Arkibuilt Pty Ltd v Ku-ring-gai Council
[2006] NSWLEC 502
•18/08/2006
Reported Decision: (2006) 148 LGERA 85
Land and Environment Court
of New South Wales
CITATION: Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Arkibuilt Pty Ltd
Ku-ring-gai CouncilFILE NUMBER(S): 10611 of 2005 CORAM: Jagot J KEY ISSUES: Appeal :- Modification application - s 94 condition - whether an "appeal" within the meaning of s 94B(3) - whether power to modify available - whether s 94 condition unreasonable LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 94, s 94(1), s 94B(3), s 96, s 97
Environmental Planning and Assessment Regulations 2000
Environmental Planning and Assessment Amendment (Development Contributions) Act 2005
Land and Environment Court Act 1979 s 17(d), s 39(2)CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685;
Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41;
Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225;
Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349;
Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGERA 236;
Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159;
Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176;
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588;
Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123DATES OF HEARING: 07/08/2006
DATE OF JUDGMENT:
08/18/2006LEGAL REPRESENTATIVES: APPLICANT
Mr P Tomasetti
SOLICITORS
NilRESPONDENT
Mr M Craig QC
SOLICITORS
Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
18 August 2006
10611 of 2005
ARKIBUILT PTY LIMITED
ApplicantJUDGMENTKU-RING-GAI COUNCIL
Respondent
Jagot J:
Introduction
1 This matter involves the following questions: - (i) is the power under s 94B(3) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) available to the Court in proceedings commenced under s 96 of that Act, (ii) if so, would a finding in favour of the applicant in the proceedings involve the Court in purporting to impose a condition pursuant to s 94(1) of the EPA Act, when such a condition may only be imposed on the grant of development consent, (iii) may and should condition 69 of development consent DA 282/05 granted by the Court on 23 December 2005 be disallowed or amended by the Court on appeal, because it is unreasonable in the particular circumstances of the case (as referred to in s 94B(3)), and (iv) in the circumstances of this case (and assuming the power to do so is otherwise available), should the Court exercise its discretion in favour of the applicant or not.
2 I have decided that the power to modify the development consent under s 96 of the EPA Act includes the power to disallow or amend a condition imposed under s 94 as referred to in s 94B(3). I have also decided that the power should be exercised in this case because: - (i) condition 69 of development consent DA 282/05 is unreasonable (to the extent described below), (ii) the Council has not raised any issue of concern about the pre-conditions in s 96(1A) or (2), and I consider that those pre-conditions have been met, and (iii) there is no matter which leads me to the view that, in the exercise of my discretion, I should decline the application.
Background
3 On 20 June 2005, the applicant commenced class 1 proceedings in this Court under s 97 of the EPA Act, appealing against the Council’s deemed refusal of development application DA 282/05. In DA 282/05 the applicant proposed to demolish five existing dwellings and to erect a residential flat development comprising 72 units with basement parking on land known as No’s 2-8 Milray Street and No 10 Havilah Lane, Lindfield.
4 On 23 December 2005, the Court upheld the appeal, and approved development application DA 282/05, subject to conditions. The conditions included condition 69, which required the payment of a monetary contribution under s 94 in the amount of $1,791,355.00.
5 Thereafter, the applicant lodged an application under s 96(1A) of the EPA Act to modify the development consent to enable the development to be constructed in stages. That application was also the subject of an appeal to this Court. On 10 April 2006, the Court upheld that appeal, and approved the modification application, subject to conditions (agreed between the applicant and the Council). The agreed conditions included a modified version of condition 69, which enabled the payment of the monetary contribution (in the same amount) in stages, reflecting the proposed staging of the development.
6 Condition 69, as modified, provides that:
A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.
TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF 66 ADDITIONAL DWELLINGS IS CURRENTLY $1,791,355.00. There are 41 additional dwellings on lot A and 25 additional dwellings on lot B. The contribution payable in respect of development of lot A shall be $1,132,476.00 and the contribution payable in respect of the development of lot B shall be $658,879.00.
