Land and Environment Court of New South Wales CITATION : BIG COUNTRY DEVELOPMENTS PTY LIMITED (ACN 000 235 923) v PENRITH CITY COUNCIL [1998] NSWLEC 2 (30 January 1998) [1998] NSWLEC 30 PARTIES : BIG COUNTRY DEVELOPMENTS PTY LIMITED (ACN 000 235 923) v PENRITH CITY COUNCIL FILE NUMBER(S) : 10377 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss91, 94, 97 Local Government Act 1919 The Commonwealth v Verwayen (1990) 170 CLR 394; Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395 ; Waters v Hurstville City Council (1991) 77 LGRA 10 ; CASES CITED: Rein Warry & Co v Wollondilly Council ; Parramatta City Council v Travenol Laboratories Pty Ltd ; Fitch v Shoalhaven City Council (1987) 67 LGRA 165 ; in Grampian Regional Council v City of Aberdeen District Council (1984) 47 P & CR 633 DATES OF HEARING: 21 & 24 November 1997 DATE OF JUDGMENT: 02/27/1998 Mr G Newport, Barrister LEGAL REPRESENTATIVES: Mr J Webster, Barrister JUDGMENT: 23 A. Introduction This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council's determination dated 31 December 1996 granting development consent subject to conditions (the 1996 development consent) to the Applicant's development application to carry out stages 2 to 7 of its proposed development of Lindisfarne High School on land known as Lot 8 Deposited Plan 740104 fronting Mahers Lane Terranora (the development site), situate some 6 kilometres south-west of South Tweed Heads and 700 metres north of the intersection of Mahers Lane with Terranora Road, a distributor road with an average daily traffic volume of some 6,000 vehicles. The appeal is limited to two of the conditions so imposed, namely conditions14 and 17 which are in the following terms: " 14. Prior to occupation of Stage 2 kerb and gutter is to be constructed for the entire frontage of the property on both sides of Mahers Lane in accordance with Council's Plan No. A1-36. If a Council design for this work is not available the applicant is to prepare a design and submit it to the Director of Engineering Services for approval prior to construction commencing. 17. Upgrade the Mahers Lane and Terranora Road intersection to provide a channelised intersection including relocation of services and the provision of lighting to North Power requirements in accordance with Council's Plan No. A1-1133. This work is to be completed prior to the occupation of Stage 2 and to the satisfaction of the Director of Engineering Services." It is to be noted that both conditions are expressed to require completion of the respective works namely ((i) kerb and guttering along Mahers Lane and (ii) channelised intersection at the Terranora Road and Mahers Lane intersection) "prior to the occupation of Stage 2". At the time of the hearing of the appeal Stage 2 (which comprises 4 general purpose classrooms) had been built but had not been occupied. B. The Planning History of the School Development Stage 1 of the School Building Project which comprised the establishment of the School with an initial student intake of 200 had been completed and its facilities were being used and occupied by the School which had commenced its existence in January 1996. Stage 1 had been the subject of a separate development consent granted by the Council on 12 December 1994 (the original development consent). That consent had imposed a number of conditions, which included conditions (numbered 10 and 19) virtually identical to the conditions the subject of the present appeal. In particular Condition 10 provided as follows: "10. The Mahers Lane/Terranora Road intersection being constructed to an Aust Roads Type C intersection. Detailed plans are to be submitted to [be] approved by the Director Engineering Services. All work is to be at the developer's expense and is to be completed prior to occupation of the development." On 22 September 1995 the Applicant made a modification application pursuant to s102 of the EP&A Act in respect of six of the conditions of the original development consent, including conditions 10 and 19. All six conditions required the Applicant to undertake infrastructure construction works. The modification sought a deferment of these conditions until stage 3 of the School Development (phased for 1997). In respect of condition 10 the Applicant's supporting submission was to the effect that the cost of the intersection works should be contributed to by all developments utilising Mahers Lane (and not be confined to the School) and that the works should be included in the Council's s94 Contribution Plan for the Lower Tweed Transport Study (the s94 Contribution Plan) and that any funds provided by the School for such works should be offset against, and/or reimbursed under, the School's contribution pursuant to the s94 Contribution Plan. On 3 November 1995 the Council approved the Applicant's modification application and issued an amended development consent for Stage 1. However condition 10 was not amended and in this respect the Applicant was advised as follows: "….subsequent to the preparation of a detailed design drawing for the Mahers Lane/Terranora Road intersection, Council is prepared to enter into negotiations for staging of the work, subject to adequate standards of public safety being maintained. However, no further development consent for this site will be issued until the full scope of the type "C" intersection work has been completed." Following the issue of the modified development consent representatives of the School and its advisers met with the servants of the Council to discuss the works (and their staging) required for the Type C intersection at Terranora Road and Mahers Lane. What occurred at that meeting is principally evidenced by the letter dated 27 December 1995 from the Applicant's Town Planning