opinion of the council would be of special benefit to a portion of its area to be defined as prescribed, the council … may make and levy a local rate …’
‘The basic principle behind this provision is, without doubt, that owners of rateable land … which would be specially benefited by the execution by a council of proposed works or services, can be called upon to make a special contribution towards the expenses of their execution by means of the imposition of a local rate. … A council must therefore form an opinion whether any and what portion of its area would be specially benefited by the execution of what is proposed. This opinion determines the land that may be rated. There is thus a correspondence, dependent upon the opinion of the council, between (1) the land to which the execution of the work will be of special benefit and (2) the land to be rated. If it could be shown that the portion defined included land about which the council concerned could not in reason hold the opinion that it would be specially benefited by the … works, the section would not authorize the making … of a local rate. Thus … if the works … were the drainage of low-lying land, a council could not, in reason, be of the opinion that high land … would be specially benefited by the execution of the works.
Less obviously perhaps, if the portion defined did not include land which any reasonable man … must be of the opinion would be specially benefited by the … works equally with the land within the portion defined, the section would not authorise the making … of a local rate … This, to take the same instance, if, part of the low-lying land to be drained, were to be omitted from the defined portion, that portion would not be defined as required by the section. The section does not authorize a council to pick and choose among lands that would be specially benefited.
Limitations of the sort just referred to are implicit in the section. The definition of the land that may be subjected to a local rate is determined by the council’s justifiable opinion of special benefit so that, if the so-called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right. The validity of a local rule does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.
A court may interfere only when it appears that a portion defined is so obviously not the land which the execution of the works benefits specially that the court can say that the council’s professed opinion that it is, is one that is not in keeping with the section so that the making of levying of a rate on the basis of that opinion is outside its power.’
‘Work done in a local authority area may be of benefit only to portion of the area or it may benefit the whole area; in the latter case, all the lands in the area will not necessarily benefit in equal measure. A work is of special benefit to a portion of a local authority area if the lands comprising that portion derive from the work a benefit which is not shared by other lands or a benefit which is additional to, or greater than, that which is derived by other lands … It may of course prove disputable whether a work benefits a particular parcel of land and, if so, whether it benefits that parcel more than another. For obvious reasons therefore, the legislature has left it to the council to form its opinion as to whether a particular work is of special benefit to a portion of the area. A court has no power to override the council’s opinion on such a matter simply because it considers it to be wrong. However, a court may interfere to ensure that the council acts within the powers confided to it by law. If, in purporting to form its opinion, a council has taken into account matters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought to have considered, the opinion would not be regarded as validly formed. Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no unreasonable council could have formed it …’
‘Section 121(1) is not a sub-section conferring upon councils any broad discretionary powers; it does no more than leave to a council two questions of fact for it to determine by the formation of its own opinion, the main fact being whether or not specified works or services are such as “would be of special benefit to a portion of its area”. Inherently involved in answering this main question is the need for an answer to the subsidiary question “What portion?” The legislation leaves it to councils to form their own opinions on these questions and those opinions will be conclusive; but there are well defined limits to such conclusiveness, it is not absolute. Thus, in Bankstown Municipal Council v Fripp … Isaacs and Rich JJ said that a council’s opinion on the main question … was conclusive so long as the work or service “is reasonably capable …” of being considered as of special benefit to a portion of the council area. In K.C.R. Pty Ltd v Orange City Council … Ellis-Mitchell J expressed the test negatively in denying conclusiveness where the work or service “cannot be said to be reasonably capable of being regarded by the Council as of special benefit to the particular area defined.”
Likewise, the council’s answer to the subsidiary question will not be conclusive if the portion defined by the council cannot be said to be reasonably capable, in the view of the court, of being regarded as that portion receiving special benefit from the works or services proposed. Conclusiveness will also not attach to a council’s opinion if it be shown to have been formed having regard to extraneous or irrelevant matters …’.
‘(4)A separate rate or charge is a rate or charge made and levied on all or any rateable land in the local authority’s area for or towards meeting the cost of any works, services, facilities or activities supplied or undertaken … by or on behalf of the local authority.
