Tetbury Pty Limited v Ku-ring-gai Council [2007] NSWLEC 771

Land and Environment Court of New South Wales

CITATION : Tetbury Pty Limited v Ku-ring-gai Council [2007] NSWLEC 771

APPLICANT: Tetbury Pty Limited PARTIES : RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10392 of 2007

CORAM: Lloyd J

KEY ISSUES: Development Consent :- monetary contribution under s 94 of the Environmental Planning and Assessment Act 1979 - provision, extension or augmentation of community and recreation facilities - open space embellishment and acquisition - administration - appropriate contribution rate for the incoming population - apportionment - reasonableness

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 94, s 94B Environmental Planning and Assessment Regulation 2000 cl 27

DATES OF HEARING: 05/09/2007; 06/09/2007; 10/09/2007 and 11/09/2007

DATE OF JUDGMENT: 28 November 2007

APPLICANT: P C Tomasetti SOLICITORS: Phontos Legal LEGAL REPRESENTATIVES: RESPONDENT: M G Craig QC - 05/09/2007 and 06/09/2007 P J McEwen SC - 10/09/2007 and 11/09/2007 SOLICITORS: DLA Philips Fox

JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Lloyd J

Wednesday, 28 November 2007

LEC No. 10392 of 2007

TETBURY PTY LIMITED v KU-RING-GAI COUNCIL [2007] NSWLEC 771

JUDGMENT Background 1 HIS HONOUR: On 5 July 2006, the respondent, Ku-ring-gai Council, granted development consent to demolish three dwelling houses and to construct two residential flat buildings comprising 35 apartments at Nos. 29-33 Dumaresq Street, Gordon. The consent was granted subject to a large number of conditions, including condition 99 which required a monetary contribution of $752,413.35 in accordance with the council's s 94 contributions plan. 2 On 26 February 2007, the council approved an application to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The modification was for a variation in the apartment layout. The modified consent also resulted in a modification of condition 99 so as to require a contribution of $708,426.55. 3 A further application for modification of the consent was made in February 2007, which sought modification of condition 99 to a reduced sum of $17,976.38. On 4 May 2007, the applicant appealed to the Court against the neglect and delay of the council to determine the application. The council formally refused the application on 1 June 2007. 4 Section 94 of the EP&A Act enables a consent authority to grant a development consent subject to a condition requiring the dedication of land free of cost, or the payment of a monetary contribution, or both, if it is satisfied that the development for which consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area. 5 There are, however, two requirements that must be satisfied before a council can impose any such condition. The condition may be imposed only if it is of a kind allowed by and is determined in accordance with a contributions plan (s 94B(1)) and it may be imposed only to require a reasonable contribution towards the public amenities and public services concerned (s 94(2)). Moreover, a condition under s 94 that is of a kind allowed by a contributions plan may be disallowed or amended by the Court because it is unreasonable in the particular circumstances of the case, even if it was determined in accordance with the relevant contributions plan (s 94B(3)). 6 In the present case the condition is of a kind allowed by and determined in accordance with a contributions plan. The question for determination is the reasonableness of the contribution sought by the condition 99. Expert evidence has been adduced on the question by Mr D Brindle for the council and by Mr C J Young and Mr G Paroissien for the applicant. In addition to their separate reports there is a joint report by Mr Brindle and Mr Young and a joint report by Mr Brindle and Mr Paroissien. Mr Paroissien's evidence is limited to open space acquisition and open space embellishment. 7 The parties are in dispute over a number of discrete elements of the contribution. It is convenient to consider each element separately.