Consultant and the Council's letter in response dated 29 December 1995 . As will appear later in these reasons the Council now asserts that these letters evidence an agreement between the parties having the effect of rendering legally incompetent the Applicant's appeal against condition 17 of the 1996 development consent. It appears that the catalyst for the meeting was the desire on the Applicant's part to open the School from the beginning of the 1996 School year coupled with its realisation that the construction works required by Condition 10 could not be physically undertaken in the short time available. Rather than execute those intersection works the Applicant's Traffic Consultant had proposed a lesser design intersection treatment (a modified Type C intersection without a constructed median) which would be constructed before the commencement of the 1996 School year and that thereafter the Council's requirement for intersection works to the standard stipulated in condition 10 of the original development consent, would be reinstated for "the latter stages of the school's development". The Council's letter in reply accepting the Applicant's submissions, had stated the following: "The construction of a large school in a poorly serviced location has been a major catalyst in creating the need for the intersection upgrade. To ensure that this intersection meets accepted community standards with the primary objective of safety for motorists and pedestrians, it is proposed to implement a staged upgrading of the intersection as detailed below: 1. Construction of the intersection design as proposed by Martin Findlater is approved and should proceed to construction prior to the opening of the school in 1996. This is deemed to fulfil the existing consent condition in relation to the intersection. 2. Council will proceed with acquisition of the North Power property immediately. 3. Council will initiate discussions with the community hall committee to establish their requirements and to develop satisfactory traffic management in the vicinity of the hall. 4. Review the functionality of the constructed intersection post February 1996. 5. Condition further stages of development consents issued for the school to upgrade the intersection to the required form." Six months later the Applicant lodged its development application for Stages 2 to 7 of the School Development Project which contemplated, on completion in 2002, a total student intake of 564. The supporting documents ((i) Statement of Environmental Effects and (ii) Traffic Impact Report) made the following submissions in respect of the Terranora Road/Mahers Lane intersection: "(i) The following catchments all contribute to the traffic demands placed on Mahers Lane/Terranora Road intersection: - Mahers Lane - Eaglemont Drive - Terranora Village (in part) - Future Terranora Rezoning - Lindisfarne School (ii) A Type C intersection is required, irrespective of Lindisfarne School proceeding. (iii) A painted Type C intersection has been provided with a sheltered auxiliary right turn lane as a condition of Stage 1 of the development. (iv) Intersection upgrading works should be funded proportionally by all contributing, developing catchments. (v) The intersection works being on a distributor road and on an existing intersection should be the subject of the Lower Tweed Transportation Study Section 94 Plan. (vi) The Lower Tweed Transportation Study Section 94 Contribution by Lindisfarne School for Stages 2 to 7 should be credited proportionally the cost of providing the painted Type C intersection because the Type C intersection and urban design is required irrespective of the school proceeding. (vii) Funding can be resourced from: - Contributions by all future potential developments within the contributing catchments. - Lower Tweed Transportation Study Section 94 Contributions." However the Council in determining the development application for Stages 2 to 7 did not accept the Applicant's contention and in granting development consent reimposed the requirement for the upgraded intersection works by imposing condition 17 (the terms of which I have earlier recited). In the negotiations between the parties during the processing of the Stages 2 to 7 development application (prior to the Council's determination) the Applicant had advanced the contentions that (i) the Council's required upgrading of the intersection be phased with later stages of the Schools' development planned for 1997, 1998 and 1999 and (ii) the total costs of the required upgrading as funded by the Applicant be credited in favour of the Applicant by being set off against the monetary contributions exacted in respect of the Stages 2 to 7 development under the Council's s94 Contributions Plan, in respect of which the Council had, in granting the 1996 development consent, imposed condition 28 requiring payment in the sum of $146,088. Both those contentions were rejected by the Council in determining to grant development consent to the Stages 2 to 7 development application subject to conditions. In respect of the suggested set off the Council's s94 Contributions Plan did not apply to intersectional works (a fact communicated to the Applicant in the letter dated 24 November 1995 from Mr Morgan, the Council's Acting Manager of Planning and Design). In large measure the hearing of the present appeal has involved a re-agitation of the same issue as has been extensively debated between the parties in 1995 (when condition 10 of the original development consent was, in effect, modified) and again in 1996 when development consent was granted to Stages 2 to 7 of the School's Development Project. However another reason for reciting the relevant planning history is because the Council's case (in