Land and Environment Court New South Wales Medium Neutral Citation: Wilson v MidCoast Council [2018] NSWLEC 1489 Hearing dates: 11 – 12 September 2018 Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Class 1 Before: O'Neill C Decision: (1) The appeal is upheld. (2) Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under the Section 94 Development Contributions Plan Forster District of $117,156.48 and a total levy contribution of $117,955.75, at the date of these orders. (3) The exhibits, other than Exhibits 1, 3, 4, A and B, are returned. Catchwords: APPEAL: modified development consent granted for a service station and convenience store; appeal against the terms of a condition of consent requiring a levy contribution under s 94; whether the formula used to calculate the monetary contribution for a petrol station and convenience store should include a discount for passing trade trips; whether there is power to modify the terms of the condition; whether the condition is unreasonable in the particular circumstances of the case. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 The Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 Texts Cited: RMS Guide to Traffic Generating Developments Section 94 Development Contributions Plan Forster District Category: Principal judgment Parties: Robert Leo Wilson (Applicant) Mid-Coast Council (Respondent) Representation: Counsel: S Nash (Applicant) H Irish (Respondent) Solicitors: MRM Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2017/308265 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of a condition of consent, condition 20, imposed on Development Consent No. 206/2015 granted 22 September 2015 and as modified by Development Consent No. 206/2015/A granted 19 April 2017 (the Development Consent), for a service station and convenience store (the approved development), at 190 The Lakes Way, Tuncurry (the site), by MidCoast Council (the Council). 2. The appeal was subject to mandatory conciliation on 21 March 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. 3. Condition 20 of Development Consent No. 206/2015/A is in the following terms: 20. S94 contributions Prior to the issue of a construction certificate, a monetary contribution shall be paid to Council in accordance with Section 94 of the Environmental Planning and Assessment Act 1979. The services and facilities for which the contributions are levied and the respective amounts payable under each of the relevant plans are set out in the following table: Contribution rates are subject to indexation. The rates shown above are applicable until 30 June following the date of consent. Payment made after 30 June will be at the indexed rates applicable at that time. The Contributions Plan and the Standard Schedule for Section 94 Plans may be viewed on Council's web site or at Council's offices at Breese Parade, Forster. Reason: Statutory requirement to be paid towards the provision or improvement of facilities and services. 1. The parties agreed that the current indexed rate under the "Section 94 Development Contributions Plan Forster District" adopted 28 October 2014 ("the Forster District Plan" Exhibit 2, tab 10) is $697.36. It was uncontroversial that the site is land to which the Forster District Plan applies. Issues 1. The applicant appeals the terms of condition 20 of the Development Consent. The applicant contends that the quantity of 244 one-way vehicle trips (applied to the agreed indexed rate of $697.36 to calculate the levy contribution required under the Forster District Plan) is excessive, because the calculation of the quantity of one-way vehicle trips includes passing trade trips and passing trade trips should not be attributed to the approved development. Passing trade trips should instead be discounted in calculating the quantity of one-way vehicle trips over and above the discount factor for non-residential development, because the Forster District Plan only seeks contributions to be levied for development that increases the demand for infrastructure in the Forster district. The applicant contends that if an estimate of passing trade trips is applied in the formula as a discount, the quantity of one-way trips is reduced to 51 (Exhibit D). Statutory framework 1. Part 7, Subdivision 3 of the EPA Act sets out the statutory framework for local infrastructure levy contributions. The relevant sub-sections of ss 7.11 and 7.13 are in the following terms: 7.11 Contribution towards provision or improvement of amenities or services (cf previous s 94) (1) If a consent authority is satisfied that development for which 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, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned. ... 