RUSSO and ORS v BURWOOD MUNICIPAL COUNCIL [1996] NSWCA 459

RUSSO v BURWOOD MUNICIPAL COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, SHELLER and BEAZLEY JJA 13 September 1996, 25 November 1996

[1996] NSWCA 459

BUILDING CONTROL AND TOWN PLANNING — Development Applications — Consent granted subject to conditions — Whether conditions imposed under s94 Environmental Planning and Assessment Act 1979 were unreasonable in the Wednesbury sense — whether conditions related fairly and reasonably to the subject development

The appellants applied for development consent from the respondent council in respect of the redevelopment of premises in Burwood. The consent was granted subject to 14 conditions. The appellants appealed to the Land and Environment Court under s97 of the Environmental Planning and Assessment Act 1979 (the Act) in respect of three conditions. Pearlman J deleted condition 12, upheld condition 6 and varied condition 5. The appellants appealed in respect of conditions 5 and 6.

Condition 5, as varied by Pearlman J, imposed a monetary contribution of $40,000 as a condition of development consent in lieu of the provision of 2 car parking spaces under s94 of the Act. The reasonableness of condition 5 was tested against the contents of the respondent's s94AB Contributions Plan (notwithstanding that the Contributions Plan did not apply to this Development Application).

The appellant challenged the validity of condition 5 on 3 bases: (i) it was unreasonable in the Wednesbury sense, (ii) it did not fairly and reasonably relate to the subject development; and (iii) Pearlman J had made a mathematical error in calculating the s94 contribution.

Condition 6 required the dedication of a strip of land 6.1m wide at the rear of the subject premises to the respondent free of charge for road widening purposes. Both the appellants and the respondent obtained valuations of this land. The appellants' valuation was $55,000 while the respondent's valuer stated that the land had a nominal value of only $5000. Pearlman J, accepting the respondent's valuation, held that the condition was reasonable. On appeal from Pearlman J, the appellants submitted that her Honour erred in her approach to the reasonableness of condition 6, and had also failed to determine whether the condition satisfied the second of the Newbury tests.