Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17 Hearing dates: Monday 31 January 2011 Decision date: 18 February 2011 Before: Tobias JA at [1] Campbell JA at [71] Macfarlan JA at [72] Decision: (a) Grant leave to appeal. (b) Appeal allowed. (c) Set aside the orders made by Pain J on 30 April 2010 and the order made by Senior Commissioner Moore on 9 October 2009 and in lieu thereof order that Development Consent D/2007/2330/D for residential units at 5 Hutchinson Walk, Zetland be modified by inserting at the end of Condition 5, a credit of $467,462.28 for past workforce contributions. (d) The respondent to pay the appellant's costs of the proceedings before Pain J and of the summons for leave to appeal and the appeal. Catchwords: LAND AND ENVIRONMENT - ability to amend monetary condition for Council's consent to development for providing public amenities and services - whether condition is unreasonable in particular circumstances - whether rateability of relevant land is relevant for the net demand for public amenities and public services generated by development under construction - whether net demand for public amenities is dependent upon whether the previous landowner paid rates at any time - Environmental Planning and Assessment Act 1979 (NSW), ss 94, 94B

PROCEDURE - judgments and orders - whether matter should be remitted for determination or Court make appropriate orders - no purpose remitting matter for further consideration on basis of Court's decision with respect to sole basis upon which Senior Commissioner determined to discount credit the developer was found to be entitled to Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Local Government Act 1919 Local Government Act 1993 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Goldie v Commonwealth of Australia [2002] FCA 261 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 Meriton Apartments Pty Ltd v South Sydney City Council [2009] NSWLEC 1336 Meriton Apartments Pty Ltd v Council of the City of Sydney [2010] NSWLEC 64 Meriton Apartments Pty Ltd v South Sydney Council, 12 September 2001, unreported Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266, (2003) 58 NSWLR 159 Texts Cited: Development Contributions, Practice Notes Department of Infrastructure, Planning and Natural Resources 2005 Category: Principal judgment Parties: Meriton Apartments Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: D Russell QC / M Seymour (Applicant) M J Leeming SC / L Byrne (Respondent) Solicitors: Katerina Mihail - Meriton Group (Applicant) Legal & Corporate Governance Department, City of Sydney Council (Respondent) File Number(s): CA 2010/126676 Decision under appeal Citation: Meriton Apartments Pty Ltd v Council of the City of Sydney [2010] NSWLEC 64 Date of Decision: 2010-04-30 00:00:00 Before: Pain J File Number(s): L&E 2009/10860