(4A)A separate rate or charge must be made and levied on the rateable land in the local authority’s area that, in the local authority’s opinion, has or will benefit from, or have access to, the work … because of which the rate is made and levied.’
The section spoke of ‘benefit’ not ‘special benefit’ as did the section under consideration in Pestell and as does s 971 of the Act. The court in Shanvale saw no significance in the different terminology.
‘The respondent, in forming its opinion under s 21 … as to which land “will benefit from …” the proposed improved road, was demonstrably wrong and irrational in determining this issue on the basis of which land brought about the need for the improved road … The question for … consideration should have been which land would “benefit from or have access to” the improved road.’
‘As for [the failure to impose the levy upon other lands that would receive some benefit from the road], the legislation in force at the time made it mandatory for the Council to levy any separate rate upon all the land that would benefit from the provision of the road. This cannot be confined to the land the development of which led to its need. Any land that would benefit from it had to be included.’
‘The exercise of the power conferred by s 21(4A) is made subject to the local authority forming an opinion as to which properties will benefit from the work to be funded from the separate rate. It is clear from … Pestell … that if a local authority does not in fact form such an opinion or if the opinion is beyond the bounds of reason the occasion for the exercise of the power will not arise. The statute does not authorise a separate rate made in the absence of the requisite opinion. When a power to raise revenue by rates or charges is circumscribed, the terms of the circumscription must be exactly complied with before the power can be exercised: see Sheffield City Council v Grainger’s Wines Ltd [1977] 1 WLR 1119 at 1125.
…
Lord Diplock explained the concept of unreasonableness in this context in Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064:
“… in public law ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.
The very concept of administrative discretion involves the right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions … What [the decision-maker] had to consider was whether the way in which they proposed to give effect to that preference would, in the light of the circumstances as they existed … involve such interference … that no sensible authority acting with due appreciation of its responsibilities under the Act could have decided to adopt the course …”’
‘A work is of special benefit to a portion of a local authority area if the lands comprising that portion derive from the work a benefit which is not shared by other lands or a benefit which is additional to, or greater than, that which is derived by other lands’
I agree with the approach. The arguments proceeded by reference to whether the respondent could reasonably be of the opinion that the charged lands will specially benefit from the infrastructure works. The arguments did not separately address the question whether the charged lands will have special access to the works. I agree also with this approach. There is nothing in the facts of this case that makes it necessary to distinguish between the two concepts, ‘benefit from’ or ‘access to’ the ‘service, facility or activity’ provided by the respondent.
(i)Hope Island Canal Report No 15, dated 7 March 1997:
‘The 1994/95 review of the Hope Island Infrastructure Levy apportioned the total cost of canal infrastructure works over the … area [which] not only included the properties which front the canal but also a small portion of non-canal front properties, including some … located quite a distance from the canal. The anomaly here is that some non-canal front properties have been inexplicably included in the benefit area, yet clearly they do not receive the same benefit as canal front properties do. In effect, these non-canal front properties are subsidising the canal front properties. Developers of these non-canal front properties have expressed concern on the canal benefit area including their properties. Their argument has been that the canal infrastructure costs stem directly and only from the canal’s construction and since the canal is funded entirely by canal front landowners, the cost of infrastructure works necessitated by the canal (principally bridges and the canal’s entrance channel) should be funded entirely by those same canal front landowners and not subsidised by any non-canal front landowners. There is little one can argue against this proposition. Canal front landowners obtain significant benefit by virtue of being able to market waterfront developments and accordingly are more readily able to pass on these costs to the end purchaser than non-canal front developers could. As will be discussed later, non-canal front landowners do contribute to other components of the infrastructure levy but there is no justifiable reason to levy them for canal infrastructure. Removal of these non-canal properties from the canal benefit area reduces the size of the benefit area from 175 hectares to 96.7 hectares.’
