Warringah Properties Pty Ltd v Warringah Council [2] [2004] NSWLEC 443

Land and Environment Court of New South Wales

CITATION : Warringah Properties Pty Ltd v Warringah Council [2] [2004] NSWLEC 443 APPLICANT Warringah Properties Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10137[2] of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Annexure A conditions attached to consent of 30/06/2004 LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/06/2004 DATE OF JUDGMENT: 08/13/2004

APPLICANT Mr J Doyle, solicitor

LEGAL REPRESENTATIVES: RESPONDENT Mr J Johnson, barrister SOLICITORS P J Donellan & Company

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

13 August 2004

10137[2] of 2004 Warringah Properties Pty Ltd v Warringah Council [2]

JUDGMENT

Introduction 1 At the conclusion of the judgment handed down on this matter on 30 June 2004, the Court gave leave to the parties to give written submissions on draft Condition 69 in regard to a dispute over the amount of contribution required by the council's s 94 Plan. The parties have provided a copy of the s 94 Plan and their written submissions and included material in regard to other disputed draft conditions more or less in confirmation of oral submissions given at the hearing on-site dated 28 June 2004.

2 The following is the Court's finding on the draft conditions:

Condition 69 3 The s 94 Plan calculates contributions on a per person basis for open space acquisition and/or enhancement and community facility. But roads and traffic improvements are calculated on a per dwelling basis. Whilst there is probably a relationship between the two that creates a total contribution rate it is not apparent from a reading of the s 94 Plan. So without other information the Court is left with accepting both parties agreement that the table that applies is on p 9 for Contribution Rates of Medium Density Development outside a Medium Density area. The latter description suits the proposal and the table has a category for "Older Persons" developments and gives $1,536 per dwelling. 4 The purpose of the Plan is best described on p 14 as: To provide increased or expanded facilities to meet the needs of incoming population. The monies levied are required to increase recreational, social, safety and/or commercial opportunities for the incoming population or business that would otherwise not exist". 5 It states on p 13 that: Section 94 permits council to require developers to provide or assist in providing new facilities required as a consequence of new development" and The plan does not apply to re-development where the population accommodated on the site has not increased". 6 The respondent says: The monetary contribution is calculated by expressing as a proportion, the projected contribution by older persons to the projected increase in population in "Medium Density outside Medium Density" area as part of the general increase of 5,321. The proposed cost of the facility, to be borne by that proportion of the increase in population is the basis for the calculation of the contribution as the rate of 1.9 persons per dwelling. Given that the present notional occupancy of 2.87 persons per dwelling is already factored into the existing population of 125,073, if there were to be a deduction from the contribution to the population this development will make to the projected increase of 5,321, the applicant would be "double dipping" in relation to the obligation to make contributions. 7 This concept that the existing population is already "factored in" the s 94 Plan in a way that eliminates credit for existing houses is not borne out by an examination of the tables of calculations in Appendix E. The tables only refer to the increased population or increased number of car trips per dwelling due to additional population. There is a subtraction from the cost of facilities of amounts previously collected by council under s 94 prior to the Warringah Section 94 Plan 2001. But those amounts were also presumably for increased demand due to earlier population increases.