Land and Environment Court New South Wales Medium Neutral Citation: S J Connelly CPP Pty Ltd v Byron Shire Council (No 2) [2014] NSWLEC 1139 Hearing dates: 30 June 2014 Decision date: 30 June 2014 Jurisdiction: Class 1 Before: Dixon C Decision: Appeal upheld. See orders at [9] Catchwords: Modification of development consent - section 94 contributions condition - reduction of monetary contributions - no nexus to the development Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bryon Shire Contributions Plan 2012 Bryon Shire Contributions Plan 2005 Cases Cited: S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSW LEC 1324 S J Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2 Category: Principal judgment Parties: S J Connelly CPP Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Mr Young (Applicant) Mr Seaton (Respondent) File Number(s): 10786 of 2010 Judgment 1COMMISSIONER: On 4 June 2012 I upheld an appeal by S J Connelly CPP Pty Ltd, the applicant, under s 96 of the Environmental Planning and Assessment Act 1979 (the EP & A Act). The proceedings were S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSW LEC 1324. The only issue in that appeal was the quantum of contributions payable by the applicant to Byron Shire Council, the Council. Under s 94 of the EP & A Act an appeal under s 56A of the Land and Environment Court Act 1979 (the LEC Act), from my decision was upheld in part by Pepper J in S J Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2. Her Honour set aside my orders and remitted the matter for determination in accordance with her decision. The remitted proceedings are now before me for determination. 2The parties inform me that they have reached agreement as to the quantum of contributions payable under s 94. To this end they have requested that I make orders in accordance with the draft orders that have been prepared and tendered to the Court and dated 30 June 2014 signed by both parties. Notwithstanding the agreed position between the parties I am required to be satisfied that it is appropriate to make orders in the terms requested by them. As my previous orders were set aside I am required to determine the application on the basis of facts and law as they exist at the present time. There is one significant change in the relevant circumstances to those considered by me in my earlier decision. 3A new plan prepared under s 94, the Byron Shire Contributions Plan 2012 (Contributions Plan 2012), was adopted by the council on 6 December 2012 and came into effect on 1 January 2013, which differs in its requirements from the earlier plan. However, I have been taken to the savings and transitional arrangements at cl 2.23 of the Contributions Plan 2012 which provides: 2.23 Savings and Transitional Arrangements A development application or a modification to a development application, which has been lodged prior to the commencement of this Plan but not determined, shall be determined in accordance with the provisions of the 2005 Plan, which applied at the date of lodgment. A development application lodged after the commencement of this plan shall be determined in accordance with the provisions of the 2012 Plan. A modification to development consent that was determined under the provisions of the 2005 plan shall be assessed by reviewing the application in accordance with the 2005 plan. Contributions levied on development consents under the previous contributions plans remain payable and are indexed in accordance with that plan. Contributions levied under a previous plan will be allocated to the highest priority uncompleted project in the new works schedules for the pooling of funds. 4The provision requires that this application having been lodged before the current Contributions Plan 2012 was commenced is to be considered and determined in accordance with the previous plan being the s 94 Contributions Plan 2005. That plan was the subject of consideration in my hearing of this matter in 2012. 5I am told that the contributions agreed between the parties do not equate with the current plan - that is, the Contributions Plan 2005. Despite that it is submitted that in the circumstances of this case having regard to the evidence that was before me on the last occasion and, in accordance with Pepper J's reasons, the agreed contributions in respect of the heads of contribution cycleways and civic and urban improvements are appropriate and should be imposed by the Court. 6The cycleways contribution that I had previously ordered was in the amount of $46,000 and the parties have agreed that it be reduced to an amount of $30,000. The civic and urban improvements contribution had originally been ordered in the amount of $49,166. The parties have agreed that it is appropriate on the evidence and the circumstances of this case that amount be reduced to an amount of $30,000. 7Following a consideration of the evidence and the Pepper J's reasons I am satisfied that the amounts now agreed should be imposed as s 94 conditions in place of the conditions originally imposed by the council. 8Accordingly, I now make the orders in accordance with the short minutes of orders that have been filed by the parties dated 30 June 2014. 9The Court orders by consent that: (1)The appeal is upheld. (2)The development consent granted by the Respondent on 24 May 2007 to development application No. 10.2005.733.1 for the development described as "Three storey mixed commercial development comprising: Hostel containing 316 beds, 5 x retail shops, 2 x restaurants, basement carparking and road widening" on Lot 1 DP 876261, 19-23 Lawson Street Byron Bay is modified pursuant to section 96(2) of the Environmental Planning and Assessment Act 1979 as follows: (a)Delete Condition 26 and replace it with the following: "26. Developer Contributions to be paid Pursuant to Section 94 of the Environmental Planning and Assessment Act 1979 a monetary contribution towards provision or improvement of public amenities and services must be paid. The total amount of the monetary contribution payable (unindexed) is set out in the Schedule below but is subject to adjustment by way of indexation at the time of payment. In that regard the unindexed contribution specified for each of the categories of the monetary contribution in the Schedule is to be indexed from 1 September 2005 to the date of payment in accordance with Byron Shire Council Section 94 Development Contributions Plan 2005 (Incorporating Amendment No 1) and the total amount of the monetary contribution payable is to be the aggregation of those indexed contribution amounts. SCHEDULE OF MONETARY CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979 Category Code Unindexed Rate Unindexed contribution Roads (R-BB) 237 trips @ $750.23 per trip = $177,804.51 Car Parking (CP-BB) 12.6 spaces @ $49,202.26 per space = $619,948.48 Cycleways (CW BB) 112.97 persons@ $265.54 = $30,000.00 Civic & Urban Improvements (IM-BB) 51.97 persons@ $577.23 = $30,000.00 Surf Lifesaving (SL-BB) 126.57 persons@ $9.38 = $1,187.21 Total amount of the monetary contribution payable (unindexed) = $858,940.20 (b)Delete the heading "Schedule of Development Contributions" and all of the words and Schedule appearing under that heading up until the heading "Reasons" on page 15 of the Notice of Determination of Development Application No. 10.2005.733.1 dated 11 July 2008. Susan Dixon 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: 15 July 2014