7.13 Section 7.11 or 7.12 conditions subject to contributions plan (cf previous s 94B) (1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). ... (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction... Section 7.13(3) of the Environmental Planning and Assessment Act 1979 1. The applicant submitted that the Court should exercise the power vested in it (and not vested in the Council as consent authority) within s 7.13(3) of the EPA Act to amend the quantity of 244 one-way vehicle trips in condition 20 because the imposition of this excessive quantity of one-way vehicle trips is unreasonable in the particular circumstances of this case, despite the quantity having been determined in accordance with the terms of the Forster District Plan. 2. The applicant submitted that Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 67 NSWLR 529 per Jagot J (Arkibuilt) is authority for the Court's power under the former s 94B(3) [now s 7.13(3)] of the EPA Act for a modification application. 3. The Council submitted that the absence of a contributions plan providing for a "drop-in trips" discount, in addition to the discount factor of 0.4 in the Forster District Plan, is fatal to the deletion of condition 20 and its substitution with another condition offered by the applicant, citing The Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 [98]-[110] and Craig J's discussion on the right of an applicant for modification of a development consent to question the validity of a condition of consent which sought to be modified by deletion in support of the Council's submission. 4. The decision in Arkibuilt dealt with the respondent's submission that the case was an "application", not an "appeal", because it was a modification application made directly to the Court pursuant to s 96(8) [now s 4.55(8)] of the EPA Act, and so the Court had no power to disallow or amend a condition under s 94 because s 94B(3) only allowed the Court to disallow or amend such a condition "on appeal". Her Honour held that there was no basis for construing s 94B(3) so narrowly and "an appeal" in s 94B(3) means any proceedings which the EPA Act allows to be brought to the Court with respect to the merits of a condition imposed under s 94 [22]. 5. I am satisfied that the Court in this matter could have exercised the power under s 7.13(3) of the EPA Act to disallow or amend condition 20. The issue dealt with by her Honour in Arkibuilt is not an issue in this matter because the terms of s 8.9 of the EPA Act are for "an appeal" to the Court against the determination of a modification application and because this appeal is brought with respect to the merits of condition 20 imposed under s 94 [now s 7.11] of the EPA Act. The appeal does not raise a question regarding the validity of condition 20. The Forster District Plan 1. The Forster District Plan was adopted 28 October 2014 (Exhibit 2, tab 10). 2. The purpose of the Forster District Plan, at 1.1, is to enable contributions to be levied as a condition of consent for development that increases the demand for infrastructure in the Forster District. 3. The purpose of the Major Roads Plan, at Section 3 of the Forster District Plan, is to "enable funding for improvements to Forster-Tuncurry Major Roads so that, as further development and consequent increases in motor, pedestrian and cycle traffic occur, Council will be in a position to increase the capacity of the major roads and intersections", at 3.1. The schedule of works on the Lakes Way and its major feeders are listed in a table which includes an estimate of cost based on 2011 values and a start date, at 3.5.1 of the Forster District Plan. 4. The Forster District Plan states that the updated RMS Guide to Traffic Generating Developments ("The RMS Guide") is used to estimate traffic generated by a development, at 2.3. 5. The Forster District Plan states that contributions are payable according to population increase, and, in some areas, traffic increase expressed in additional "one-way" trips, at 12.1. The following explanation is included at 12.1 regarding non-residential development: Non-residential developments will pay contributions according to the extra traffic generated that is not already counted as part of trips attributed to a levy on residential developments. As a guiding principle, non-residential developments are levied for the number of additional "one-way" trips that are generated. A "return trip" to a development is therefore counted as two movements. Council estimates that of all trips that a development generates, 20% have not been attributed to a levy on residential development. As such, the major road contribution for a non-residential development will be charged for 0.4 one way trips per vehicle accessing the site per day. Non-residential developments are encouraged to undertake a detailed Traffic Impact Assessment in accordance with Austroads guidelines to determine the estimated number of vehicles accessing a development per day. In the absence of a Traffic Impact Assessment, Council will use the "one-way" trip rates contained in the latest version of the Council's "Non-Residential" Developments S94 "One-Way" Trips Table (available from Council's website or offices) to estimate the number of additional "one-way" trips that a non-residential development generates. (Refer to Appendix 14.5 of this Plan for the now current Trips Table). 