addition to pressing the planning merits of the disputed condition) pleaded a possible estoppel against the Applicant denying that it is bound, be agreement with the Council, to carry out the required intersectional works. In respect of the suggested estoppel the Council particularised (i) what it asserts to be an agreement made between the parties between 12 December 1994 and 29 December 1995 and (ii) things done by the Council in fulfilling its obligations under the alleged agreement ie preparing the design plans for the intersectional works and acquiring additional land required for such works. I proceed at once to determine the two legal contentions raised by the Council against the legal competency of the Applicant's appeal. C. Is the Applicant estopped from denying that it has agreed to carry out the required upgraded intersection works? The statutory right of appeal conferred by s97 of the EP&A Act creates an obvious difficulty for the Council's submissions that the Applicant is relevantly estopped. Moreover even if an agreement exists as alleged by the Council (and this is denied by the Applicant) its existence would not render the Applicant's appeal incompetent. Nor would it necessarily prove decisive in the Court's adjudication on the merits of the appeal. In short the existence of any such agreement could not legally eclipse or avoid the consequences of (i) the statutory entitlement vested in the Applicant to appeal against the Council's decision and (ii) the Court's statutory duty to adjudicate the appeal. However since it may be legally possible for the Applicant to waive its statutory right of appeal (The Commonwealth v Verwayen (1990) 170 CLR 394) I proceed to examine the evidence from which the Council invites me to infer a relevant agreement by the Applicant that it will undertake the required upgraded intersectional works, without opposing or challenging the imposition of any condition imposing that obligation. The most relevant material is the Applicant's Town Planning Consultant's letter to the Council dated 27 December 1995 and the Council's letter dated 29 December 1995. The former's letter contains the following statements: "…we also propose that the functionality of the intersection be reviewed with each subsequent stage of school construction and when determined appropriate, that Council's intersection design be constructed. Accordingly it is proposed that the construction of Council's intersection design be stipulated as a condition of development consent for the latter stages of the school site development. As requested, and subject to your review, we seek your approval to construct the Type C intersection as designed by MFA until the construction of Council's intersection design is determined necessary as part of the staged development of the school… …" The relevant portions of the Council's letter in response have been earlier recited. Can it be inferred on the basis of these communications between the parties that the Applicant had agreed to waive any objection to, and hence to waive the statutory right of appeal in respect of, the imposition of a condition requiring the upgraded intersection works in respect of any development consent granted in respect of Stages 2 to 7 of the School's Development Project (including the 1996 development consent)? In my opinion it cannot be so concluded. The relevant communications arose shortly after the Council had determined the Applicant's modification application in respect of conditions imposed on the original development consent for Stage 1. Significantly that determination had left intact, (but subject to negotiations in respect of staging the required works) condition 10 imposing the obligation to undertake the intersectional works. However in further negotiations between the parties that condition was deemed by the Council to be satisfied by the Applicant's proposal to carry out works to a lesser standard than that required by the Council's condition on the agreed basis (i) that the functionality of such lesser standard works would be reviewed and (ii) that the Council's condition for the upgraded intersectional works be re-imposed on the grant of development consent for subsequent stages of the School Development Project. However I do not think that I can reasonably infer from this material any agreement on the part of the Applicant to waive its statutory right of appeal against the reimposition of such a condition on the grant of development consent for subsequent stages of the School's Development Project. Nor can I reasonably infer any agreement on the part of the Applicant to leave to the exclusive and unilateral determination of the Council, the question at what precise stage in the subsequent School Development the required upgraded works should be undertaken or the question of who should be ultimately responsible for funding the works. In so concluding I accept that the responsible servants of the Council who had participated in the negotiations with the Applicant may have regarded the outcome of these negotiations entirely differently from what I have found to be the fact. In this respect I accept Mr Rayner's evidence that he, as the Council's Director of Engineering Services, would never have agreed to the arrangement's outlined in the Council's letter of 29 December 1995 if he "had been advised at the time that the School had no intention of constructing" the type of intersection required by the Council's condition. However the evidence in this case does not justify a finding that the Applicant ever had such an intention, or that having it, it deliberately concealed it from the Council's servants in the course of negotiations between them. I would only add this comment, that if I had found the