The contribution in relation to Lot A shall be paid to Council prior to the release of the Construction Certificate for buildings A, B and C on Lot A and the contribution in relation to Lot B shall be paid to Council prior to the release of the Construction Certificate for buildings D, E and F on Lot B. The amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 30 June 2004, calculated for additional persons as follows:
1 Community Facilities
(If Seniors Living $412.07)2 Park Acquisition and Embellishment Works – Lindfield 3 Sportsgrounds Works 4 Aquatic / Leisure Centres 5 Traffic and Transport 6 Section 94 Plan Administration
To obtain the total contribution figure the following table of occupancy rates is to be used:OCCUPANCY RATES FOR DIFFERENT DWELLINGS SIZES
Small dwelling (under 75 sqm) 1.27 persons Medium dwelling (75 – under 110 sqm) 1.78 persons Large dwelling (110 – under 150 sqm) 2.56 persons Very Large dwelling (150 sqm or more) 3.48 person New Lot 3.48 persons SEPP (Seniors Living) Dwelling 1.3 persons
7 On 10 May 2006, the applicant lodged with the Court an “application to modify a Court granted consent” under s 96(8) of the EPA Act. Section 96(8) extends the provisions of s 96 to enable the Court to modify a consent granted by it. The application sought to modify condition 69 of the development consent by reducing the total monetary contribution from $1,791,355.00 to $1,373,824.42. In the course of the proceedings, both parties presented different total monetary contributions that they submitted ought to be accepted as the modified monetary contribution (on the Council’s part, subject to the issues raised relating to power and discretion). Hence, the applicant proposed three modified contributions ranging from $372,129.03 to $1,417,946.57, while Mr Brindle (the Council’s planning consultant) proposed a contribution in the amount of $1,753,511.22.
The Statutory Provisions
8 Sections 94(1) and (2) of the EPA Act provide that:
(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
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.
9 Section 94B of the EPA Act provides that:
94B Section 94 or 94A conditions subject to contributions plan
(2) However, in the case of a consent authority other than a council:(1) A consent authority may impose a condition under section 94 or 94A 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).
(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.
(a) the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but(4) A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.
(3) A condition under section 94 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.
10 Section 94B (in its current form) came into force on 8 July 2005, as part of the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005.
11 Section 96 provides that:
96 Modification of consents—generally
(1A) Modifications involving minimal environmental impact(1) Modifications involving minor error, misdescription or miscalculation
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6) and (7) do not apply to such a modification.
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and(c) it has notified the application in accordance with:(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
Subsections (1), (2) and (5) do not apply to such a modification.
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and(c) it has notified the application in accordance with:(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
Subsections (1) and (1A) do not apply to such a modification.(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(6) Appeals(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
…
An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.
(6A) (Repealed)(8) Modifications by the Court(7) Subsection (6) does not enable an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court.
The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.
12 Section 96AA provides that:
(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:96AA Modification by consent authorities of consents granted by the Court
(b) it has notified the application in accordance with:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(i) the regulations, if the regulations so require, and
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(1B) Development consent of the kind referred to in section 79B (3) is not to be modified unless the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent.
(1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.
(4) A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal.(3) An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.
13 When the relevant contributions plan (the Ku-ring-gai s 94 Contributions Plan 2004 – 2009 – Residential Development, effective from 30 June 2004) was approved by the Council, the Environmental Planning and Assessment Regulations 2000, in cl 27, provided that:
(1) A contributions plan must include particulars of the following:27 What particulars must a contributions plan contain?
(cf clause 26 of EP&A Regulation 1994)
(a) the purpose of the plan,
(b) the land to which the plan applies,
(c) the relationship between the expected types of development in the area and the demand for additional public amenities and services to meet that development,
(d) the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services,
(e) the contribution rates for different types of development, as specified in a schedule to the plan,
(f) the council’s policy concerning the timing of the payment of monetary section 94 contributions and the section 94 conditions that allow deferred or periodic payment,
(g) a works schedule of the specific public amenities and services proposed to be provided by the council, together with an estimate of their cost and staging.
(2) In determining the contribution rates for different types of development, the council must take into consideration the conditions that may be imposed under section 80A (6) (b) of the Act or section 97 (1) (b) of the Local Government Act 1993 .
14 The current version of cl 27(1) of the Regulation provides that:
(1) A contributions plan must include particulars of the following:
(a) the purpose of the plan,
(b) the land to which the plan applies,
(c) the relationship between the expected types of development in the area and the demand for additional public amenities and services to meet that development,
(d) the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services,
(e) the section 94 contribution rates for different types of development, as specified in a schedule to the plan,
(f) if the plan authorises the imposition of a section 94A condition:(g) the council’s policy concerning the timing of the payment of monetary section 94 contributions, section 94A levies and the imposition of section 94 conditions or section 94A conditions that allow deferred or periodic payment,
(i) the percentage of the section 94A levy and, if the percentage differs for different types of development, the percentage of the levy for those different types of development, as specified in a schedule to the plan, and
(ii) the manner (if any) in which the proposed cost of carrying out the development, after being determined by the consent authority, is to be adjusted to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date of that determination and the date the levy is required to be paid,
(h) a map showing the specific public amenities and services proposed to be provided by the council, supported by a works schedule that contains an estimate of their cost and staging (whether by reference to dates or thresholds),
(i) if the plan authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes, the priorities for the expenditure of the contributions or levies, particularised by reference to the works schedule.