(ii)Hope Island Canal Report No 35, dated 9 March 1998:
‘The cost of bridges has been apportioned over the widest area of canal fronting landowners as possible. The reason for selecting canal fronting landowners was explained in considerable detail on page 34 of the Council report on the proposed Hope Island Infrastructure Contributions Policy (refer to Hope Island Canal Report No. 15). The principal reason is that the need for bridges is entirely created by the construction of the canal cutting through existing roads. As it is the canal fronting landowners (and not any other landowners) that are constructing the canal and therefore creating the need for bridges, these same landowners should bear the cost of providing the bridges necessitated by their canal works.’
(iii)The Hope Island Infrastructure Contributions Policy, which was attachment 3 to Report No 35, and which was adopted by the respondent, stated:
‘As the canal is to be funded and constructed entirely by canal front landowners, the costs of infrastructure items necessitated by the canal will be apportioned to those same canal front landowners, as shown on the canal benefit area map. Canal front landowners obtain significant benefit by virtue of being able to market waterfront developments and accordingly are more readily able to pass on these costs to the end purchaser than non-canal front developers could. Non-canal front landowners do contribute to other components of the infrastructure levy as described in this policy.’
(iv)The Hope Island Infrastructure Contributions Policy Guidelines adopted by the respondent in 2004, which stated:
‘Parks Development – The amount relates to the construction of replacement facilities in the new park on Lots 216 and 217 Sickle Avenue and the making good of facilities within the remaining Banksia and Boykambil Parks. These facilities were removed as a result of the canal consuming parts of Banksia and Boykambil Parks and need to be replaced. This implies that the costs associated with the replacement of these community facilities should be included as a canal infrastructure charge as it is a direct cost of constructing the canal.
As the canal is to be funded and constructed entirely by canal front landowners, the costs of infrastructure items necessitated by the canal will be apportioned to those same canal front landowners, as shown on the canal benefit area map. Canal front landowners obtain significant benefit by virtue of being able to market waterfront developments and accordingly are more readily able to pass on these costs to the end purchaser than non-canal front developers could. Non-canal front landowners do contribute to other components of the infrastructure levy as described in this policy guideline. The canal infrastructure gross benefit area amounts to 98.55 hectares.’
(v)Hope Island Canal Report No 75 dated 23 July 2004 which stated:
‘The General Infrastructure category of works … includes an item of $900,000 for Parks Development … the amount relates to the construction of replacement facilities in the new park of Lots 216 and 217 Sickle Avenue and the making good of facilities within the remaining Banksia and Boykambil Parks. These facilities were removed as a result of the canal consuming parts of Banksia and Boykambil Parks and need to be replaced. This implies that the costs associated with the replacement of these community facilities should be included as a canal infrastructure charge as it is a direct cost of constructing the canal. Based on this principal, the items should be removed form the General Infrastructure Works category and recovered under canal infrastructure.’
‘That the rateable land proposed to be levied with the special charge specially benefits and will specially benefit from, and has and will have special access to, the infrastructure works generally because the specific purpose and function of those works is to provide necessary development infrastructure to service and facilitate development of the rateable land. The land could not be developed and used for such purposes without provision of the infrastructure works, and the provision of the works by the Council, and levy of the special charge, means that future development approvals for the land will not be subject to development conditions requiring the provision of or payment of the cost of essential development infrastructure.’
‘The rateable land … specially benefits … from … the infrastructure works … because the … purpose and function of those works is to … facilitate development of the rateable land.’
This is still circular, but is at least intelligible. The benefit is that the land becomes developable.
‘The service, facility or activity for which this overall plan is made is the construction, and funding of construction, of the new canal system and associated infrastructure works (‘the infrastructure works’) which … facilitate further development of … the lands to be levied.’
Note the reference to a ‘canal system’ and also to the ‘infrastructure works’ which are separately described and costed.
‘… an integral element of the creation of the subject land as a predominantly residential subdivision comprised of lots with the frontage to a tidal navigable canal.’