Applicant's conduct in the negotiations to have been materially deceptive or misleading, I would have regarded such conduct as having a material bearing on the determination of the merits of the Applicant's case. However for the reasons given, I am satisfied that properly understood the Applicant was, in effect, saying no more than that it would regard it appropriate for the original condition to be reimposed on the grant of development consent to later stages of the School Development Project if circumstances justified or required such action, but without prejudice to the Applicant's statutory right to appeal against the imposition of such a condition. The qualification I have just mentioned, was not expressly formulated by the Applicant, but this is hardly surprising in view of the fact that the parties were seeking to negotiate a solution, and succeeded in doing so. In any event it is axiomatic that any determination by a consent authority on a development application or a modification application is liable to review on statutory appeal provided by the EP&A Act. Moreover it must be recalled, as I have earlier mentioned, that within a few months thereafter, when the Applicant had lodged its development application for Stage 2 to 7 it was emphatically reasserting its opinion that the School should not be wholly responsible for the intersection works and that it should have the benefit of a set off in respect of money expended on the modified Type C intersection work it had funded against its liability to contribute to the Council's s94 Contribution Plan. In this respect it is significant that although the Council did not accept the Applicant's submissions it did not assert that the Applicant was relevantly bound by any agreement entered into in December 1995. Such an assertion only came from the Council in the course of the current litigation. For all the foregoing reasons I hold (i) there was no agreement, as alleged by the Council (ii) the Applicant is not estopped from challenging condition 17, and (iii) the Applicant has not waived, or agreed to waive, its statutory right of appeal conferred by s97 of the EP&A Act. D. Is the Applicant relevantly "Dissatisfied" within the Meaning of s97 of the EP&A Act? This was the allied question of law raised by the Council in these proceedings. The factual basis for the Council's contention was that part of the approved development for Stages 2 to 7 had already been built at the time the present proceedings were instituted. The legal basis was claimed to be founded on the principles discussed in the decision of Hardie J in Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395 and in the decision of Bannon J in Waters v Hurstville City Council (1991) 77 LGRA 10 where his Honour considered more recent developments in the law concerning the doctrines of estoppel and election. In Waters Bannon J held that an appeal pursuant to s317L of the Local Government Act 1919 was incompetent because "the applicants have elected to exercise rights inconsistent with the right to appeal as aggrieved persons" (at 14) having reached that conclusion "(N)ot without difficulty" (at 14). In Rein Warry & Co v Wollondilly Council (unreported 27 April 1994) in dismissing a Motion that a class one proceeding (being an appeal pursuant to s97 of the EP&A Act) was legally incompetent on grounds similar to those discussed in Waters I expressed the following opinions at pp 7 and 8 which I would apply to the present case: "Generally speaking I would prefer in a case such as the present (involving an appeal against a condition of development consent) the approach taken by Waddell J in Parramatta City Council v Travenol Laboratories Pty Ltd (1978) 35 LGRA 368, a case dealing with s342N(2) of the Local Government Act 1919 (the predecessor to s97(1) of the EP&A Act ). In that case Waddell J distinguished Bryson Industries and other similar cases. His Honour expressed the following views at 377 with which I would respectfully agree and would apply to a case such as the present: "There must be many cases, where the imposition of a condition is all that is in contest between an applicant and a council, in which the proper and convenient course to follow would be to permit the development in question to proceed immediately and leave the justification for the condition to be determined later on appeal. To follow such a course would often prevent financial loss to the landowner, be in the public interest, and be a responsible exercise of local government powers." It would, in my opinion, be a very inconvenient result if a developer who was dissatisfied with a condition of development consent and had appealed against the imposition of that condition, was unable to act upon that consent until that appeal had been determined by the Court. It is true there are provisions in the EP&A Act (eg s93(1), (2) and (3) dealing with the question of "the date from which a development consent operates") which suggest that once an appeal has been lodged there is a suspension of the development consent pending the outcome of the appeal. However the existence of these provisions is not necessarily inconsistent with the views that I have expressed adopting Travenol . Rather they expose the developer to the ultimate risk of the development consent being avoided (s93(3)). Moreover by virtue of the existence of s93(3) of the EP&A Act it cannot be said of the Applicant in the present case, that by implementing Stages I and III of the approved subdivision and by contemporaneously appealing against Condition 12 relevant solely to Stage II of the approved subdivision, it has thereby elected between two inconsistent legal rights: The Commonwealth v Verwayen (1990) 170 CLR 394. In truth no such inconsistent