1. The table at Appendix 14.5 of the Forster District Plan includes 0.4 one-way trips per vehicle accessing the site per day as the Average Daily Vehicle Trips (ADVT) to be used for "Default Trips for Non-Specified Development" for "All sizes" of development. The note below the table includes, "2. The above ADVT values are only the "Non-Residential portion" of the "One-way" Trips not already included in Residential Trips. The RMS Guide 1. The RMS Guide is Version 2.2 dated October 2002 (Exhibit 2, tab 11). 2. The RMS Guide includes, at 3.6.2 'Service stations and convenience stores', the following for 'Rates' (Exhibit 2, ff 225-226): Evening peak hour vehicle trips = 0.04 A(S) + 0.3 A(F) or. Evening peak hour vehicle trips = 0.66 A(F) Average vehicle trips (9pm-12midnight) = 0.6 A(F) where. A(S) = area of site (m2) A(F) = gross floor area of convenience store (m2) Factors ... Daily trip generation rates depend on the site's operating hours. For example, at one convenience store surveyed over 24 hours, the total daily trop generation was 19 times the evening peak hour generation. For trips associated with fuel stales, the total daily trop generation was 17 times the evening peak hour generation. 1. A 'service station' and a 'convenience store' are separately defined in the RMS Guide at Section 10. The site and the approved development 1. The site is legally known as Lot 51 DP 1071540. The site has an area of 1,938m2. 2. Development Consent 206/2015/A is for a petrol station and convenience store to operate 24 hours per day, seven days per week, with a gross floor area of 120m2. Background Development Consent No. 206/2015 1. Development Consent No. 206/2015 for the construction of a new petrol station and associated structures was granted by the Council on 30 September 2015 (Exhibit 2, tab 1). 2. The development application was accompanied by a Traffic Report dated November 2014, prepared by Colston Budd Hunt & Kafes Pty Ltd ("the CB Report" Exhibit 2, tab 34). The CB Report anticipated that the proposal would, "generate some 80 – 100 customers per hour during peak periods. The majority of these customers will be passing trade already in the traffic stream" (Exhibit 2, f 43). The CB Report adopted the "higher generation of 100 customers per hour during peak periods, with a passing trade of some 70%. The additional peak period traffic generation of the proposed service station would therefore be some 30 customers per hour" (Exhibit 2, f 44). The CB Report does not include an estimate for the other values for calculating the s 94 levy contribution under the Forster District Plan. 3. Condition 20 of Development Consent No. 206/2015 included a requirement for a levy contribution of $285,815.93 under the Forster District Plan based on a quantity of 431 one-way trips (Exhibit 2, f 12), using the first formula in the RMS Guide and a daily rate conversion factor of 19, the higher of the two values in the RMS Guide, and a discount factor of 0.4 for non-residential development from the Forster District Plan. Modification of Condition 20 in Development Consent 206/2015/A 1. An application to modify Development Consent 206/2015 was lodged on 30 November 2016 to review condition 20 in order to re-assess the value of contributions under the Forster District Plan (Exhibit 2, tab 3). 2. The Modification Application was supported by a letter from Colston Budd Hunt & Kafes Pty Ltd dated 11 August 2016 ("the CB Letter" Exhibit 2, tab 4). The CB Letter sought to justify a reduction in the levy contribution required by condition 20 under the Forster District Plan to $121,356.45 based on a quantity of 183 one-way trips per day. The CB Letter used the first formula in the RMS Guide to calculate an estimate of peak hour two-way vehicle trips of 114. The reduction in the quantity of one-way trips was justified by reducing the daily rate conversion factor from 17 or 19 in the RMS Guide to 10.7 on the basis of a review of customer data for three nearby petrol stations; and by introducing a factor of 0.3 (instead of 0.4 for non-residential development in the Forster District Plan) to remove the trips attributable to passing trade (Exhibit 2, f 57). 3. The Council first considered the Modification Application on 8 March 2017 and resolved to defer the matter to have an independent consultant review the traffic analysis (Exhibit 2, f 65). The Modification Application was determined by Council on 20 April 2017 using the quantity of 244 one-way trips which resulted in a levy contribution of $164,539.94 for the Forster District Contribution Plan, based on the indexed rate at that time. Review by the independent consultant 1. An independent consultant reviewed the material provided to him by the Council after 8 March 2017 and responded to the Council's Senior Development Planner in a letter dated 5 April 2017 (Exhibit 2, ff 59-64). The independent consultant determined that the calculation of contributions under the Forster District Plan should be based on a quantity of 244 one-way trips, which the Council adopted in modifying condition 20 of the development consent. 