Land and Environment Court New South Wales Medium Neutral Citation: Eggleton v Manly Council [2014] NSWLEC 1010 Hearing dates: 14 January 2014 Decision date: 17 January 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA119/2013 for the demolition of the existing building and the construction of a boarding house at 135 Griffiths Street Balgowlah is approved subject to the conditions in Annexure A. 3. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: construction of a boarding house - appropriate amount for s94contribution Legislation Cited: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing) Category: Principal judgment Parties: Jason Eggleton (Applicant) Manly Council (Respondent) Representation: Mr G McKee, solicitor Mrs L Finn, solicitor McKees Legal Solutions HWL Ebsworth Lawyers File Number(s): 10586 of 2013 Judgment 1COMMISSIONER: This is an appeal against the refusal of DA119/2013 by Manly Council for the demolition of an existing building and the construction of a boarding house, a caretakers unit, bicycle, motorcycle and car spaces. All rooms are capable of being occupied by two (2) persons. 2The site is Lot 5 DP 9335, known as 135 Griffiths Street, Balgowlah and has a site area of 617 8m2. It currently contains an existing single storey dwelling and is surrounded by a mix of one to three storey residential development comprising dwellings, dual occupancies and residential flat buildings. 3The subject property is within the R1 (General Residential) zone under the Manly Local Environmental Plan 2013 (LEP 2013). The proposed development is permissible by way of State Environmental Planning Policy (Affordable Rental Housing). 4The appeal was subject to conciliation conferences on 27 September 2013, 12 November 2013, 29 November 2013 and 19 December 2013 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a) on 30 December 2013. The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 5As part of the conciliation conferences, the contentions raised by the council were fully addressed however condition 5 of the conditions of approval was in dispute. Condition 5 states: 5. Section 94 contribution Section 94 contributions are to be paid for the provision of or increase in the demand for public amenities and public services as a consequence of the development in the area. The total contribution for this development is $79,237.67. The contribution has been calculated as follows: o 1.4 persons per room x 17 dwellings at the rate of $3,755.34 per person = $89,377.09; o credit of 2.7 persons at the rate of $3,755.34 for existing 3 bedroom dwelling = $10,139.42; o Total contributions are $89,377.09 less $10,139.42 = $79,237.67 This contribution shall be paid to Council prior to the release of the Construction Certificate. Note; The Section 94 Contribution rate is indexed annually in accordance with movements in the Consumer price Index (All groups index) for Sydney issued by the Australian Statistician. Reason: To enable the provision of public amenities and services required/anticipated as a consequence of increased demand resulting from the development. 6The area of dispute was the credit to be given for the existing 3 bedroom dwelling located on the site (second dot point). 7Mr McKee, for the applicant, submits that in determining the appropriate credit, cl 4.19 of the councils Section 94 Contribution Plan 2004 (the s 94 Plan) sets out the correct approach .It states that the "best method of determining the additional demand for services and facilities is arrived at by estimating the size of a household". The Table in this sub clause identifies 2.7 persons/dwelling for a 3-bedrom house as the appropriate size of the household. This sub clause also states that the "above occupancy rates will also be used for determining credits, for example, in the case of the demolition of an existing residence". 8On this basis, Mr McKee submits that condition 5 should be amended to read (changes underlined): 5. Section 94 contribution Section 94 contributions are to be paid for the provision of or increase in the demand for public amenities and public services as a consequence of the development in the area. The total contribution for this development is $47,287.33. The contribution has been calculated as follows: o 1.4 persons per room x 17 dwellings at the rate of $3,755.34 per person = $89,377.09; o credit of 2.7 persons at the rate of $15,588.80 per person for existing 3 bedroom dwelling = $42,089.76; o Total contributions are $89,377.09 less $42,089.76 = $47,287.33 This contribution shall be paid to Council prior to the release of the Occupation Certificate. Note; The Section 94 Contribution rate is indexed annually in accordance with movements in the Consumer price Index (All groups index) for Sydney issued by the Australian Statistician. Reason: To enable the provision of public amenities and services required/anticipated as a consequence of increased demand resulting from the development. 9Mrs Finn, for the council, submits that condition 5 is the appropriate condition even though the credit of 2.7 persons at the rate of $3,755.34 for the existing 3 bedroom dwelling is based on the rate for Tourist Developments in cl 12.2 of the s 94 Plan. This rate was considered inappropriate by Mr McKee, given that its previous use was a dwelling not a tourist development. 10If this rate was not considered appropriate by the Court, Mrs Finn submitted that the rate of $15,588.80 per person for 2.7 persons (giving a contribution of $42,089.76) was also not appropriate given the Direction imposed by the Minister for Planning under s94E of the Environmental Planning and Assessment Act 1979 on 21 August 2012 that provided for a maximum contribution of $20,000. As this Direction has not been rescinded, it would be unreasonable to allow a credit greater than the amount the council can collect notwithstanding cl 4.19 and cl 12.1 of the s 94 Plan. 11In balancing the competing submissions, I do not accept the approach suggested by Mr McKee. It is difficult to argue that the applicant should be entitled to a credit greater than can be applied by the council given the Direction imposed by the Minister for Planning. I also do not accept the council's principal position that the credit should be based on the rate for Tourist Developments in cl 12.2 of the s 94 Plan. There is no basis for this approach, given that the previous use of the building was for dwelling not a tourist development. It follows that the applicable credit should be $20,000. 12Mr McKee also sought to further amend condition 5 by relacing the time of payment from "Construction Certificate" to "Occupation Certificate". As this more accurately reflects the demand for the increase in the demand for public amenities and public services, condition 5 can be further amended. 13Condition 5 should now read: 5. Section 94 contribution Section 94 contributions are to be paid for the provision of or increase in the demand for public amenities and public services as a consequence of the development in the area. The total contribution for this development is $69,377.09. The contribution has been calculated as follows: o 1.4 persons per room x 17 dwellings at the rate of $3,755.34 per person = $89,377.09; o credit of $20,000 for the existing dwelling based on the Direction imposed by the Minister for Planning under s94E of the Environmental Planning and Assessment Act 1979 on 21 August 2012 o Total contributions are $89,377.09 less $20,000 = $69,377.09 This contribution shall be paid to Council prior to the release of the Occupation Certificate. Note; The Section 94 Contribution rate is indexed annually in accordance with movements in the Consumer price Index (All groups index) for Sydney issued by the Australian Statistician. Reason: To enable the provision of public amenities and services required/anticipated as a consequence of increased demand resulting from the development. Orders 14The orders of the Court are: 1. The appeal is upheld. 2. DA119/2013 for the demolition of the existing building and the construction of a boarding house at 135 Griffiths Street Balgowlah is approved subject to the conditions in Annexure A. 3. The exhibits are returned. _______________ G T Brown Commissioner of the Court 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: 17 January 2014