Devenish-Meares v Ku-ring-gai Council (No 2) [2010] NSWLEC 1219

Land and Environment Court of New South Wales

CITATION : Devenish-Meares v Ku-ring-gai Council (No 2) [2010] NSWLEC 1219

APPLICANTS Mrs S Devenish-Meares PARTIES : Mr S Devenish-Meares

RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10198; 10199; 10200; 10203 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- whether Court bound by direction of Minister under s 94E for s 94 contribution - whether credit should be given for existing dwelling

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979

CASES CITED: Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197

DATES OF HEARING: 16/06/2010, 04/08/2010

DATE OF JUDGMENT: 13 August 2010

APPLICANT Mr J Hones, solicitor SOLICITORS Hones La Hood LEGAL REPRESENTATIVES:

RESPONDENT Mr A Hudson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

13 August 2010

10198 - 10200 of 2010 10203 of 2010

Devenish-Meares v Ku-ring-gai Council (No 2)

JUDGMENT 1 COMMISSIONER: On 16 June 2010, I gave a judgment in matter 10198 of 2010 indicating that development application 0580/09 for the demolition of an existing dwelling and the construction of two dwellings (dwellings 1 and 2) could be approved subject to the preparation of certain documentation specified in the judgment. This matter related to stage 1 of a four-stage development. I directed the parties to prepare conditions of consent and set aside a date for a further hearing should there be any disagreement between the parties on any of the conditions. 2 As a consequence of that determination, the parties reached agreement on the other matters and thus the remaining stages of the proposed development. To that end, the parties prepared conditions of consent for the four matters. 3 A further hearing was held on 3 August 2010 at which the parties made submissions on the one condition of consent on which they could not agree. That condition relates to the s 94 contribution that should be payable by the applicants. In matter 10198 of 2010, the condition in dispute is number 31. In matter 10200 of 2010 (DA0583/09)(stage 3), the relevant clause is number 24. This matter relates to the construction of dwelling 3 as a detached duel occupancy with dwelling 2. 4 The s 94 contribution determined by Ku-ring-gai Council (the Council) for dwellings 1 and 2 is $61,082.21 and for dwelling 3, $44,610.00. These figures were calculated in accordance with the Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2) for the range of services detailed in the table included in the conditions of consent. 5 On 4th June 2010, the Minister for Planning issued a direction under s 94E of the Environmental Planning and Assessment Act 1979 (the EPA Act). The requirements of the direction are as follows: (1) A council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution exceeding $20,000 for each dwelling authorised by the consent or in the case of development consent that authorises the subdivision of land into residential lots, exceeding $20,000 for each lot authorised by the consent.