Land and Environment Court of New South Wales CITATION : Falcomata v Ku-ring-gai Council (No 3) [2005] NSWLEC 541 APPLICANT R Falcomata PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10190 of 2005 CORAM: Moore C Costs - Development Application :- Pre-existing subdivision s 94 contribution for further subdivision KEY ISSUES: . Environmental Planning and Assessment Act 1979 s94(b)(3) LEGISLATION CITED: Land and Environment Court Act 1979 s69(8) Rose Consulting Group v Baulkham Hills Shire Council [2003] 58 NSWLR 159; 129 LGERA 165; CASES CITED: . DATES OF HEARING: 8 September 2005 EX TEMPORE JUDGMENT DATE : 09/08/2005 APPLICANT Mr S. Kondilios, solicitor Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P. Marincowitz, solicitor Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 8 September 2005 05/10190 R Falcomata v Ku-ring-gai Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Contribution pursuant to s 94 of the Environmental Planning and Assessment Act 1979 1 The matter which I am required to determine this morning is the outstanding question of the appropriateness of the contribution proposed by Ku-ring-gai Council (the council) pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (the Act) with respect to Lot 2. 2 Mr Kondilios, solicitor on behalf of the applicant, puts the propositions that this allotment has been in separate legal existence since 1962; rates have been paid during the totality of that time; and these rates have, in effect, compensated the council in advance for the development now proposed. He submits that the mere existence of Lot 2 has not imposed any demand on the services that would otherwise be provided pursuant to identified needs in the s 94 plan and contributions in satisfaction thereof. 3 It is clear from the provisions of s 94(b)(3) of the Act that I have a broad discretion to consider whether or not, in the particular circumstances of this case, the contribution that might otherwise arise from the s 94 contributions plan, is unreasonable and ought be disallowed in its entirety (that being the proposition put by Mr Kondilios) or amended in some other fashion. 4 The Court of Appeal has confirmed, in Rose Consulting Group v Baulkham Hills Shire Council [2003] 58 NSWLR 159; 129 LGERA 165, that there is a broad discretion of that nature. As a consequence, in these proceedings, I am not fettered as to how I could exercise that discretion if I were to be satisfied that the totality of a contribution for existing Lot 2 should be departed from. 5 The matter was also heard yesterday. During the course of that hearing, I indicated to Mr Kondilios that, although I was satisfied that the council rated Lots 2 and 3 in an aggregated form (that being evident from the 2005/2006 rates and charges notice that was in evidence), I could not be satisfied whether the rateable value recorded thereupon for three of the four elements charged did or did not reflect any concession for the fact that that rate notice applied to the two allotments. Those elements were the residential rate; special levy for the environment; and special level for infrastructure – being the ad valorem rateable elements on a rateable value of $995,0000. 6 I indicated to Mr Kondilios that, before I was prepared to consider that he had even reached an appropriate starting point for my consideration of whether a discount should be applied, I needed to know whether the $995,000 rateable value set out on the rates and charges notice reflected a precise aggregation of the separate land values for each of the two existing lots. 7 If that were the case, I would have been satisfied that I should then proceed to an inquiry as to whether or not all (or some) of the s 94 contribution now proposed should be remitted on the basis on the past full-value rates for Lot 2 having been paid. 8 Having indicated that I was concerned that I was not in a position to even consider his client's submissions in the absence of such information, I granted an adjournment to permit further information to be obtained. 9 I have been provided, today, with a copy of a Department of Lands valuation notice for rating purposes which confirms $995,000 as the freehold valuation of the two lots and, therefore, relevantly as the rateable value of the land. However, the notice does so quite clearly, from the description of the land, on an aggregated basis of Lots 2 and 3. 10 I indicated this morning that I was prepared to consider a further application for adjournment if Mr Kondilios wished to seek instructions about obtaining, for example, a land tax valuation for the totality of the two lots. On my understanding, imperfect though it is of the position which would apply to Lot 2, it would have been taxed as it is a vacant taxable lot and not part of what would have been a principal place of residence (which was Lot 3) and thus would have attracted a land tax valuation and assessment. 11 I indicated that I was only prepared to consider such an application on the basis that an undertaking would given on behalf of his client to pay at least the costs of the council of one of the two days of this element of the proceedings. 12 Mr Kondilios has indicated to me that his client is content for me to deal with the issue on the basis of the material that is presently before me and that no further adjournment is sought. 13 As a consequence, I have concluded that there is no basis upon which, on the evidence presently before me, I could consider departing applying strictly the provisions of the s 94 contributions plan as reflected in proposed condition 79 of the conditions of consent for Lot 2. 14 As a necessary consequence of reaching the conclusion that Mr Kondilios has not reached the starting barrier in that regard, I do not need to give any consideration to the submissions made by Mr Marincowitz, solicitor on behalf of the council, that there has in effect been some utilisation of portions of Lot 2, nor do I need to consider whether, had Mr Kondilios' application reached the starting gate, the discounting should be in its entirety or at some lesser amount. 15 I therefore impose cl 79 of the conditions of consent unvaried for these reasons. Costs 16 Further to the decision which I have just given with respect to a proposed variation by the applicant to the s 94 contribution set out in condition 79 of the conditions of consent, an application has now been made by Mr Marincowitz for the council's costs both yesterday and today. The costs of each of those days is put at $435. 17 I am satisfied, with respect to the hearing yesterday, that that hearing was a normal and continuing part of the Class 1 proceedings which I had earlier dealt with and was continuing to deal with to the finality of a consent for two dwellings on Lot 2. 18 I am, therefore, not prepared to seek the consent of the Acting Chief Judge pursuant to s 69(8) of the Land and Environment Court Act 1979 for an order in favour of the council for its costs of yesterday. 19 A different position arises with respect to today's costs. 20 Yesterday, I permitted an adjournment on the basis of the inadequacy of the information provided on behalf of the applicant. As I outlined earlier, that inadequacy has been sustained today and, as Mr Kondilios colloquially puts it, the applicant has elected to pull the pin on the proceedings rather than to continue further. 21 I am satisfied under all the circumstances, it would be fair and reasonable for me to seek the concurrence of the Acting Chief Judge pursuant to s 69(8) for an order for costs in favour of the council for $435 for the costs of today's proceedings. Tim Moore Commissioner of the Court 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.