John Mariano v Mosman Council [2006] NSWLEC 271

Land and Environment Court of New South Wales

CITATION : John Mariano v Mosman Council [2006] NSWLEC 271 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: PARTIES : John Mariano RESPONDENT: Mosman Council

FILE NUMBER(S) : 10088 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Consent :- Whether the s 94 contribution condition is reasonable, appropriate and for a planning purpose.

LEGISLATION CITED: Mosman Section 94 Contributions Plan -Open Space, (S94 plan) Environmental Planning and Assessment Act 1979, ss 96(6) and 79C

CASES CITED: Andrew Burges Architecture v Mosman Council [2006] NSWLEC 187

DATES OF HEARING: 18/05/2006

EX TEMPORE JUDGMENT DATE : 05/18/2006

APPLICANT: Mr J Mariano, LIP SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick, Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

18 May 2006

10088 of 2006 - Mr John Mariano v Mosman Council

JUDGMENT Introduction 1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of Mosman Council (the council) to impose as a condition of consent, a requirement to pay a s 94 contribution in respect of a development application to alter and add to a dwelling house at Lot 28, DP 6294, being No 8 Morella Road, Mosman. 2 This appeal is against Condition 10 of the consent, which states: 10. Pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 , a monetary contribution of $2,936.56 towards the acquisition and embellishment of public open space shall be paid to Council. This condition is imposed under Mosman Municipal Council's Section 94 Contributions Plan. The Plan may be inspected at Council's offices within the Civic Centre, Mosman Square, Mosman. Note: Contribution rates will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978 4111 prior to payment to confirm current figures. 3 The applicant, under duress, paid the monetary contribution of $2,936.56 to the council on 2 March 2005. 4 I visited the land in company with the parties on the morning of the s 34 Conference. 5 I have concluded that the monetary contribution sought by the council is reasonable and appropriate. Mosman Section 94 Contributions Plan -Open Space, (S94 plan) 6 Section 1 of the S94 plan outlines its purpose to enable the payment of a reasonable contribution for the acquisition and embellishment of land for the purpose of open space in Mosman. The acquisition and embellishment is achieved by levying S94 monetary contributions on approved residential developments. 7 Section 2 of the S94 plan with the Court's emphasis added, provides, This plan applies to all land within the Municipality of Mosman. It applies in all zones but only to development, which involves an intensification of residential development. This includes the following types of development: · Subdivision, which involves the creation of a new lot. · Alterations and additions to a dwelling house …which involve an increase in the number of bedrooms (or rooms likely to be used as bedrooms). · The construction of new dwelling houses or semi-detached dwellings, which involve an increase in the number of bedrooms over which previously, existed on site. · New Multiple dwellings. 8 Section 4 of the S94 plan identifies the nexus between creating additional residential accommodation (including additional bedrooms in existing dwellings) and the increase in demand for open space. 9 This section also provides for the operation of the contribution and the mechanics of calculating the increase in population using census data on occupancy rates for dwelling houses based upon the number of bedrooms they contain. The increase from a 3-bedroom dwelling house with an occupancy rate 2.65 to a 4-bedroom dwelling house or occupancy rate of 3.36 is 0.71. 10 Section 7 of the S94 plan provides the contribution rate per person and outlines that the rate is indexed annually. The rate at the time of the development application being determined was $4,136 per person. Therefore the amount payable for one extra bedroom is $4,136 x 0.71 = $2,936.56. 11 Section 8 of the S94 plan provides for administration and payment is required prior to the release of the Construction Certificate. Application to modify a consent and the council's decision 12 On 21 March 2005 the applicant lodged, under s 96(1) of the Environmental Planning and Assessment Act 1979, an application to modify a consent and to delete Condition 10. 13 On 15 April 2005 the council refused the modification application for reason that: The first floor study approved under 8.2004.115.1 constitutes a room capable of being used as a bedroom, and in the spirit of the Mosman Section 94 Contributions Plan – Open Space, creates accommodation for increased resident population, which necessitates a monetary contribution of $2,936.56. The S34 conference 14 The appeal was filed on 7 February 2006. 15 At the s 34 conference the court heard evidence on behalf of the respondent council from Mr P Wells, Team Leader in the Development Services Branch of Mosman Council. 16 Mr J Mariano, applicant in person, gave evidence. The issues 17 On 3 March 2006 the council filed a statement of issues. Section 94 Contribution Plan – Open Space 1. Whether the proposal attracts a section 94 contribution by virtue of proposing an additional room capable of being used as a bedroom. 2. Whether the condition imposing this section 94 contribution can be deleted, noting the contribution has been paid and the condition satisfied. 