Overview of submissions
Construction issues
15 First, the Council submitted that the Court had no power to disallow or amend condition 69 because: - (i) s 94B(3) enabled the Court to disallow or amend such a condition “on appeal”, (ii) the words “on appeal” in s 94B(3) mean on appeal under s 97 of the EPA Act, and (iii) these proceedings were not “an appeal”, and not an appeal under s 97 of the EPA Act, being (rather) an application to the Court to modify a development consent granted by the Court. The applicant submitted that the proceedings were “an appeal”, and nothing in the language or context of s 94(3) supported the Council’s construction of that section.
16 Secondly, the Council submitted that, by reference to the reasoning of Bignold J in Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349, the Court had no power to disallow or amend condition 69 of the development consent. The applicant submitted that the decision in Peter Duffield was not authority for that proposition and, in any event, had been overtaken by the reasoning of McClellan J in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685.
17 For its part, the applicant submitted that a childcare centre (one of the facilities to be funded by the monetary contributions) was not a public amenity or public service within the meaning of s 94(1) of the EPA Act.
Merit issues
18 The applicant submitted that the monetary contributions imposed by condition 69 of the development consent ought to be amended by the Court as they were unreasonable in the particular circumstances of the case. To support this submission, the applicant primarily relied on the evidence of Ms Robinson, planner, to the effect that: - (i) the assumptions about the number of people who would occupy dwellings in the development which founded condition 69 were flawed for two reasons and, thereby, made the condition unreasonable. Reason 1 was that the contributions plan inappropriately relied on dwelling size, instead of the number of bedrooms as the criterion for calculation. Reason 2 was that the contributions plan used unweighted average occupancy rates for all dwelling types, which dramatically overstated the occupancy rates for residential flat buildings (the subject development being a residential flat building), (ii) the condition required a monetary contribution for the acquisition of 5.82 sqm of open space for each new resident in Lindfield, when the existing open space supply in Lindfield was 3.77 sqm of open space per person. As such, the monetary contribution for open space was not one within the scope of s 94(1) but, rather, was a means to require new residents to make up for a perceived shortfall in existing open space in Lindfield, (iii) the condition imposed a monetary contribution on each new resident for a childcare centre, ignoring the facts that most of the new population would be older “empty nesters” without young children, and the Council operated only 14% of existing childcare centres in the local government area (with the private sector operating 86% of those centres). The monetary contributions imposed by the condition, however, required the new residents to fund 100% of the capital cost of the childcare centre. The monetary contribution for childcare services, thereby, was unreasonable, and (iv) these concerns were reflected in certain inadequacies in the contributions plan. In particular, the contributions plan did not show where the proposed open space to be acquired was located, and did not identify the location and timing for the provision of the childcare centre. The applicant also submitted that there was no evidence that the Council had taken into account changing circumstances that might affect the reasonableness of the condition, such as the dedication of open space within the former CSIRO site in Lindfield.
19 The Council submitted that the monetary contributions required by condition 69 were reasonable, and relied on the evidence of Mr Brindle, planner. The Council’s position was to the effect that: - (i) although in this case the number of bedrooms was a more reliable indicator of occupancy rates than the size of the dwellings, the occupancy rates which founded the monetary contributions required were reasonable. In particular, the occupancy rates proposed by the applicant would result in a substantial underestimate of the likely population of the development, (ii) the open space contribution was reasonable in that the amount of open space per person proposed (5.82 sqm) was less than the average provision across the whole local government area (6.3 sqm), (iii) the monetary contribution for the childcare centre was reasonable because the Council had made a policy decision that it would fund 100% of the demand generated by new development, leaving the private sector to meet the demand generated by the existing population (including the existing shortfall in such services), and (iv) at the time the contributions plan was approved, it complied with the requirements of cl 27 of the Regulation.