2. The independent consultant accepted the applicant's reduction in the daily rate conversion factor to 10.7 when compared to the RMS Guide of 17 or 19, because the applicant's daily rate conversion factor was based on survey data from additional sites and such an approach, according to the independent consultant, was consistent with the recommendations of the RMS Guide (Exhibit 2, f 60). 3. The independent consultant stated the following regarding the discount factor of 0.3 applied in the CB Letter (Exhibit 2, f 60): Application of Passing Trade Discount Council's S94 plan specifies a factor of 0.4 times one way trips to estimate major road contributions for non-residential developments. This is a 60% discount factor. The applicant seeks to modify this to a 70% discount factor. Given the range of linked trip discounts in The Guide varies from 15% to 25% for retail, and 35% to 50% for fast food outlets, it is not unreasonable to expect a specialist motor vehicle related development (ie its prime purpose is refuelling motor vehicles) to have a high percentage of its transactions occurring while motorists are undertaking trips for other purpose [sic]. Research of alternate passing trade factors applied in Australia point to the US based Institute of Transport Engineers (ITE) Trip Generation Manuel (9th Edition) as an alternative reference on this issue. A review of traffic impact assessments of service station proposals across 8 sites in 5 States of Australia revealed they were assessed with assumptions on passing trade ranging from 40% to 90%, with the mean value slightly more than 60%. While not definitive, I would consider this supports Council's 60% discount factor as being reasonable and in the absence of anything more definitive from the applicant to justify the 70%, I would recommend application of the Councils [sic] 0.4 factor as per the Application of the Non-Residential Developments S94 One Way Trips Table – 18 Nov 2013. Expert evidence 1. The applicant relied on the expert evidence of Mr Simon Carroll (planning) and Mr Gerard Reardon (traffic engineering). The Council relied on the expert evidence of Mr Bruce Moore (planning) and Mr Ken Hollyoak (traffic engineering). 2. The planning experts agreed that the intent of the Forster District Plan is to levy contributions based on the number of additional one-way trips generated by non-residential development that is not already counted as part of trips attributed to a levy on residential developments. They agreed, that in the absence of a detailed Traffic Impact Assessment, contributions will be levied on 0.4 x the number of vehicles accessing the site per day, determined using the RMS Guide (Exhibit 3, p 3). 3. The planning experts agreed that the Forster District Plan does not consider or determine "drop-in trips" or any form of passing trade discount and any assessment of the passing trade is a matter for the traffic engineering experts. They agreed that the 0.4 discount factor in Section 12.1 of the Forster District Plan is not a passing trade discount factor. Consideration The appropriate formula to determine the two-way vehicle trips during evening peak hour 1. The traffic experts agreed, that in the absence of a detailed Traffic Impact Assessment, that the second formula in the RMS Guide, 0.66 multiplied by the gross floor area (GFA) of the convenience store in m2, is the more appropriate of the two formulae in the RMS Guide to estimate the two-way vehicle trips during peak hour (Exhibit 4, p 2). Mr Reardon considered that the second formula more closely reflected the results obtained by a traffic survey completed for a petrol station close to the site and Mr Hollyoak considered that the second formula more accurately reflected the peak hour traffic generation of urban service stations, although he considered both formulae out-dated as neither formula reflects the traffic generation characteristics of modern petrol stations and he referred to a 2013 RMS Study (RMS Trip Generation Surveys Service Stations Analysis Report, Exhibit 2, tab 8) which indicates that the daily two-way trip generation for the approved development would be approximately 1438 vehicles per day (Exhibit 4, p 2). Mr Reardon noted that the Forster District Plan referred to the RMS Guide formulae for calculating evening peak hour vehicle trips and so the 2013 RMS Study should not be used. Mr Hollyoak noted that Mr Reardon's local traffic count generated up to 151 vehicles in the peak hour which is more than the estimate using the second formula in the RMS Guide. 2. I accept the agreement of the traffic experts that the second formula in the RMS Guide is the more appropriate formula to use to calculate two-way vehicle trips during evening peak hour in the absence of a detailed Traffic Impact Assessment. The RMS Guide gives no guidance or criteria to use for choosing one formula over the other, so it is open to the applicant to simply choose the one that elicits the lower numerical value. The second formula results in an estimate of 79.2 two-way vehicle trips during evening peak hour, which the traffic experts rounded up to 80. 