rights are presented by the combined operation of ss93 and 97 of the EP&A Act . This is a further point of distinction from Waters which did not involve the EP&A Act (or provisions of the Local Government Act 1919 having any similar effect to s93 of the EP&A Act )." For these reasons I would reject the Council's contention that the present proceedings are legally incompetent. E. The Planning Merits This brings me to the planning merits of the case. In respect of condition 17, extensive traffic engineering evidence was given at the hearing concerning (i) the adequacy of the existing intersection (i) the need for upgrading the intersection, (iii) the volume of traffic using, or likely to use, the intersection either to enter or exit Mahers Lane, and (iv) the traffic generating qualities or propensity of the School, as it exists, and as it is proposed to be expanded with the completion of the approved stages 2 to 7 of development. In my opinion the expert evidence adduced by the Council is to be preferred to that adduced by the Applicant in respect of (i) the adequacy of the existing intersection and (ii) the need to upgrade it. However this conclusion does not necessarily reflect adversely upon the Applicant's Traffic Engineering Consultant, Mr Findlater whose opinions on those matters were obviously influenced by his opinions concerning (i) the proportion of the overall traffic volume utilising the intersection that may fairly be attributed to the School and (ii) the sharing of the financial burden or responsibility for such works, fairly among the persons using the intersection. Moreover it is these latter considerations that found the Applicants' principal contention that it is simply unreasonable, and hence unfair, to impose the total financial burden for the upgraded intersection upon the Applicant. In this respect I do not accept the expert evidence adduced by the Council concerning the traffic generating qualities or propensity of the School development (in its expanded form) and the estimates of the volume of traffic generated by the School development using the intersection compared with non-school generated traffic using the intersection, namely traffic generated by the adjacent residential estate situate to the west of Mahers Lane, but having direct access thereto, as part of an alternative access to Terranora Road. According to Mr Findlater the School (in its final expanded form) is estimated to contribute some 36% of the estimated daily total volume of traffic using the intersection whereas according to Mr Morgan, the Council's Traffic and Transport Engineer, the School is estimated to contribute some 55% of the estimated daily traffic volume. These are of course estimates only and I am prepared to accept both estimates as providing the upper and lower levels of the spectrum. I can summarise my findings on the traffic engineering evidence as follows: (i) in January 1996, in fulfilment of its modified obligation under condition 10 of the original development consent, the Applicant provided a modified Type C intersection; (ii) the Applicant entirely funded the intersection at a cost of $64,000; (iii) the intersection so provided requires to be upgraded in the interests of traffic planning and traffic safety to adequately cope with estimated increased traffic usage; (iv) the required level of upgrading would be achieved by compliance with condition 17 of the 1996 development consent; (v) the cost to the Applicant of upgrading the existing intersection to the standard required by condition 17 would be approximately $140,000; (vi) the approved School development is only one (albeit, significantly so) of the contributors to increased vehicular usage of the intersection and , hence is only one of the causes for the required upgraded intersection; and (vii) the percentage of overall traffic usage of the intersection attributable to the approved School development is within the range of 36 to 55%. It is in the light of these findings that I must now consider the competing cases as to the planning merits of condition 17. The Applicant submits that it is simply unreasonable, and hence, unfair to impose upon it the total obligation for the upgraded facility. Upon the basis of its contribution to the overall usage of the intersection it submits that it has already, by dint of the intersection works carried out in January 1996 at a cost of $64,000, funded 32% of the total estimated cost of $204,000 for the staged upgrading of the intersection. In these circumstances it submits that condition 17 should be deleted from 1996 development consent. The Council's competing case emphasises (i) the traffic safety requirements for the intersection upgrade, and (ii) the large extent of the total School development involving a student population of 564 and a total development cost of $9 million. In my judgment the Council's case, while properly emphasising matters of traffic safety, effectively ignores considerations of the fairness and reasonableness of the burden imposed upon the Applicant by condition 17. Such considerations are undoubtedly relevant to the question whether the condition should be imposed on the grant of the 1996 development consent. The power conferred by s94 of the EP&A Act to impose a condition requiring the dedication of land or the payment of a monetary contribution is expressly limited by subsection (2) to require "a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services" likely to be required by, or for which demand is increased by, the approved development. Moreover it is well settled that the power conferred by s91(1) and (3) of the EP&A Act to impose conditions on the grant of development consent requires, as a condition of validity, that the condition: (i) be