20 As noted, the Council raised no issue that the Court could or should not be satisfied with respect to the pre-conditions in s 96(1A) or s 96(2) (both of which, in my view, would otherwise be available sources of power, subject to resolution of the issues raised by the Council).
Construction of s 94B(3)
21 The Council acknowledged that there was no authority for the proposition that the words “on appeal” in s 94B(3) confined the power of the Court under that section to an appeal under s 97 of the EPA Act. The Council also acknowledged that, although s 94B(3) was a new provision, its predecessor provision (s 94(12) used the words “on appeal”, and had hitherto been assumed to make the power available in proceedings commenced under ss 97 and 96(6) of the EPA Act. This assumption, indeed, underlies a number of decisions of this Court, including Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176 (Pearlman J), and Peter Duffield itself. The Council submitted that its construction was appropriate having regard to the context of s 94B(3), in that (as I understand it) the sub-section appears as part of a sequence of provisions which point to the relevant “appeal” being an appeal under s 97 only.
22 In my view, there is no basis for construing s 94B(3) as empowering the Court to disallow or amend a condition under s 94 only on appeal pursuant to s 97 of the EPA Act. My reasons are that: - (i) the words in the section are “… on appeal”, not “… on appeal under section 97 …”, (ii) there are rights of appeal vested in applicants by the EPA Act in which the issue of the reasonableness of a condition imposed under s 94 may arise, other than appeals under s 97. These include provisions which identify the right, in terms, as “an appeal” (for example, s 96(6) and s 96AA(3)), (iii) the fact that s 96(8) does not expressly identify proceedings pursuant to that provision as “an appeal” is immaterial. The section states that the provisions of s 96 “extend” to “enable the Court to modify a consent granted by it”. Proceedings must be constituted before the Court to enable that power to be exercised. There is no rational reason to distinguish in this respect between an appeal under s 96(6), proceedings under s 96(8) or an appeal under s 97, (iv) the words “an appeal” in s 94B(3), in my view, mean 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. All such proceedings are, relevantly, “appeals” within the meaning of s 94B(3). Such provisions include s 97, s 96(6), s 96(8) and s 96AA(3), and (v) this construction is consistent with s 39(2) and s 17(d) of the Land and Environment Court Act 1979 (see also State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 at [72]).
23 Further, the Council’s construction would mean that, after the expiry of the appeal period under s 97, an applicant could apply to a council to modify a condition imposed under s 94, the Council could determine that modification application, yet the Council’s determination would be immune from merits review by the Court. In contrast, all other decisions by councils to modify (or not) development consents are exposed to merits review by the Court. Nothing in the EPA Act supports that distinction.
24 The Council’s characterisation of the present proceedings as an “application”, rather than as “an appeal”, is also without merit. All proceedings under s 96 of the EPA Act are “appeals” (s 39(1) and 17(d) of the Land and Environment Court Act 1979). This does not involve (as the Council submitted) the construction of one statute by reference to a definition in another, but the proper characterisation of the status of proceedings brought to the Court under s 96(8) of the EPA Act.
25 For these reasons, I am satisfied that I must reject the Council’s first submission. The power vested in the Court by s 94B(3) is available in these proceedings.
The Peter Duffield decision
26 The Council submitted that the decision in Peter Duffield meant that there is no power to modify a condition imposed under s 94 of the EPA Act in reliance on s 96. The applicant submitted that the decision in Peter Duffield was “no longer good law”, having regard to the decision in 1643 Pittwater Road.
27 The statement in Peter Duffield on which the Council relied (at [35]) does not support the Council’s submission. In that paragraph Bignold J said:
Accordingly, it is simply not open to the council, or on appeal to this Court, to impose on the grant of the modification application a s 94 contribution condition, and the applicant’s willingness to submit to such a condition does not overcome the obvious lack of jurisdiction or power.