3. I am not persuaded that the 2013 RMS Study should be used to estimate the daily two-way trip generation of the approved development, on the evidence before me, for the following reasons: * The Forster District Contributions Plan specifically refers to the October 2002 RMS Guide, as "the updated RMS Guide to Traffic Generating Developments is used to estimate traffic generated by a development" in the absence of a Traffic Impact Assessment. (Exhibit 2, ff 155). * Under the Forster District Plan, non-residential developments are encouraged to undertake a detailed Traffic Impact Assessment to determine the estimated number of vehicles accessing a development per day. The applicant had a choice of providing a detailed Traffic Impact Assessment in support of their application or alternatively the default to use the RMS Guide to estimate the number of vehicles accessing a development per day multiplied by the 0.4 discount factor in the Forster (Exhibit 2, f 183). The Council accepted the applicant's choice to use the RMS Guide for both the development application and the modification application. * The 2013 RMS Study is of 10 service stations of which 9 are in the Sydney metropolitan area. The 2013 RMS Study states that the one regional service station was considered to be substantially different from all the other sites, due to its remote location, large site area and its function as a rest top on a major highway, to justify a separate analysis of the average trip rates (Exhibit 2, f 120). The approved development is similarly not in the Sydney metropolitan area and so the results of the 2013 RMS Study may not be necessarily any more helpful in estimating the daily two-way trip generation of the approved development than the formulae in the RMS Guide are to estimate the evening peak hour vehicle trips. * The 2013 RMS Study was not dealt with during the traffic experts' concurrent evidence or in submissions and so there is no evidence before me as to how Mr Hollyoak used the 2013 RMS Study results to reach the conclusion in the joint report that the 2013 RMS Study "suggests that the daily two-way trip generation for proposed development would be approximately 1438v/d". * The CB Report estimated the development would generate 80-100 two-way trips during peak hour (Exhibit 2, f 43) and the CB Letter, using the first formula in the RMS Guide, determined that the approved development would have 114 two-way trips during peak hour (Exhibit 2, f 55). The independent consultant accepted the use of the first formula in the RMS Guide when reviewing the CB letter and therefore the result of 114 two-way trips during peak hour (Exhibit 2, f 62). 1. On the basis of the evidence in the CB Report and the CB Letter, I accept that 80 two-way trips during peak hour is likely to be a conservative estimate, however, the traffic experts have agreed that the second formula in the RMS Guide is the more appropriate formula of the two and I accept their agreement. If Mr Hollyoak was concerned that the formulae in the RMS Guide was out-dated and resulted in a low estimate of two-way vehicle trips during the evening peak hour when compared to, for example, Mr Reardon's local traffic count of 151 vehicles during peak hour, I presume he would have articulated a preference for the first formula because, when the site and GFA are fed into the formulae, the result using the first formula is 114, which is higher than the result of 80 when the second formula is used. Daily Rate Conversion Factor 1. The traffic experts agreed that a multiplier of 10.62 is appropriate to convert the two-way vehicle trips during evening peak hour to a daily rate. According to Mr Reardon, the daily rate conversion factor of 10.62 is appropriate because the factor is derived from the recent traffic survey completed on an existing service station in close proximity to the site and because Council accepted it and used it in calculating the quantity of one-way trips in the modified version of condition 20. Mr Hollyoak accepted that a multiplier of 10 is the standard "peak hour to daily trip" multiplier and that the use of the 10.62 multiplier based on local survey data is appropriate. 2. I accept the agreement of the traffic experts that the daily rate conversion factor of 10.62 is appropriate for the following reasons: * The multiplier of 10.7 used in the CB Letter was derived from an average factor based on data collected from seven days of customer transactions from petrol stations in Forster, Taree, Gloucester and Batemans Bay (Exhibit 2, f 56). The multiplier is therefore based on actual data collected from petrol stations in the vicinity of the site and this is likely to be more accurate than the example cited by the RMS Guide (Exhibit 2, f 226). Furthermore, the RMS Guide does not mandate the 17 or 19 multiplier, it simply cites an example and notes that daily trip generation rates depend on the site's operating hours. * The independent consultant engaged by the Council to review the CB Letter agreed with the daily rate conversion factor determined by the CB letter. The independent consultant noted that the daily rate conversion factor used in the CB Letter was derived from data from four petrol stations, whereas the estimate in the RMS Guide of 17 or 19 was based on one site. He noted that "the collection and use of additional data is consistent with recommendations in The Guide" (Exhibit 2, f 60). The independent consultant used 10.7 as the daily rate conversion factor in calculating the quantity of daily two-way trips (Exhibit 2, f 63). * The Council accepted the recommendation of the independent consultant and his use of the 10.7 multiplier when granting consent to the Modification Application. 