Land and Environment Court New South Wales Medium Neutral Citation: Karimbla Constructions Services (NSW) Pty Limited v The Council of the City of Sydney [2019] NSWLEC 78 Hearing dates: 20 and 21 May 2019 Date of orders: 21 May 2019 Decision date: 21 May 2019 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [10] Catchwords: APPEAL – Class 1 appeal from deemed refusal of modification application which sought to amend condition of development consent – condition provided for payment of local infrastructure contributions - parties reached agreement as to determination of contribution and modified wording of condition – appeal upheld Legislation Cited: City of Sydney Development Contributions Plan 2006 City of Sydney Development Contributions Plan 2015 Environmental Planning and Assessment Act 1979 (NSW) ss 7.11, 7.13 Category: Principal judgment Parties: Karimbla Constructions Services (NSW) Pty Limited (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: C W McEwen SC with S Nash (Applicant) P Clay SC (Respondent) Solicitors: Meriton Group (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2018/00176545 Publication restriction: Nil EX TEMPORE Judgment 1. Before the Court is a Class 1 appeal brought by Karimbla Constructions Services (NSW) Pty Limited ('applicant') from the deemed refusal of modification application D/2015/1901 which sought to amend a condition ('condition 3A') of a development consent granted by the Council of the City of Sydney ('respondent') in relation to land known as 5-13 Rosebery Avenue, Rosebery. Condition 3A provided for the payment of local infrastructure contributions which were determined pursuant to ss 7.11 and 7.13(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). 2. The hearing commenced yesterday and this morning the parties have indicated that subject to the Court's approval, they have reached agreement as to a determination of the contribution and a modified wording of condition 3A. 3. For the reasons I shall shortly state, I have determined that the appeal should be upheld, that development consent D/2015/1901 should be modified by deleting condition 3A and substituting in lieu thereof the form of condition 3A annexed to the Short Minutes of Order dated 21 May 2019, and that there be no order as to costs. 4. For context, s 7.11(1) of the EPA Act provides that where 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, it may grant consent subject to a condition requiring the payment of a monetary contribution. 5. Pursuant to s 7.13(3) of the EPA Act, a contribution determined under s 7.11 may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of the case, even if it was determined in accordance with the relevant contributions plan. It follows that the Court has discretion to modify condition 3A of the consent if the evidence establishes that: 1. The contribution imposed was not determined in accordance with the City of Sydney Development Contributions Plan 2006 ('CP 2006'); and 2. The contribution imposed was unreasonable regardless of whether it was determined in accordance with CP 2006. In other words, the Court is not required to apply the provisions of CP 2006 if it is of the opinion that to do so would be unreasonable. 1. Yesterday, the Court received detailed expert evidence on behalf of the applicant comprising a report of Princess Ventura, property economist and researcher, filed 6 May 2019 and a report of David Hoy, town planner, filed 7 May 2019. The respondent tendered two expert reports of Steven Hillier, researcher, dated 4 April 2019 and 30 April 2019 and an expert report of Erin Faulkner, town planner, dated 8 May 2019. The Court also received two joint reports of Ms Ventura and Mr Hillier dated 9 May 2019 and 17 May 2019 and two joint reports of Mr Hoy and Ms Faulkner dated 14 May 2019 and 20 May 2019. 2. The essential dispute between the parties relates to the actual calculation of the contribution which the respondent determined under CP 2006 in circumstances where there was a later contributions plan, the City of Sydney Development Contributions Plan 2015 ('CP 2015') which, because of transitional and savings provisions, did not apply to the site but which used a different method to calculate the various components of the contributions. 3. I have been provided with Short Minutes of Order indicating that the parties have now reached agreement in relation to specific amounts in the various categories of contribution otherwise determinable pursuant to CP 2006. 4. Having considered the expert material and the manner in which it is now agreed that condition 3A be recast, and having heard submissions from senior counsel for each of the parties, I am content to the extent that I am required to be to exercise my discretion pursuant to s 7.13(3) of the EPA Act. I find the contribution under condition 3A to be unreasonable and the contribution under the amended condition 3A to be reasonable and appropriate in the circumstances. 5. Accordingly, the Court makes orders by consent in accordance with the Short Minutes of Order dated 21 May 2019 as follows: 1. Appeal allowed. 2. Development consent number D/2015/1901 dated 23 June 2016 in respect of 5-13 Rosebery Avenue, Rosebery is modified by deleting condition 3A and substituting in lieu thereof condition 3A in the form annexed to the Short Minutes of Order. 3. There be no order as to costs with the intention that each party bear its own costs. ********** 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: 07 June 2019