28 As his Honour observed in [34], this result was dictated by the terms of s 94(1) itself – which provide that the power is available on the “grant” of development consent. As s 96(4) makes plain, the modification of development consent is not taken to be the grant of development consent. This distinction was important in the (unusual) circumstances presented to his Honour in Peter Duffield decision. The development consent authorised development comprising 32 serviced apartments and 28 units. The modification application sought to convert 28 of the serviced apartments into residential units. Under the applicable contributions plan, serviced apartments and residential units attracted significantly different contributions. If the development consent as granted had included the 28 residential units (as opposed to 28 serviced apartments), then the contribution payable pursuant would have been almost double the contribution in fact required to be paid by the condition imposed. In other words, the Council had not imposed a condition requiring a monetary contribution for the proposed 28 residential units, and the power to do so was not available pursuant to s 96 (because to modify the development consent was not to grant the development consent as referred to in s 94(1)). In consequence, Bignold J determined that the modification application ought to be refused in the exercise of discretion. His Honour’s reasoning process should not be construed as suggesting that there is no power to modify a consent, by disallowing or amending a condition imposed under s 94. To so modify a consent is not to “impose” a condition under s 94 at all. The facts in Peter Duffield were unusual (in that the modification application sought to alter the development purpose altogether). There are no equivalent facts in this case. The applicant seeks to do nothing more than amend the already imposed s 94 condition. Accordingly, I do not accept the Council’s submission in reliance on the decision in Peter Duffield.
29 With respect to the applicant’s submission (that 1643 Pittwater Road means that Peter Duffield is no longer good law), it is sufficient for me to observe that I do not consider that those decisions intersect at all. In 1643 Pittwater Road, McClellan J was not concerned with the relationship between s 96 and s 94. His Honour’s observation at [41] (that conditions may be imposed by the consent authority when determining an application for modification) should be understood as a reference to conditions of the approval of the modification application. His Honour was not dealing with s 94 conditions and, in my view, should not be understood as having held that a condition under s 94 may be imposed on the approval of a modification application.
30 For these reasons, I am satisfied that the applicant (by a modification application under s 96(8)) seeks that the Court amend a condition under s 94 on appeal within the meaning of s 94B(3), and that the Court is empowered to do so by that section in proceedings under s 96(8), and subject to the provisions of s 96 itself.
32 This submission is answered by the reasoning of Stein J in Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123, referred to with approval by the Court of Appeal in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 at [56] – [62]. In Stockland , the issue was whether the Council’s administrative offices and technical services depot fell within the statutory description “public amenities and public services”. The applicant submitted that, for the most part, the public would access none of these facilities. Stein J observed in his reasons:31 The applicant submitted that the childcare centre identified in the contributions plan did not fall within the concept of “public amenities and public services” as referred to in s 94(1) of the EPA Act, because such an amenity or service would not be available to all (and, thereby, would not have the requisite “public” character).
On behalf of the Council, Mr McEwen submits that there is no need for the Council to demonstrate a direct ability of the public to use a service or amenity. Just as the public may be excluded from a works depot, so they will be from a council plant nursery, a sportsground store, parts of a library, child care centre or waste treatment plant etc. Mr McEwen says that a building or facility can provide a public amenity or public service without the public having access to the facility or building as of right. I accept this submission. It accords with common sense. What is however important is the public benefit provided by or from the facility, not necessarily its physical accessibility to the public.
As Mr McEwen observes, neither phrase `public amenities' or `public services' is defined in the Act. The only reference to actual amenities or services is in s94(9) viz water supply or sewerage works.
Should the phrase public services or amenities be construed in a broad or narrow fashion? It is reasonable to note that the services and amenities provided by local government over the last 100 years have changed dramatically, mirroring the changes in society and its growing complexity. What may not have been regarded as a public service or amenity 20 years ago may today be readily accepted as such eg a child care centre.
…
Many of the commonly accepted examples of public amenities and services under s94 include a capital cost component to fund the building of a facility from which the public service or amenity will be provided. In my opinion, so long as a facility is operated or used for the benefit of the public, it provides a public service or public amenity. It seems to me to be illogical to exclude facilities which may enable the provision of a public amenity or public service merely because they emanate from council administrative offices or a technical works depot. Taking the applicant's argument to its logical conclusion would mean that part of, say, a child care centre or library which housed administration, would not qualify under s94 as a public service or amenity but the balance of the facility would. This highlights the illogicality of applying a narrow construction to the phrase.
