Bangalow Property Investments Pty Ltd v Byron Shire Council [2015] NSWLEC 1262

Land and Environment Court New South Wales

Medium Neutral Citation: Bangalow Property Investments Pty Ltd v Byron Shire Council [2015] NSWLEC 1262 Hearing dates: 3 July Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Class 1 Before: Dixon C Decision: See at [ 25 ] Catchwords: APPEAL – Modification of conditions of development consent imposed under s94 of the Environmental Planning and Assessment Act 1979 requiring monetary contributions - applicable s94 Contributions Plan - s94 conditions based on repealed Contributions Plan – development yet to be commenced and demand for services and facilities generated by the development will not occur until dwellings are constructed on the land – should current Contributions Plan apply Legislation Cited: Environmental Planning and Assessment Act 1979 Byron Shire Council Section 94 Development Contributions Plan 2005 (incorporating Amendment No 1) Byron Shire Developer Contribution Plan 2012 (Amendment 3) Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai [2006] NSWLEC 502 Category: Principal judgment Parties: Bangalow Property Investments Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: Mr Andrew Pickles (Barrister) (Applicant) Mr Adam Seton (Solicitor) (Respondent)

Solicitors: Brock Partners Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 10360 of 2015 and 10361 of 2015

Judgment 1. The applicant, Bangalow Property Investment Pty Ltd, holds two development consents (DA10.2011.474.1) and (DA 10.2011.413.1) from Byron Shire Council for the subdivision of land in Bangalow. 2. The Consents are subject to conditions imposed pursuant to s94 of the Environmental Planning and Assessment Act 1979 (EPA Act). They require the payment of monetary contributions levied in accordance with the Byron Shire Council Section 94 Development Contributions Plan 2005 (incorporating Amendment No 1) (CP2005) which was in force at the time of the issue of the consents. 3. According to the evidence CP 2005 was repealed and replaced with the Byron Shire Developer Contribution Plan 2012 (Amendment 3) (CP2012) on 1 January 2015. 4. By separate applications to the Council the applicant, has made application to modify the section 94 conditions of the Consents to require the payment of monetary contributions levied in accordance with the current CP2012. 5. The Council does not oppose the applications. However, it does not have the power to approve of them either. The savings and transitional provisions of the current CP2012 provides: "…a modification to development consent that was determined under the previously adopted plan shall be assessed by reviewing the application in accordance with the 2005 plan 1. For that reason the applicant has appealed the Council's deemed refusal of its applications to the Court under s 96 (1A) of the EPA Act and seeks approval under s94B of the EPA Act. 2. My judgment deals with the two appeals. They are: 3. Proceedings Number 10361 of 2015 which concerns development application number DA10.2011.413.2. This consent approved a subdivision for 42 residential lots, a recreation reserve and a balance lot at 59 Lismore Road Bangalow. 4. The 94 conditions sought to be modified are conditions 11 and 53 of the consent. They state: 11) Develop Contributions to be paid Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No. 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. 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. Payments will only be accepted by cash or bank cheque. 53) Developer Contributions to be paid. Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No. 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. 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. Note: Council will accept land dedication and embellishment works for open space (free of cost to Council) in lieu of paying the Section 94 contributions levied in the attached schedule (up to the full value of the open space contributions) subject to Council agreeing on the valuation and particulars of the land to be dedicated and the embellishment works to be undertaken by the Applicant. The valuation must be equal to or greater than the monetary contribution levied to offset all open space contributions levied within the schedule. The valuation must be provided by the Applicant prior to construction and must be independently certified by, in the case of the land dedication, a Valuer who is an Associate of the Australian Property Institute, and in the case of the embellishment works, a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors, or persons who can demonstrate equivalent qualifications. Acceptance of valuations is at the sole discretion of the Council. Council may review the valuation of land/works and may seek the services of an independent person to verify the costs. In these cases, all costs will be at the expense to the applicant. Payments will only be accepted by cash or bank cheque. 1. Proceedings Number 10360 of 2015 concerns development application number DA 10.2011.474.1. This development consent was issued to the applicant on 9 August 2012 and approved a residential subdivision to create 49 lots in respect of the land known as lot 22 DP 1070522 and Lot 4 DP 233810 no 1 Ballina Road Bangalow. 2. The s94 conditions sought to be modified are conditions 16 and 52 of the consent. They state: 16) Developer Contributions to be paid (Stage 2) Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No. 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. 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. Payments will only be accepted by cash or bank cheque. 52) Developer Contributions to be paid Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No. 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. 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. Note: Council will accept land dedication and embellishment works for open space (free of cost to Council) in lieu of paying the Section 94 contributions levied in the attached schedule (up to the full value of the open space contributions) subject to Council agreeing on the valuation and particulars of the land to be dedicated and the embellishment works to be undertaken by the Applicant. The valuation must be equal to or greater than the monetary contribution levied to off-set all open space contributions levied within the schedule. The valuation must be provided by the Applicant prior to construction and must be independently certified by, in the case of the land dedication, a Valuer who is an Associate of the Australian Property Institute, and in the case of the embellishment works, a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors, or persons who can demonstrate equivalent qualifications. Acceptance of valuations is at the sole discretion of the Council. Council may review the Stage 3. Council will accept the works required for the construction of the footway/cycleway along the east side of Ballina Road from the intersection with proposed Road 1 and through to the north side of Bangalow Road, inclusive of a refuge median in Bangalow Road, as works in kind and will reduce the contributions of the Cycleway component (up to the full value of the contributions for the Cycleway component) by the value of the works undertaken by the owner. The value of the works must be provided by the applicant prior to construction and must be independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications. Acceptance of works in kind is at the sole discretion of the Council. Council may review the valuation of works and may seek the services of an independent person to verify the costs. In these cases, all costs will be at the expense of the applicant. 1. The modifications are sought to be justified on the basis that it is unreasonable to require payment under the repealed CP2015 in circumstances where: 1. The incoming resident population generated by the developments has been planned for in the Council CP2012. 2. The augmented facilities required by these new residents and the contributions to be paid towards such facilities are catered for and planned for in the CP 2012. 3. The Council's budgeting for payment of its own contributions towards such facilities is based on CP2012. 1. The applicant contends that the wording of the conditions requires the amount payable to be calculated on the basis of the contribution rates payable at the time of payment. 2. In the present circumstances the Consents have not been commenced, the contributions have not yet been paid and there is no environmental impact arising from the applications to modify the consents. 3. Accordingly, there is no reasonable justification to maintain contributions calculated in accordance with CP 2005, which is both out dated and repealed.