for a planning purpose or relate to a planning purpose; (ii) must fairly and reasonably relate to the approved development; and (iii) must be reasonable. In the present case the power conferred by s94 of the Act was not available to the Council to authorise the imposition of condition 17 when granting the 1996 development consent because there was no relevant contributions plan approved under s94AB of the EP&A Act which allowed for such a condition to be imposed: vide s94(7) of the EP&A Act. In this respect it will be recalled that throughout the negotiations between the parties in 1995 and 1996 the Applicant had consistently invited the Council to amend its s94 Contributions Plan to include within its ambit, intersectional works on major roads, but this submission was never adopted by the Council. Herein lies the fundamental dilemma in the present case. Clearly if condition 17 were legally capable of being founded upon the power conferred by s94 of the EP&A Act, that power would not sustain the imposition of the condition because to burden the Applicant with the total financial responsibility for the upgrading of the intersection in circumstances where the Applicant's development contributes between 36% to 55% of overall traffic volume using the intersection would be unfair, in the sense of being both disproportionate and discriminatory. However condition 17 must be founded upon the power conferred by s91(1) and (3) of the EP&A Act to impose conditions on the grant of development consent. The extent of that source of power (given that the power conferred by s94 of the EP&A Act was not available) was not explored in the present case. However there are a number of decisions in this Court which have examined the relationship between sections 91 and 94 of the EP&A Act. In Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Stein J held, in relation to a condition of development consent requiring the dedication of land as a public reserve, that s94 was the exclusive source of power under the EP&A Act for the imposition of such a condition and that there was no alternative power conferred by ss 90 and 91 of the Act independently of s94. Again the present case has not explored the precise head of power to impose conditions, which authorises condition 17, but it would appear that the most likely source of power is found in s91(3)(f) which provides as follows: "(3) A condition may be imposed for the purposes of subsection (1) if it - requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent." Again (without being explored in the present case) the most likely source of relevant matter referred to in s90(1) is found in paragraph (j) which provides as follows: "the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system." However even if it be assumed that condition 17 is founded upon the power conferred by s91(3)(f) (by reference to the matter enunciated in s90(1)(j) ) the criterion of the reasonableness of the condition, in my opinion, must be satisfied. In this respect, and by parity of reasoning with the decided cases which have considered the relationship between s91 and s94 , it is not to be supposed that the power conferred by the former section is a wider power than that conferred by the latter section or that the exercise of the former power is unrestrained by notions of fairness, reasonableness, proportionality and non-discrimination. Moreover a further question that may have arisen in the present case concerning the relationship between s91 and s94 goes beyond what has been determined by the decided cases (namely that s91(1) & (3) does not provide an alternate power to that conferred by s94). This is the question that arises in cases such as the present, where there is a s94 Contributions Plan but it does not authorise a condition requiring a cash contribution towards a designated public amenity (in this case the upgrading of the intersection) and hence the power conferred by s94 is simply not available. In these circumstances does the power conferred by s91(1) and (3) fill the breach created by the unavailability of s94 in respect of that public amenity? It would appear to be but a short and logical step in the reasoning in Fitch to answer the question in the negative. However the question was not explored in the present case and it is therefore not appropriate to determine it. Rather I must proceed on the assumed basis that condition 17 was a valid condition and accordingly the only question to be resolved is whether such condition should, as a matter of planning merit, be imposed on the 1996 development consent. In so formulating the relevant question for decision in the case I should note that no case was presented by the Council along the lines (i) that without imposing such condition the 1996 development consent ought not have been granted and accordingly that the Court would not now so grant it or (ii) that the case justified a condition of the type approved by the House of Lords in Grampian Regional Council v City of Aberdeen District Council (1984) 47 P & CR 633 to the effect that the approved stages 2 to 7 of the School Development Project should not proceed unless and until the intersection upgrading had occurred. Having carefully considered the competing cases I have come to the conclusion that condition 17 is not justified in the present case because it places an altogether unfair and unreasonable financial burden upon the Applicant in respect of the provision of a public amenity (the upgraded intersection) that the Applicant's development, does not itself require, and which benefits many more traffic users than those associated with the Applicant's development. Because of the non-availability of the power conferred by s94 of the EP&A Act the competing cases have