A broad construction of the phrase `public amenities and public services' should not be a matter of concern because of the extensive accountability provisions built into the Act. For example, a development needs to be likely to result in an increase in the demand for public services or amenities (s94(1)) to qualify for a contribution. The contribution, of course, has to be a reasonable one for the provision, extension or augmentation of the public services or amenities (s94(2)). A contribution must also satisfy the Newbury tests of validity: * be for a planning purpose * fairly and reasonably relate to the development (the nexus test) * be reasonable.…
33 I adopt these reasons. The childcare centre proposed in the contributions plan is to be operated or used for the benefit of the public (whether or not all members of the public will or may make use of the centre) and, accordingly, falls within the concept of “public amenities and public services” in s 94(1) of the EPA Act.The contributions plan generally
34 The contributions plan applies to all forms of new residential development in the Ku-ring-gai local government area (p 1). The plan anticipates an additional population of 4,998 people in the local government area in the period 2004 to 2009 (that is, an increase from 109,824 people in 2004 to 114,823 people in 2009). The plan also anticipates that the dominant form of new residential development (accommodating this expected new population) will be multi unit dwellings, in accordance with the Council’s Residential Development Strategy. The plan records that between 2000 and 2003, 43% of the dwellings approved in the local government area were in the form of aged housing, 35.9% were separate houses, 16.5% were dual occupancies and only 5% were flats. The plan anticipates that aged housing development would be likely to “slow due to decreasing availability of suitable sites” (p 36), and that the increase in dwellings predicted will be strongest in the “other dwelling” category (which includes multi unit dwellings), rather than the “houses” category (p 37). The population projections underlying the contributions plan reinforce this expectation for the period 2004 to 2009, with the number of additional “other” dwellings far exceeding the number of additional “houses”.
35 The contributions plan identifies the s 94 contribution rates by dwelling size for various precincts within the local government area. Relevantly, for Lindfield (the precinct within which the subject development is located), the contributions plan identifies the following rates:
No. persons/ Dwelling
Lindfield Per Person $10,937.57 Small dwelling (under 75 sq.m) 1.27 $13,890.72 Medium dwelling (75 – under 110 sq.m) 1.78 $19,468.88 Large dwelling (110 – under 150 sq.m) 2.56 $28,000.18 Very large dwelling (150 sq.m or more) and New Lot subdivision 3.48 $38,062.75 SEPP (Seniors Living) Housing 1.3 $13,301.45
Occupancy rates36 Mr Brindle and Ms Robinson agreed that, in the particular circumstances of this case, it was more appropriate to determine contribution rates by reference to the number of bedrooms, rather than dwelling size. Mr Brindle explained that the layout and design of each unit in the development was such that there were no rooms, other than those identified as bedrooms, that could readily be adapted for use as a bedroom. As such, Mr Brindle accepted that a reasonable contribution under s 94 for the subject development would be calculated in accordance with the contributions plan as follows:
Table 5: Calculation of s 94 Contribution in Condition 69 – Revised
Contribution per person Occupancy Rate No. of Dwellings Total Contribution $10,937.57 $233,626.50 $10,937.57 $1,596,010.21 $10,937.57 $114,188.23 $10,937.57 -$190,313.72 (credit) Total $1,753,511.22
37 This table discloses that, in Mr Brindle’s opinion, the reasonable estimate of the number of people who will occupy the development is 160.32 (that is, $1,753,511.22 $10,937.57). The s 94 contribution imposed by condition 69 assumed that nearly 164 people would occupy the subject development.38 Given that both the experts agreed that, for the subject development, the number of bedrooms (rather than dwelling size) was a more appropriate measure of the number of people who would occupy the development, I am satisfied that condition 69 should be amended to that extent under s 94B(3) (because it would otherwise be an unreasonable condition in the particular circumstances of this case). As held in Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159 at [48], “unreasonable” takes its ordinary meaning, and is not confined to Wednesbury unreasonableness.
39 In Ms Robinson’s view, condition 69 was also flawed because it was founded on assumed occupancy rates calculated by reference to the unweighted average occupancy rates for all dwelling types, including separate houses (which had a much higher occupancy rate than flats/apartments). Ms Robinson said that the reasonable estimate for the number of people who would occupy the subject development was 129.64 (based on ABS 2001 data for flats/apartments only). Ms Robinson considered other population projections (including from information collated by the Council and its consultants for the preparation of the contributions plan), and noted that those references would support an estimated number of occupants ranging from about 68 to 109 people (providing support to her 129.64 people estimate as generous). Ms Robinson observed that the subject development was likely to be occupied by “empty nesters” (either older couples or single older people), and not families. As such, Ms Robinson was of the opinion that condition 69 was founded on a significant and unreasonable overestimate of the likely population to be generated by the development.