18 The salient issues is whether the s 94 contribution condition is reasonable, appropriate and for a planning purpose. The evidence and findings The council's claim for the s94 contribution 19 The council claims that "…rooms likely to be used as bedrooms," are capable of accommodating an increased population, and thus likely to increase the demand for open space and recreational facilities in Mosman. 20 The council claims that the existing ground floor plan [Note: Cape Cod plans, page 3 of 6, dated 21 March 2003) shows three bedrooms or rooms likely to be used as a bedroom consistent with the DA form. The ground floor study where the stair is proposed was not considered a bedroom. The council claims that at the ground floor level the proposed Bedrooms 2 and 3 are being retained as bedrooms and there are no other rooms on the ground floor, capable of use as a bedroom. 21 The council claims that the retreat serving the upstairs Bedroom 1 is considered not capable of being used as a bedroom because access to this room is through Bedroom 1. However, the council claims that the first floor study is capable of being used as a bedroom by virtue of its separation by a door from the stairs, its dimensions (2.7 x 3.18m) and good access to light and ventilation. 22 The council claims that it has consistently applied this test since 12 September 2003 and has applied this test equally to existing and proposed situations. In the present case, the council claims an increase by one (1), in the number of bedrooms. 23 Mr Wells carefully assessed the s 94 contribution and concluded that if a room denoted on the first floor plans as a study, is 'capable' of being used as a bedroom then it is 'likely' (if not immediately then at some time in the future), to be used as such. 24 He stated that, Where rooms such as studies have the potential for use as a bedroom, they should be seen as such. Such rooms may be used as a study to suit the convenience of a particular occupier at a particular point in time but it is likely that the room will, during the dwelling's lifetime, be used as a bedroom. Accepting plans at the face value nomination of room use fails to account for future users and opens the system to abuse whereby applicants may apply for a range of rooms such as studies, libraries, retreat rooms, gymnasiums, sewing rooms etc merely to avoid paying a contribution. The existence of such rooms in a dwelling inevitably enhances the ability of that dwelling to accommodate an increased number of occupants. A recent example of this is No 212 Raglan Street, Mosman. This dwelling was approved as a dwelling house with four bedrooms and a study. It was recently advertised for sale in the Mosman Daily (on 23 February 2006) as comprising "…4/5 bedrooms." In my experience, this is commonplace in Mosman My understanding is that the present occupiers are using only three of the bedrooms as such. This is, however, purely a matter of convenience to them and does not mean that the room presently described as a study is not likely to be used as a bedroom in the future. I believe that it is. I would also point out that the Contributions Plan has an occupancy rate for three bedroom dwelling houses of 2.65 persons and for four bedroom houses of 3.36 persons. My understanding is that- there are four occupants in the subject dwelling. The applicant's claim 25 The applicant claims that the council has interpreted the S94 plan incorrectly in considering the first floor study as a room 'capable of being used as a bedroom' rather than 'likely to be used as a bedroom' as required under the S94 plan. As a result the applicant claims that this small study at the top of the stairs will not, nor is likely to be, used as a bedroom by him or his family. 26 The applicant also claims that as Condition 10 was not imposed properly in accordance with the S94 plan and as it is unreasonable, it should be deleted. Findings 27 The Senior Commissioner, Dr J Roseth, in Andrew Burges Architecture v Mosman Council [2006] NSWLEC 187, heard on 10 April 2006, accepted that there were five bedrooms in the proposed additions to a dwelling and he applied a credit of four for the existing dwelling. He levied a contribution of $3,127.98 for the additional bedroom under the S94 plan. 28 I have concluded that although Mr Mariano might not have the intention in the short or medium term to use the first floor study at the top of the stairs, of No 8 Morella Road, as a bedroom, in the long term it could still be likely to be used as a bedroom. I am satisfied that even if Mr Mariano is not likely to use the first floor study as a bedroom, his heirs or successors in title might be likely to use it as such. The consent runs with the land and from a planning viewpoint a long-term perspective must be applied to the meaning of the term 'likely'. Consequently, I consider the council has applied the S94 plan in a reasonable and appropriate manner and for a planning purpose and I find that the modification application must fail. 29 I agree with Mr Mariano that the wording of the S94 plan could be improved by including the words 'capable or' after the word 'rooms' in Section 2. Mr Wells' frequent use of the word 'capable' rather than likely is unfortunate given the present wording of the S94 plan. The planning report by Mr Wells was written by a town planner and a fine-toothed comb should not be applied to its meaning. 30 For the above reasons, the appeal is dismissed. Orders 31 My orders are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.