> Land and Environment Court of New South Wales CITATION : Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297 APPLICANT Arncliffe Development Pty Ltd PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 10286 of 2003 CORAM: Pain J KEY ISSUES: Question of Law :- application to modify condition of development consent in relation to s 94 contributions - whether appeal competent because all monies paid under condition - whether Applicant "dissatisfied" under s 96(6) of the Environmental Planning and Assessment Act 1979 - whether s 94(12) of the Environmental Planning and Assessment Act 1979 provides a separate appeal right Environmental Planning and Assessment Act 1979 s 94, s 96, s 97 LEGISLATION CITED: Land and Environment Court Act 1979 s 19(h) Land and Environment Court Rules 1996 Pt 17 r 1 Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395; Minaway v Rockdale City Council (Pearlman J, NSWLEC, 26 April 1996, unreported); CASES CITED: Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 237; Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176; Toadalla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Waters v Hurstville City Council (1991) 77 LGRA 11 DATES OF HEARING: 25/09/2003 DATE OF JUDGMENT: 09/26/2003 APPLICANT Mr B Walker SC with Mr R Beasley (barrister) SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Ms J Jagot (barrister) SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10286 of 2003 Pain J 26 September 2003 ARNCLIFFE DEVELOPMENT PTY LTD Applicant v ROCKDALE CITY COUNCIL Respondent Judgment Introduction 1. The Applicant has lodged Class 1 proceedings appealing against the deemed refusal of a s 96(1A) application to modify condition 16 of development consent number 1243/02 granted by Rockdale City Council. 2. Condition 16 required the payment of approximately $3.5 million in accordance with the current s 94 contribution plan. The application to modify the development consent seeks two modifications. Firstly, the modification of condition 16 to reduce the amount of s 94 contributions to approximately $1.8 million and secondly, a new condition requiring reimbursement by the Council to the land owner for land dedications and provision of public open space made by the land owner. 3. The Council has been given leave to raise the points of law contained in par 1 and 2 of its Further Amended Statement of Issues which raise a number of issues about the Applicant's Statement of Issues. I note firstly that issue 1 of the Applicant's Statement of Issues is as follows: The development results in the provision of material public benefits which should be accepted by the Respondent as partial or full satisfaction of the s. 94 contributions imposed by condition 16. 4. One of the two issues raised for preliminary determination by the Council was whether the Court has jurisdiction to determine issue 1 in the Applicant's Statement of Issues in that: it is a matter for the respondent alone to determine whether it is willing to accept the provision of any act, matter or thing as a "material public benefit" in accordance with s 94(5)(b) of the Environmental Planning and Assessment Act 1979. 5. Following the submissions of the Council on this issue the Applicant's counsel conceded these submissions were correct. Accordingly issue 1 in the Applicant's Statement of Issues is not now pressed. The Applicant's counsel also advised that it did not intend to rely on the new condition sought in the s 96(1A) modification application at any merit hearing in the matter. 6. I also note for completeness that at the outset of proceedings the Applicant advised it was not pressing issue 2 in its Statement of Issues. Accordingly, only issue 3 in the Applicant's Statement of Issues remains for consideration. 7. The second issue pressed by the Council is that the Class 1 appeal by the Applicant is incompetent because condition 16 has been satisfied. The relevant events are agreed by the parties as follows: the first payment of s 94 contributions required by condition 16 was paid by the Applicant on or about 8 January 2003 in the amount of approximately $160,000; a modification application under s 96 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) was made to the Council on or about 20 January 2003; a letter of 13 March 2003 raising concerns about condition 16 was sent by the Applicant's solicitors to the Council; on 14 March 2003 these Class 1 proceedings challenging the deemed refusal of the s 96 modification application were commenced; the final payment of s 94 contributions required by condition 16 was made by the Applicant on or about 24 March 2003; and a further letter dated 25 March 2003 expressing concern about condition 16 was sent by the Applicant to the Council. These arguments were raised by the Applicant to support its case relating to, firstly, s 96(6) and secondly, s 94(2). Section 96(6) of the EP&A Act 8. The Council argued that as condition 16 has been fully complied with, in that all the monies payable pursuant to it were paid on or before 24 March 2003, no application can be approved to modify a condition which has been fully discharged. Reliance was placed on the decision of Hardie J in Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395 and obiter comments by Bannon J in Waters v Hurstville City Council (1991) 77 LGRA 11. I note that in Bryson the execution of a deed required as a condition of development consent was held to mean that the Applicant was not dissatisfied in the legal sense when the deed was later challenged and could not appeal. 