‘… there is one matter of construction raised by the appellants … namely, that s 121 does not authorize the levy of a local rate to finance the cost of a conglomeration of works and services, but is limited to authorizing the levy of a local rate in a defined area to finance only one work or … service … I should myself not be disposed to agree that s 121 can be invoked in respect of one work or one service only, and many instances can be imagined in which a combination of two or more works may be authorized together provided that the area of benefit from each of the works is the same. The submission, however, highlights the problem of the definition of a single static area as one which derives similar special benefit from a variety of works and services of a widely differing character. This submission, rather than being one of construction, becomes … one of fact or degree … whether … the several categories of works and services were not reasonably capable of being regarded as of special benefit to the … area defined in the resolution.’
‘These factors … emphasise such an absence of similar or common benefit from the several categories of works … that there can be no basis upon which the council could reasonably form the opinion that all lands in the defined area would be likely to derive special benefit from each and every one of the proposed works and services. True it is that in many cases there will be some special benefit from one or other of the works and services, but in others there can be no benefit at all and between these extremes there will be innumerable instances of benefits of varying degree … In such circumstances I find it difficult to say that there is any basis upon which a council acting reasonably could reach the conclusion that every parcel of land in the defined area would derive a special benefit, that is, a benefit over and above some common or general benefit, from each of the works and services.’
(i)the construction of part of the canal (really section A);
(ii)the construction of three bridges across the canal; and
(iii)the acquisition of land for the construction of a new park.
There are two distinct sub-categories within category (ii). The Sickle Avenue bridges are vehicular while the bridge to join Crescent Avenue is limited to pedestrian and bicycle usage. None of the works encompassed by categories (ii) and (iii) can easily be regarded as an integral part of a new canal system, or an integral element of the creation of the charged land as a residential subdivision of lots with frontage to a canal.
(a)For currently undeveloped areas with development rights:
(i)Lower final allotment levels resulting in less fill and earthworks costs.
(ii)Reduced stormwater drainage costs.
(iii)Increased development area.
(b)For developed areas
(i)Decreased flood levels
…
‘Unless the council directs its attention to determining the precise area which, in its opinion, will be specially benefited by the relevant work or service, the local rate will not be validly made pursuant to the provisions of s 121(1).’
‘18.The construction of the canal had the following impacts on existing road and park infrastructure in the relevant locality:-
(a)severing of Sickle Avenue, a north-south road at the western end of Section B, in two places by the northern and southern arms of the canal;
(b)severing of Sheehan Avenue a north-south road at the eastern end of Section B, also in two places by the northern and southern arms of the canal;
(c)severing of Crescent Avenue, a north-south road more or less at the junction between Section A and Section B;
(d)loss of a significant portion of Council parkland in the area which became Section A.
(a)construct a bridge or bridges across the canal to replace the lost road access; and
(b)acquire and develop replacement parkland in the locality.
…
(a)the bridges were required to be constructed only because of the severing of the previously existing road access by reason of construction of the canal; or
(b)the park required to be acquired and developed only because of the substantial loss of the previous park by reason of the construction of the canal (Section A) through that park.’
‘The reason for selecting canal fronting landowners was explained … [in Report No. 15]. The principal reason is that the need for bridges is entirely created by the construction of the canal cutting through existing roads. As it is the canal fronting landowners (and not any other landowners) that are constructing the canal and therefore creating the need for bridges, these same landowners should bear the cost of providing the bridges necessitated by their canal works.’
‘Canal front landowners obtain significant benefit by virtue of being able to market waterfront developments and accordingly are more readily able to pass on these costs to the end purchaser than non-canal front developers could.’
‘… that the primary purpose of the Hope Island canal is to facilitate a private sector development and not a public sector development.’
It went on:
‘The position held by HICA is that the canal development is a Council initiated public flood mitigation scheme.
The inaccuracies of HICA’s views are as follows:
It is therefore wholly inaccurate to view this as a public scheme …’
‘… Construction of the canal and infrastructure works is to be completely funded by the private sector …
It is recommended that Council resolves as follows:
I order that the said resolution of 17 June 2005 be set aside as and from that date. I further order that every rate notice dated 12 September 2005 levying the special charge be set aside.
