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and Assessment Act 1979 requiring monetary contributions - applicable s94 Contributions Plan - s94 conditions based on repealed Contributions Plan – development yet to be commenced and demand for services and facilities generated by the development will not occur until dwellings are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 According to the evidence CP 2005 was repealed and replaced with the Byron Shire Developer Contribution Plan 2012 (Amendment 3) (CP2012) on 1 January 2015. 4.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. Jurisdiction/consideration 1. A contribution is required under section 94 (1) if : "…a consent authority is satisfied that development for which a development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area…" 2. However, s94B of the EPA Act authorises the amendment of a s94 condition imposed on a development consent in circumstances where the Court is satisfied that the contribution sought is unreasonable even if the contributions payable were determined in accordance with a relevant contributions plan. 3. In this case the Consents have not been commenced and, therefore, the demand for services and facilities generated by the developments has not occurred. In fact, I am told that the dwellings are not likely to be constructed on the land until late 2015. 4. The evidence is that the incoming resident population generated by the Consents has been planned for in the Council's CP 2012. 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. Council's budgeting for payment of its own contribution toward such as facilities is based on the CP 2012. 5. In my opinion it is reasonable that any contribution payable should reflect the demand at the time it occurs and be calculated under the current CP 2012. Conclusion 1. I have power to modify the development consents and amend the conditions imposed under section 94 as referred to in section 94B (3) Arkibuilt Pty Ltd V Ku Ring gai Council [2006] NSWLEC 502. 2. I have decided to exercise that that power in these proceedings because the section 94 conditions are unreasonable for the reasons stated. 3. The Council has not raised any issue of concern about the preconditions in section 96 (1A) and, I consider that those preconditions have been met. Furthermore, there no is matter which leads me to the view that in the exercise of my discretion I should decline the applications. 4. In my assessment, the s94 conditions ought to be amended in line with the proposed consent orders filed in each proceeding at the hearing. 5. Accordingly, I make the following orders: Orders in proceedings no 15/10360: 1. The appeal is upheld. 2. The application pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 (Modification Application No. 10.2011.474.2) is approved. 3. The development consent granted by the Respondent to Development Application No. 10.2011.474.1 on 9 August 2012 for the residential subdivision to create 49 allotments in respect of the land known as Lot 22 DP 1070522 and Lot 4 DP 233810, 1 Ballina Road, Bangalow is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 as follows: 3.1: Delete condition 16 and replace with: 16) Developer Contributions to be paid for Stage 2 Contributions set out in the schedule below are to be paid to Council prior to the release of a subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The Plan may be viewed on line at http://www.byron.nsw.gov.au/ or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependant on the number of lots to be released in the subdivision certificate. The first credit for a site will be retained on the residual lot. Any additional credits over one (1) will be allocated at the first stage(s). The contributions in the schedule 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 schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule. 3.2: Delete condition 52 and replace with the following: 52) Developer Contributions to be paid for Stage 3 and 4 Contributions set out in the schedule below are to be paid to Council prior to the release of a subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The Plan may be viewed on line at http://www.byron.nsw.gov.au/ or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependant on the number of lots to be released in the subdivision certificate. The contributions in the schedule 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 schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule. 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 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 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 of the applicant. 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. 3.3: Delete "Schedule of Development Contributions" and the three tables that follow under the heading "Notes" at the end of the consent. Orders in proceedings no 15/10361: 1. The appeal is upheld. 2. The application pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 (Modification Application No. 10.2011.413.3) is approved. 3. The development consent granted by the Respondent to Development Application No. 10.2011.413.1 on 28 June 2012 (as modified on 12 June 2014) for the subdivision to create 42 Residential lots, a Recreation Reserve and a Balance lot in respect of the land known as Lot 1 DP 127485, 59 Lismore Road, Bangalow is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 as follows: 3.1: Delete condition 11 and replace with: 11) Developer Contributions to be paid for Stage 1 Contributions set out in the schedule below are to be paid to Council prior to the release of a subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The Plan may be viewed on line at http://www.byron.nsw.gov.au/ or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependant on the number of lots to be released in the subdivision certificate. The first credit for a site will be retained on the residual lot. Any additional credits over one (1) will be allocated at the first stage(s). The contributions in the schedule 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 schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule. 3.2: Delete condition 53 and replace with the following: 53) Developer Contributions to be paid for Stage 1 Contributions set out in the schedule below are to be paid to Council prior to the release of a subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The Plan may be viewed on line at http://www.byron.nsw.gov.au/ or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (Amendment 3). The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependant on the number of lots to be released in the subdivision certificate. The contributions in the schedule 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 schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule. Note: Council will accept land dedication and embellishment works for open space (refer to conditions 25 and 43) free of cost to Council in lieu of paying the Section 94 contributions levied in the 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 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 of the applicant. 3.3: Delete "Schedule of Development Contributions" and the two tables that follow under the heading "Notes" at end of the consent. 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 2015