1. The traffic experts agreed on a multiplier of 10.62, rather than 10.7, and they both refer to the factor being based on local survey data. As the difference between the value to one or to two decimal places is numerically insignificant, I accept the agreement of the traffic experts that a multiplier of 10.62 should be applied to the two-way vehicle trips during the evening peak hour to convert the figure to a two-way daily rate of vehicle trips. 2. Applying the daily rate conversion factor of 10.62 to the two-way vehicle trips during the evening peak of 79.2, the result is 841.104. Dividing the two-way trips by a factor of 2, to determine the number of one-way trips per day, results in 420.552 one-way vehicle trips per day to the approved development. Non-residential discount factor 1. The discount factor in the Forster District Contributions Plan is 20%, which is equivalent to 0.4 multiplied by the one-way trips per vehicle accessing the site per day. 2. The application of the 0.4 discount factor to the one-way trips per day is based on the following assumption in the Forster District Plan (Exhibit 2, f 183): Council estimates that of all trips that a development generates, 20% have not been attributed to a levy on residential development. As such, the major road contribution for anon-residential development will be charged for 0.4 one way trips per vehicle accessing the site per day. 1. In other words, 80% of the trips to the approved development have been effectively levied via a contribution for residential development under the Forster District Plan. The application of the 0.4 discount factor is therefore a mechanism for removing the component of the trips to the approved development that can be attributed to the residential development levied under the Forster District Plan. This was referred to by the traffic experts as the "non-residential" discount factor. 2. Applying the 0.4 factor to the 420.552 one-way trips per day, results in 168.2208 non-residential one-way trips per day to the approved development. Application of a passing trade discount 1. The traffic experts agreed that the 0.4 factor for non-residential development does not "specifically reflect the percentage of generated daily trips which are considered to be 'drop-in' trips. Drop In, or pass by, trips are those existing trips within the network that are travelling on the adjacent roads which opportunistically turn into the service station." (Exhibit 4, p 3). This evidence appears to be contrary to the assumption in both the CB Letter and the independent consultant's review. 2. The CB Letter (Exhibit 2, f 57) used the first formula in the RMS Guide to determine the two-way vehicle trips during evening peak hour as 114. The CB letter used the daily rate conversion factor of 10.7, which resulted in a daily trip generation of 1220 two-way vehicle trips per day, which is equivalent to 610 one-way vehicle trips per day. A 0.3 factor was then applied to the one-way vehicle trips per day, "based on 70% passing trade", to give 183 vehicles per day. The CB letter increased the 0.4 discount factor in the Forster District Plan (Exhibit 2, f 183) to a 0.3 discount factor to exclude residential development as well as excluding one-way trips that are not attributable to the approved development. 3. The independent consultant, while not agreeing with the CB letter's increase of the discount factor of 0.4 to a total of 0.3, assumed that the 0.3 factor proposed by the applicant in the CB letter as an appropriate discount factor includes both a discount for one-way trips attributable to residential development and one-way trips that are not attributable to the approved development as they are passing trade trips, because the independent consultant did not multiplied the one-way vehicle trips per day by both 0.4 (non-residential development discount factor) and 0.3 (passing trade discount factor). The independent consultant's letter states, "I would consider this supports Council's 60% discount factor as being reasonable and in the absence of anything more definitive from the applicant to justify the 70%, I would recommend application of the Councils [sic] 0.4 factor as per the Application of the Non-Residential Developments S94 One-Way Trips Table – 18 Nov 2013" (Exhibit 2, f 60). 4. If the CB Letter quantity of one-way vehicle trips in the equation had been consistent with the evidence of the traffic engineers, the discount factor would have been 0.12, or 82%, because the discount factor of 0.4 (non-residential development discount factor) would have been applied to the total number of one-way vehicle trips per day to exclude residential development and then the discount factor of 0.3 (passing trade discount factor) would have been applied to the result to exclude the one-way trips that are not attributable to the approved development. 