been presented on the basis of "all or nothing" condition. This appears to be inevitable since there is simply no power to impose a condition requiring the Applicant to make a reasonable cash contribution towards the provision of the upgraded intersection and there was been no suggestion that condition 17 be modified to require the Applicant to undertake some proportion of the required works. If, as I have earlier suggested, the appropriate solution was to apportion the financial burden between the Applicant (in respect of the traffic generated by its development) and other users of the intersection, the modified Type C intersection works undertaken by the Applicant in January 1996 at a cost of $64,000 would appear to me, to satisfy the requirements of fairness and proportionality. In the circumstances I think the considerations of fairness and reasonableness relied upon by the Applicant must prove decisive in this case. The issue upon which most attention was focussed at the hearing, namely whether the existing intersection required the upgrading sought by condition 17, was something of a false issue in the sense that it was not the ultimate issue raised by the case. My finding that the upgrading is required in the interests of traffic safety stands, but that finding does not justify, on the facts of the present case, imposing upon the Applicant total financial responsibility to fund the required upgrading which will provide a public amenity. The fact that such works have not been factored into the Council's s94 Contributions Plan is the responsibility of the Council. The Applicant's case has not sought to exploit this deficiency in the Council's s94 Contributions Plan. On the contrary for some years the Applicant has been urging the Council to suitably amend its s94 Contribution Plan so that responsibility for the funding of essential road infrastructure works (such as the subject intersection works) can be fairly shared among the several developers and users of the public facilities. Moreover it is to be recalled that condition 28 of the 1996 development consent requires the Applicant to contribute $146,088 under that Plan. For all the foregoing reasons I would uphold the Applicant's appeal against condition 17. The competing cases concerning condition 14 were much briefer. This is not surprising since in financial terms the obligation is minor, namely $6,000 being the estimated cost for 136m of road frontage opposite the development site. The competing evidence was given by Mr Morgan for the Council, and Mr Findlater for the Applicant. The former's opinion was that the kerb and gutter was required "to control parking of vehicles by parents of school children and to improve traffic safety by keeping vehicles off the footpath/verge area and to facilitate parking of vehicles in the street". These views were supported by a spot check parking survey conducted by Mr Morgan on 12 September 1997 when he observed 16 cars parked on the eastern side of Mahers Lane (being the location of the development site) and 15 cars parked on the western side. (The Applicant has provided kerb and guttering to its side of Mahers Lane.) Mr Findlater's competing opinion was that since the development site provided within the school grounds (i) bus bays, (ii) vehicle set down zones and (iii) 164 car parking spaces (in circumstances where the Council's Code required only 45 spaces) there was no need to provide kerb and gutter on the opposite side of Mahers Lane. The other relevant facts to note are (i) that land fronting the western side of Mahers Lane remains in the rural zone and unlike land to its immediate west has not been released for residential development and (ii) Mahers Lane is a non through road and terminates some hundreds of metres beyond the development site where it services rural properties. These facts suggest that there is not likely to occur in the foreseeable future any major redevelopments of lands fronting Mahers Lane (other than the School development) that would reasonably provide for kerb and guttering on the western side of the road. Again the Applicant's submission is that this condition is unreasonable and unfair and should not be imposed. However unlike condition 17 the obligation imposes but a very modest financial cost, and the Applicant is certainly likely to be the chief (if not exclusive) beneficiary of the kerb and gutter in terms of traffic safety and orderly kerbside parking activities, which probably will continue to be undertaken by parents dropping their children to school, notwithstanding the more than generous provision of car parking available within the school grounds. Again, because the question was not explored I must assume the condition is a valid condition and the only question is whether it is in the circumstances a reasonable condition to be imposed on the 1996 development consent. In my judgment it is, and to impose it does not involve a financially burdensome obligation on the Applicant. Unlike my consideration of condition 17 no question of disproportionality or discrimination arises in respect of this condition. Accordingly I would dismiss the appeal against condition 14. F. Orders For all the foregoing reasons I make the following orders. 1. Appeal against condition 14 of development consent granted on 31 December 1996 to Development Application No. 96/278 be dismissed and condition 14 be confirmed. 2. Appeal against condition 17 of the said development consent be upheld and condition 17 be set aside. 3. Exhibits to be returned. 4. No order as to costs. --------------OoO-------------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 28 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate 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.