Meriton Apartments Pty Ltd v Ku-Ring-Gai Council [2006] NSWLEC 776

Reported Decision : 152 LGERA 301

Land and Environment Court of New South Wales

CITATION : Meriton Apartments Pty Ltd v Ku-Ring-Gai Council [2006] NSWLEC 776

APPLICANT Meriton Apartments Pty Ltd PARTIES : RESPONDENT Ku-Ring-Gai Council

FILE NUMBER(S) : 10243 of 2006

CORAM: Talbot J

KEY ISSUES: Development Consent :- whether s94 contributions reasonable

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

Arkibuilt Pty Ltd v Ku-Ring-Gai Council [2006] NSWLEC 502; CASES CITED: Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1948] AC 223; Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262

DATES OF HEARING: 04/09/2006, 05/09/2006

DATE OF JUDGMENT: 12/08/2006

APPLICANT Mr C McEwen SC SOLICITORS Hunt & Hunt LEGAL REPRESENTATIVES: RESPONDENT Mr J A Ayling SC SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

8 December 2006

10243 of 2006 Meriton Apartments Pty Limited v Ku-Ring-Gai Council

JUDGMENT 1 Talbot J: A development application for construction of 7 residential flat buildings containing 148 apartments at 1580-1596 Pacific Highway Wahroonga was determined by the respondent council on 9 August 2005. The application was approved subject to conditions. Condition 90 prescribed payment of a contribution for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will or are likely to be required as a consequence of development in the area. The amount required is to be in accordance with the council's adopted s 94 Contributions Plan for Residential Development ("the CP") effective from 30 June 2004 calculated for each additional person as follows: 1. Community Facilities $1,117.76 2. Park Acquisition and Embellishment Works – Wahroonga $6,574.28 3. Sportsgrounds Works $1,318.32 4. Aquatic/Leisure Centres $27.82 5. Traffic and Transport $150.28 6. Section 94 Plan Administration $100.04 2 The condition dictates that to obtain the total contribution figure the following table of occupancy rates is to be used according to the different dwelling sizes: OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES Small dwelling (under 75sqm) 1.27 persons Medium dwelling (75-under 110sqm) 1.78 persons Large dwelling (110-under 150sqm) 2.56 persons Very Large dwelling (150sqm or more) 3.48 persons New Lot 3.48 persons SEPP (Seniors Living) Dwelling 1.3 persons 3 The s 94 contribution rates calculated by dwelling size for the suburb of Wahroonga are set out in table 3 of the CP as follows: No. Persons/ Dwelling Wahroonga Per Person $9,288.51 Small dwelling (under 75 sqm) 1.27 $11,796.40 Medium dwelling (75 – under 110 sqm) 1.78 $16,533.54 Large dwelling (110 – under 150 sqm) 2.56 $23,778.57 Very Large dwelling (150 sqm or more) and New Lot Subdivision 3.48 $32,324.00 SEPP (Seniors Living) Housing 1.3 $11,157.66