40 Mr Brindle agreed that the contributions plan used the average occupancy rate for all dwellings from the 2001 census. In table 7 of his statement, Mr Brindle set out the occupancy rates for flats/apartments (bed sitters to five or more bedrooms) applied by Willoughby, Woollahra, North Sydney and Ku-ring-gai Councils, against the occupancy rates suggested by Ms Robinson. Mr Brindle observed that “the occupancy rates that the applicant states should be used in Ku-ring-gai are generally lower than all other Councils indicated in the table, particularly for the two and three bedroom units that are proposed in the development application that is the subject of the modification application”, but that the rates adopted in the contributions plan for Ku-ring-gai were generally comparable, and below those occupancy rates for the adjoining local government area (Willoughby).
41 Mr Brindle said that the use of average occupancy rates for all dwellings by bedroom types was justified for the Ku-ring-gai local government area because: - (i) the number of flats/apartments as a percentage of total dwelling stock is low in Ku-ring-gai, particularly three to five bedroom flats, making the data set for such dwellings limited, (ii) the existing supply of flats/apartments in Ku-ring-gai was constructed during the 1960’s and 1970’s, being dwellings modest in size, with lower amenity and few facilities (in contrast to the development anticipated under the contributions plan and encouraged by the current planning controls, and of which the subject development is an example), (iii) in recent years, a high percentage of multi unit housing applications in Ku-ring-gai were seniors housing, which generally have lower occupancy rates (further skewing the limited statistics available), (iv) the development anticipated by the contributions plan is part of the State government’s urban consolidation initiatives, seeking to provide 60 – 70% of new housing in existing urban areas, mostly by multi unit housing, (v) current planning controls seek to ensure that this multi unit housing accommodates a variety of household types, attractive to a broad range of people, including families, (vi) the location of the subject development, which has good access to a range of high quality public and private schools, will be attractive to families. This expectation is also consistent with the applicant’s own sales material, (vii) demographic trends indicate an increase in the number of children and young adults in Ku-ring-gai, and (viii) occupancy rates for flats in Ku-ring-gai have shown an upwards trend.
42 Mr Brindle concluded that, for these reasons, he was firmly of the view that to use the 2001 census occupancy rates for flat/apartments as the basis for determining the expected population of apartment buildings to be constructed under the Residential Development Strategy (underpinning the contributions plan), would underestimate the population and, thus, understate the demand for the provision of public facilities and amenities created by the development. Mr Brindle said that the use of the average occupancy rates for all dwellings provided a “transparent, accountable and robust method of determining the population living in a proposed development that would require the provision of public facilities or amenities”.
43 In my view, Mr Brindle’s opinions in this respect are sound. The contributions plan applies to all forms of new residential development, but states that the increase in population anticipated by the plan will largely be accommodated in multi unit housing (to be implemented as part of the Council’s Residential Development Strategy). It was reasonable for the Council to expect that the form of multi unit housing encouraged by its strategy (and the specific planning controls applying to such development) would yield residential development suitable for occupation by a broad range of the community (in contrast to flats/apartments developed in the 1960’s and 1970’s, which form the bulk of the area’s current stock of flats/apartments). Further, in circumstances where flats/apartments have been such a small proportion of the area’s overall dwelling stock, I consider that it was reasonable for the Council to have anticipated that the new development would be occupied by more people than the current stock of flats/apartments, and that (thereby) the average occupancy rates for flats/apartments in the 2001 census would underestimate the new population.
44 The applicant has not presented any evidence that would support an inference that the Council’s expectations, in fact, have proved to be unreasonable (presumably, because there is insufficient data from the new development to do so at this time). For the reasons given by Mr Brindle, however, I am satisfied that condition 69, insofar as it assumes that just over 160 people will occupy the subject development, is not unreasonable in the particular circumstances of the case.
45 As Mr Brindle also recognised, the contributions plans must be subject to ongoing review (see cl 33A of the Regulation). If a material disparity between the Council’s expectations and actual occupancy rates in new development becomes apparent, then the Council could be expected to review and amend its contributions plan as appropriate to ensure that the contributions it seeks to authorise are reasonable (s 94(2)) and not amenable to being disallowed or amended by the Court on appeal because “unreasonable in the particular circumstances” (s 94B(3)). As Santow JA observed in Rose Consulting at [37], a council that maintains a plan purporting to mandate unreasonable conditions, will be exposed to successful challenge on appeal. There is no evidence from which I infer that the Council in this case has purported to maintain a plan that mandates unreasonable s 94 conditions in terms of expected occupancy rates for the subject development. The required process of review should disclose whether or not this remains so throughout the life of the contributions plan.
