Land and Environment Court of New South Wales CITATION : Clydesdale Place Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 611 APPLICANT Clydesdale Place Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10677 of 2007 CORAM: Hussey C KEY ISSUES: Section 96 Application :- Modification to the s 94 contribution conditions of consent imposed on a 34 new residential development, LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 12/09/2007 EX TEMPORE JUDGMENT DATE : 12 September 2007 APPLICANT Ms R. Dawes, solicitor of Lindsay Taylor Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms J. Hughes, solicitor of DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 September 2007 10677 of 2007 Clydesdale Place Pty Ltd v Ku-ring-gai Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal concerns a s 96 modification to the s 94 contribution conditions of consent imposed on a 34 new residential development at 2 - 6 Clydesdale Place, Pymble. The original condition of consent required a contribution of $561,21.00. 2 However after conferencing between the parties, agreement has been reached to consent orders requiring a modified contribution of $545,420.72. 3 It is apparent from the submissions, the s 96 modification application relates to the same development because it is the s 94 contributions that are sought to be modified only. Secondly there are no objections to the consent orders agreed by the parties. Thirdly, in considering the merits of this s 96 modification, it is obvious that the modification is in respect to the monetary contributions to be made by the application in terms of the requirements of the s 94 contribution plans. 4 In this case, the parties have reviewed the various components involved with the s 94 contributions and agree it is a reasonable to adjust the projected population for this development, who will benefit from the services in the s 94 plan. 5 As a result of this adjusted population, there is a reduction in the amount of s 94 contributions assessed as a reasonable for this development. As the parties are agreeable to the reduced amount of contribution, I am satisfied that the consent orders dated 12 September 2007should be made, as has no compelling evidence to the contrary was presented to the Court. 6 The Consent Orders are: 1. The appeal be upheld. 2. Development Consent No. 1428/05 be modified by the replacement of condition 112 with the following condition. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area. TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF THIRTY-ONE (31) ADDITIONAL DWELLINGS IS CURRENTLY $545,420.72 . The amount of the contributions shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council's Section 94 Contributions Plan in force as at the date of the development consent, to reflect changes in land values, construction costs and the consumer price index. The contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council's adopted Section 94 Contributions Plan for Residential Development, effective from 30 June 2004 and in force as at the date of the 1. Community Facilities $1,117.76 2. Park Acquisition and Embellishment Works - Pymble $6,574.28 3. Sportsgrounds Works $1,318.32 4. Aquatic/Leisure Centres $27.82 5. Traffic and Transport $150.28 6. Section 94 Plan Administration $100.04 To obtain the total contribution figure the following table of occupancy rates is to be used: OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES One bedroom dwelling 1.27 persons Two bedroom dwelling 1.78 persons Three bedroom dwelling 2.56 persons Four bedroom dwelling 3.48 persons New Lot 3.48 persons SEPP (Seniors Living) Dwelling 1.3 persons To obtain the total contribution figure, the number of persons in the development is taken to be 58.72 people. Note: Each party is to pay its own costs of the appeal. ___________________ R Hussey Commissioner of the Court ljr 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.