Land and Environment Court New South Wales Medium Neutral Citation: Kempsey Shire Council v M A Roche Group Pty Ltd [2012] NSWLEC 211 Hearing dates: 10 September 2012 Decision date: 10 September 2012 Jurisdiction: Class 4 Before: Pain J Decision: The Court makes the following orders: 1. The Respondent to pay the Applicant the amount of $17,871 and interest on that amount as provided for by s 100 of the Civil Procedure Act 2005 capped at $2,364 within 28 days. 2. Respondent to pay the Applicant's costs of the proceedings as agreed or assessed. Catchwords: CIVIL ENFORCEMENT - temporary quarry use - failure to pay a s 94 developer contribution in breach of development consent condition - incorporation of development contribution plan into condition of development consent requiring payment before use commenced - order made requiring payment Legislation Cited: Civil Procedure Act 2005 s 100 Environmental Planning and Assessment Act 1979 s 76(1), s 124 Cases Cited: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322 Rich v Lennox Palms Estate [2009] NSWLEC 167 Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 Westfield Management Limited v Perpetual Trustee Co Ltd [2006] NSWCA 245 Category: Principal judgment Parties: Kempsey Shire Council (Applicant) M A Roche Group Pty Ltd (Respondent) Representation: Mr M Maconachie (Applicant) No appearance (Respondent) Donovan Oates Hannaford (Applicant) File Number(s): 40294 of 2012 EX TEMPORE Judgment 1The Respondent, M A Roche Group Pty Ltd, sought and was granted a temporary development consent on 22 May 2008 from Kempsey Shire Council (the Council) for temporary crushing and screening, a quarry use, at a property in Raymonds Lane, Frederickton NSW. The consent lapsed on 1 June 2009. The consent was subject to a number of conditions including condition 20 requiring the payment of a contribution under s 94 of the Environmental Planning and Assessment Act 1979 (the EPA Act) calculated in accordance with a s 94 Rural Roads Developer Contribution Plan and a s 94 Project Administration Developer Contribution Plan. No contribution has been paid by the Respondent to the Council. These Class 4 proceedings seek a finding that development consent condition 20 has not been complied with, in breach of s 76A of the EPA Act, and an order requiring the Respondent to pay the s 94 contribution plus interest capped at a certain level to the Council. 2The Respondent did not appear and was not represented at this hearing. I held at the outset that the matter could proceed ex parte in the Respondent's absence. 3Relevant documents were attached to an affidavit of Ms Alberry, Council's development assessment officer, sworn 8 May 2012 and read in these proceedings. The affidavit sets out the history of the matter including the making of the development application by the Respondent, the notice of determination sent to the Respondent including the conditions imposed and copies of the relevant s 94 plans. The Respondent provided information of monthly tonnages of material obtained at the site to the Council in May 2009 following Ms Alberry's visit to the site in March 2009 when activity consistent with the commencement of the consent was observed. Ms Alberry's affidavit confirms that a s 94 contribution has not been received from the Respondent. 4I am informed that no notice of commencement of the use pursuant to condition 2 of the consent was provided before the use commenced. 5Condition 20 states: 20.Contribution to be paid towards provision or improvement of amenities or services The particulars of the contributions levied pursuant to Section 94 of the Act are set out in the following table: The specific public amenity or service in respect of which the condition is imposed. The contributions plan under which the condition is imposed Date of contributions plan Collombatti Road Section 94 Rural Roads Developer May 2000 Raymond's Lane Section 94 Rural Roads Developer May 2000 Quarry Road Section 94 Rural Roads Developer May 2000 Section 94 - Project Administration Project Administration 30 June 2007/08 The above plans may be viewed during office hours at the Council Offices located at 22 Tozer Street, West Kempsey. Contributions set out in the following Schedule are to be paid to Council. The following contributions are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The contribution rates for specific dates are available from Council offices during office hours. Payments will only be accepted by cash or bank cheque. Schedule of Contributions pursuant to Section 94 of the Environmental Planning and Assessment Act 1979 Public amenity or service Contribution Levied Date until which . Contribution rate is applicable Collombatti $394 June 2007/08 Raymond's Lane $786 June 2007/08 Quarry Road $15,680 June 2007/08 Sub-Total $16,860 Section 94 - 6% of total Section 94 charge applicable $1,011 June 2007/08 Admin TOTAL $17,871 6The s 94 Rural Roads Developer Contribution Plan at 5.2 states that a contribution is payable in the case of a consent for any other development before the development is commenced, the applicable provision here. In the s 94 Project Administration Developer Contribution Plan a similar provision is found at B.3. 7The Council's counsel submitted that the terms of the condition gave rise to the inference that payment of the contribution was to be made before the use commenced. Alternatively, the s 94 Rural Road Developer Contribution Plan and Project Administration Developer Contribution Plan were incorporated into the consent under Condition 20 and the timing of payment was required to be in accordance with that plan, namely before the use commenced. Consideration 8Condition 20 does not state when payment of the s 94 contribution was to be made. It does state that the contribution was to be paid to the Council. Various authorities confirm that when construing development consent conditions these should be given practical effect so far as possible and to avoid uncertainty, see Rich v Lennox Palms Estate [2009] NSWLEC 167 at [24] citing Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531 per Murphy J and Westfield Management Limited v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [40] per Hodgson JA. That approach is relied on by the Council's first submission that given the temporary nature of the consent, its straddling of two financial years, and that it was up to the Respondent to choose in which year it paid, that the inference arises that payment ought be made before the use commenced. I am unable to agree with that submission given the absence of explicit words to that effect and the terms of condition 20 on their face which make no reference to when payment was required. As I put during the hearing, on another construction of the consent, payment could be required during the limited 12 month term of the consent which could be after the use had commenced. 9The alternative submission made was that as the s 94 developer contributions plans are expressly referred to in the table and in the text in condition 20, these should be considered as part of that condition. 10If the Rural Roads Developer Contribution Plan and Project Administration Developer Contribution Plan are incorporated into condition 20 these plans specify that the payment should be made before the use commences. The plans are referred to explicitly in the table and text in condition 20 and applying the principles referred to in Lennox Palms Estate at [24] and Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 at [51] referring in turn to Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322 it is necessary and appropriate to construe the condition to incorporate the s 94 plans referred to into that condition. Doing so provides certainty to the requirement of payment imposed and gives practical effect to the operation of the condition. Having been incorporated, these plans require the s 94 contribution be made before the use sanctioned by the consent commences. This has not occurred. The condition has not therefore been complied with, a breach of s 76A(1) of the EPA Act. 11The Court has broad powers to remedy or restrain breaches of that Act in matters of this kind by virtue of s 124 of the EPA Act. Exercising that power I order that the Respondent pay the amount of $17,871 and interest on that amount as provided for by s 100 of the Civil Procedure Act 2005 capped at $2,364. The Respondent is to pay the Council's costs as agreed or assessed. Orders 12The Court makes the following orders: (1)The Respondent to pay the Applicant the amount of $17,871 and interest on that amount as provided for by s 100 of the Civil Procedure Act 2005 capped at $2,364 within 28 days. (2)The Respondent to pay the Applicant's costs of the proceedings as agreed or assessed. 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. Decision last updated: 14 September 2012