5. The Council submitted that the approach advocated by the agreement of the traffic engineers, to apply a discount factor of 0.4 (non-residential development discount factor) and then to apply another discount factor of 0.3 (passing trade discount factor), which is a total discount factor of 0.12, amounts to "double dipping", because the 0.4 discount factor in the Forster District Plan excludes both one-way trips attributable to residential development and one-way trips attributable to passing trade. I accept this submission. 6. The purpose of the Forster District Plan, at 1.1, is to enable contributions to be levied as a condition of consent for development that increases the demand for infrastructure in the Forster district. In other words, the purpose of the plan is to levy contributions on development that increases the demand for infrastructure in the Forster district. It was uncontroversial that the approved development will increase the demand for infrastructure in the Forster district. The approved development is therefore subject to a levy contribution under the Forster District Plan. 7. The explanation for the calculation of a contribution for non-residential development, at Section 12.1 of the Forster District Plan, must be read in the context of all of the text at Section 12.1. In other words, one cannot read, "Non-residential developments are levied for the number of additional "one-way" trips" in isolation and interpret the discount factor as removing only the residential component of vehicle trips to the development. In my view, Section 12.1 explains that non-residential development will be subject to a discount factor under the Foster District Plan that excludes all vehicle trips that are not additional vehicle trips made to the individual development. This is evident from the text, "Council estimates that of all trips that a development generates, 20% have not been attributed to a levy". The use of "a", indicates that the equation applies to an individual, non-residential development. The assumption in Section 12.1 is that a certain number of vehicle trips are made to the individual development each day and only 20% of those vehicle trips are trips that the individual development generates and are vehicle trips therefore counted for the purpose of the levy contribution. 8. I accept that the 0.4 discount factor in the Forster District Plan is a generic value, in that it is applied to all non-residential development and some non-residential uses may generate a greater number of additional vehicle trips compared to others. However, the applicant chose not to provide a detailed Traffic Impact Assessment with the development application or the modification application; and the Forster District Plan, in this circumstance, directs an assessment based on the RMS Guide estimate of peak hour trips to a service station and convenience store and the Forster District Plan provides the discount factor to be applied to those trips, to determine the additional vehicle trips attributable to the individual development. In all the circumstances of this case, there is no unreasonableness in the determination of the levy contribution using the second formula in the RMS Guide (which is, based on the documentary and expert evidence provided by the applicant, a conservative estimate); a multiplier for the daily rate based on a survey of local service stations and convenience stores; and the discount factor for non-residential development in the Forster District Plan. 9. The applicant submitted that the Court should, pursuant to the power vested in the Court under s 7.13(3) of the EPA Act, amend the levy contribution condition, condition 20, imposed under s 7.11 of the EPA Act and the Forster District Plan, because it is unreasonable, notwithstanding that the condition is determined in accordance with the Forster District Plan. The applicant submitted that condition 20 is unreasonable because a passing trade discount factor has not been applied in the equation used to determine the quantity of one-way vehicle trips applied to the agreed indexed rate. I am not satisfied that the applicant has demonstrated that condition 20 of the Development Consent is unreasonable in the particular circumstances of this case. Amended condition 20 of the Development Consent 1. A quantity of 168.2208 non-residential one-way vehicle trips per day under the Forster District Plan, rounded to the nearest whole number, 168, applied to the agreed indexed rate, results in the following levy contribution: Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under the Section 94 Development Contributions Plan Forster District of $117,156.48 and a total levy contribution of $117,955.75, at the date of these orders. 3. The exhibits, other than Exhibits 1, 3, 4, A and B, are returned. ____________ Susan O'Neill Commissioner of the Court Annexure A (497 KB, pdf) ********** 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: 18 September 2018