9. The Applicant argued that the fact money had been paid pursuant to condition 16 was not fatal to their application. The decision of Pearlman J in Minaway v Rockdale City Council (Pearlman J, NSWLEC, 26 April 1996, unreported) and to a lesser extent, Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176 were relied on in support of that submission. Finding on s 96(6) of the EP&A Act 10. I note the Class 1 appeal by the Applicant is made pursuant to s 96(6) of the EP&A Act which provides that: an Applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application [for modification] within 40 days after the application is made may appeal to the Court and the Court may determine the appeal. 11. I do not accept the Council's arguments that the claim pursuant to s 96(6) is incompetent because all of the money paid pursuant to condition 16 has been paid by the Applicant. The context of the decision in Bryson is different to that before me and I do not consider I should apply it here in preference to the reasoning of Pearlman J in Minaway . I agree with Pearlman J that the requirements for dissatisfaction in s 96(6) means that legal dissatisfaction only is required. In Minaway , Pearlman J considered s 102(5) of the EP&A Act which is a predecessor, in identical terms, to s 96(6). Her Honour found that the two conditions precedent under s 102(5) were satisfied in that there was an Applicant who had applied for a modification of development consent and was dissatisfied with the determination of the application because the Council refused the application. Her Honour held the appeal was competent. Separately to this reasoning her Honour did consider that there was another reason to conclude that the appeal was competent, which related to the terms of the conditions of development consent in question in that case. In that case the obligation to pay was ongoing and contemplated an adjustment of amounts to be paid pursuant to s 94 over time. The condition in this case is different in that all s 94 contributions payments required under condition 16 have been made. 12. As in Minaway , in this case there is an Applicant who is dissatisfied with the determination of the application by the Council. That dissatisfaction has been made plain to the Council in correspondence before the final payment was made on 24 March 2003 although the necessity for such protest to satisfy s 96(6) is debatable. I do not think that because the amount in condition 16 has been paid, the Applicant is prevented from mounting this appeal. I note that the facts in Minaway were different to those before me in that the condition in question allowed for ongoing payments in Minaway so that not all payments had been completely made. I do not consider however that this is a material factual difference. In other words, the Applicant is successful in its arguments in relation to s 96(6). Section 94(12) of the EP&A Act 13. There was another issue raised by the Applicant which I will deal with for completeness and that is in relation to s 94(12) of the EP&A Act. As an alternative argument, the Applicant argued that s 94(12) provides a separate appeal right which is enabled by s 19(h) of the Land and Environment Court Act 1979, so that its appeal could also be competent on this basis. Section 94(12) states: A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan. 14. The Applicant agreed that it would be necessary for it to commence separate Class 3 proceedings in reliance on s 94(12), which were arguably outside the 60 days allowed by Pt 17 r 1 of the Land and Environment Court Rules 1996. If the argument on this point is successful, the Applicant stated that it would seek leave to file those proceedings out of time. Finding on s 94(12) of the EP&A Act 15. I do not accept the Applicant's submissions that there is a separate appeal right founded in s 94(12) of the EP&A Act. Relevant appeal provisions are found in s 96(6) and s 97 of the EP&A Act. Both these sections provide an Applicant who is dissatisfied with the determination with a right to appeal. I accept the submissions of the Council that s 94(12) is directed to the need to ensure that the Court is not bound by the contributions plan in appeals under s 96(6) and s 97. The Court would otherwise be bound in such appeals in the same way as the Council by s 94(11) which provides that a condition may only be imposed if it is of a kind allowed by, and is determined in accordance with, a contributions plan. 16. I note that my finding on s 96(6) means that an Applicant may choose to comply with development consent conditions and then seek their modification, rather than pursuing a s 97 appeal which suspends the development consent while the appeal is on foot so that it cannot be acted upon. Such an approach may well give rise to discretionary considerations in relation to taking the benefit of the development consent while seeking to avoid the burden as has been referred to in a number of cases such as Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 237, Toadalla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 and also Security Storage Pty Limited , which the Applicant relied on. That does not mean however that this Applicant should not be able to maintain these Class 1 proceedings. Accordingly, the Council is unsuccessful in the second issue that it argued. The Applicant's Class 1 proceedings as now modified, so that only issue 3 of the Applicant's Statement of Issues remains, are competent and I so find. COLE: Only issue 3 of the-- HER HONOUR: Applicant's Statement of Issues, that is my understanding of where the pleadings are. COLE: Yes that's correct, the Council has a Statement of Issues as well. HER HONOUR: I have not made any comments on the Council's Statement of Issues, I am only commenting on the Applicant's Statement of Issues and I am noting that only issue 3 remains but that the appeal is competent. Orders 17. The Court makes the following orders: 1. The exhibits may be returned. 2. Each party to pay its own costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.