Olsson v Ashfield Municipal Council [2012] NSWLEC 1073

Land and Environment Court New South Wales

Medium Neutral Citation: Olsson v Ashfield Municipal Council [2012] NSWLEC 1073 Hearing dates: 1-2 March 2012 Decision date: 28 March 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld in part Catchwords: Development consent, public benefit, whether any credit for the provision of the public benefit should be allowed, s94 contributions. Legislation Cited: Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 1985 State Environmental Planning Policy No. 1 Cases Cited: Cavassini Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 North Western Surveys Pty Limited v Penrith City Council [2012] NSWLEC 1017 Texts Cited: Ashfield Development Control Plan 2007 Ashfield S94 Development Contributions Plan 2010 Category: Principal judgment Parties: Russell Olsson (Applicant)

Ashfield Municipal Council (Respondent) Representation: Counsel Mr J Ayling SC with Dr S Berveling (Applicant) Solicitors Mr P McLachlan McMahon Thorpe (Applicant)

Mr P Jackson Pikes Lawyers (Respondent) File Number(s): 11131 of 2011

Judgment 1Development consent 10.2010.301.1 was issued by Ashfield Council on 1 July 2011 and authorises the demolition of an existing commercial building, tree removal and construction of 2 x 8 storey mixed use buildings with associated car parking at 2A Brown Street Ashfield. The development application was lodged under provisions of the Council's Development Control Plan that provided for additional height, where a public benefit is included as part of the application in this particular case. A public car park was included within the development as a public benefit and the consent provides for an additional two storeys in each tower building. Conditions requiring dedication of the carpark are imposed in the consent and separate conditions under s 94 of the Environmental Planning and Assessment Act 1979 (the Act) requires the payment of contributions for public services and amenities required as a result of the development. 2Mr Olsson, the architect for the development, has filed an appeal against condition C(11) and is seeking its deletion. That condition is the condition requiring payment of s 94 contributions. The contentions in the case are whether the contributions should be imposed or reduced to take into account the building that was erected on the site at the time consent was granted and whether any form of credit should be provided to offset the cost of providing the car park.