Meriton Apartments Pty Limited v Council of the City of Sydney (No 3) [2011] NSWLEC 65

Land and Environment Court New South Wales

Medium Neutral Citation: Meriton Apartments Pty Limited v Council of the City of Sydney (No 3) [2011] NSWLEC 65 Decision date: 15 April 2011 Before: Pepper J Decision: In each of 40293 and 40957 of 2009 the further amended application is dismissed and Meriton is to pay the council's costs of the proceedings. Catchwords: Judicial Review:- whether fees charged by the council for the service of establishing Work Zones was a valid exercise of power by the council - whether the fees could be supported by another head of statutory power - whether the fees charged were manifestly unreasonable because they included both the direct and indirect costs to the council of providing the service - whether the council failed to take into account a mandatory relevant consideration in determining the fees - whether the council took into account an irrelevant consideration in determining the fees - whether the fees had as a component a penalty for development exceeding 12 months - whether, if unlawfully charged, Meriton was statute barred from recovering part of the fees - held fees validly determined and charged by the council

STATUTORY CONSTRUCTION:- whether the phrase "the cost to the council of providing the service" only includes direct costs

TAXATION:- whether the fees were for services provided by the council or whether they had the character of taxes

RESTITUTION:- whether, if unlawfully charged, Meriton was precluded from recovering the fees because they had been passed on - whether, if unlawfully charged, Meriton could recover the fees while retaining the benefit received from the council for their payment Legislation Cited: Interpretation Act 1987 s 21 Local Government Act 1993 ss 7(d), 8, 220, 608, 610, 674 and 676 Local Government Amendment (Legal Status) Act 2008 Recovery of Imposts Act 1963 ss 1A, 2, 4, 5, 6, 7(1) Roads Act 1993 ss 7(4),145, 223 Cases Cited: Air Caledonie International v Commonwealth [1988] HCA 61; (1988) 165 CLR 462 Air Canada v British Columbia [1989] I SCR 1161; (1989) 59 DLR (4th) 161 Air Services Australia v Canadian International Airlines Ltd [1999] HCA 62; (1999) 202 CLR 133 ANZ Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 Associated Provincial Picture Houses v Wednesbury Corporation [1984] 1 KB 223; [1947] 2 All ER 680 Australian Capital Territory v Queanbeyan City Council [2010] FCAFC 124; (2010) 188 FRC 54 Avon Product Pty Ltd v Commissioner of Taxation [2006] HCA 29; (2006) 230 CLR 356 Baulkham Hills Shire Council v Wrights Road Pty Ltd [2007] NSWCA 152; (2007) 153 LGERA 219 Chase Oyster Bay Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Commissioner for State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Deutsch Morgan Grenfell Group plc v Inland Revenue Commissioners [2007] 1 AC 558; [2006] UKHL 49 Douglas Shire Council v Queensland Ombudsman [2005] QSC 207; (2005) 141 LGERA 237 Gorczynski v Perera [2004] NSWCA 70; (2004) 132 LGERA 341 Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 Hematito Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 559 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckeroff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 King Street Investments Ltd v New Brunswick [2007] I SCR 3; (2007) 276 DLR (4th) 342 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010); 239 CLR 531 Mathews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 Ovidio Carrideo Nominees Pty Ltd v Dog Depot Pty Ltd [2006] VSCA 6; (2006) V ConvR 54-713 Pavey & Mathews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 280 CLR 516 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 Williams v Minister for Planning (No 2) [2011] NSWLEC 62 Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70; [1992] 3 All ER 737 Texts Cited: Mason & Carter's Restitution Law in Australia (2nd ed) (2008) (LexisNexis Butterworths, Australia) Category: Principal judgment Parties: Meriton Apartments Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Mr D Russell QC with Mr M Seymour (Applicant) Mr M Leeming SC with Ms J Shepard (Respondent) Meriton Group (Applicant) Council of the City of Sydney (Respondent) File Number(s):