Open Space
46 The contributions plan divides the local government area into various precincts. The subject development is located in the Lindfield precinct. According to section C2 of the contributions plan: - (i) excluding regional parkland, there is 6.3 sqm of open space (parks) per person in the area, (ii) this provision of open space (0.63 hectares per 1000 people) is relatively low, and unevenly distributed, with some areas (such as Roseville, Lindfield and Gordon) having less than this area average. Lindfield, for example, has only 3.77 sqm of parkland per person, (iii) it would be desirable to acquire open space at least at the current (relatively low) per capita level of provision for the area as a whole, (iv) because of the high cost of land in the area, no contributions will be levied for the acquisition of additional active open space (sports fields and courts), but existing facilities will be embellished to make them “work harder”, (v) for parkland open space, a different approach is required, based on “differential acquisition by precinct” (due to the uneven distribution of such open space throughout the area), (vi) the differential acquisition is to be based on a “weighting factor” which discounts proposed acquisitions at the precinct level according to a deemed appropriate benchmark (being 5.82 sqm per person), and differences between precincts in terms of both the existing quantity and accessibility of open space. For the Lindfield precinct (with only 3.77 sqm of parkland presently per person, and an expected population increase in the period 2004 to 2009 of 910 people), there is no discount from this benchmark, so the per person land requirement acquisition is 5.82 sqm (or 5,296.20 sqm), at an estimated cost of $6,715,582 (that is, $7,379.76 per person). Paragraph 27.73 of the contributions plan provides that the Council is to commission an open space acquisition planning study to identify sites for acquisition, and to ensure that the new open space is appropriately configured to meet the open space needs of new residents.
47 In Ms Robinson’s opinion, the requirement for each new resident to fund the acquisition of 5.82 sqm of open space was unreasonable in that: - (i) the contributions plan was “levying an open space acquisition rate that is 2.03 sqm or 54% higher than the existing rate of open space provision”, and (ii) the Council is thus “asking new residents in new dwellings to make up for a perceived shortfall in existing public open space in Lindfield”. Ms Robinson concluded that it was reasonable to levy new residents only at the rate representing the cost of acquiring 3.77 sqm of open space per person. Ms Robinson also noted that the contributions plan did not identify the location of any open space to be acquired and, thus, did not comply with cl 27(1)(h) of the Regulation, and was otherwise unreasonable.
48 In Mr Brindle’s opinion, the policy underlying the contributions plan was maintenance of the existing supply of open space per person over the entire area. The deemed benchmark adopted by the contributions plan of 5.82 sqm per person of local open space, in fact, was below the existing level of supply (6.3 sqm per person). Precinct based acquisitions addressed the uneven distribution of open space throughout the area. To levy at the rate of 3.77 sqm per person would perpetuate an under provision of such open space in Lindfield. The rate adopted by the contributions plan (5.82 sqm per person or 0.582 hectares per 1000 people) could also be compared to the rate often used of 2.83 hectares per 1000 people.
49 I accept Mr Brindle’s opinions. I disagree with Ms Robinson’s view that the contributions plan (and, more specifically, condition 69) is asking new residents to make up for a perceived shortfall in existing open space in Lindfield. In circumstances where the existing provision of open space throughout the local government area is 6.3 sqm per person, but the Council perceives that open space to be unevenly distributed, the contributions plan (which weights the open space acquisitions on a precinct basis), does not lead to unreasonable s 94 conditions being imposed. In my view, the facts are analogous to those which arose in Security Storage , in which Pearlman J accepted a submission that local deficiencies in open space provision do not amount to an overall catchment deficiency, and that, if a council sought to levy new residents at the same rate as the existing provision in the area, then “the contribution attributable to the increased population is clearly attributable to increased demand and not existing demand” (at 183).
50 Ms Robinson’s reference to cl 27(1)(h) also does not support the conclusion that condition 69 is unreasonable. At the time the contributions plan was made, the Regulation did not include that clause. The Council identified the area within which the open space was to be provided, the amount of open space to be provided, and its cost, which was sufficient (in my view) to discharge the Council’s obligations at the time. Mr Brindle also said that the Council’s open space acquisition planning study (as referred to in paragraph 27.73 of the contributions plan) was underway.
51 As such, I am satisfied that, to the extent that condition 69 includes a s 94 contribution with respect to open space, the condition is not unreasonable.
52 The applicant tendered a copy of a plan of the CSIRO site, which shows an area (lot 31) as open space to be dedicated to the Council. That area appears to exceed the amount of open space identified by the contributions plan for acquisition in the Lindfield precinct. Mr Brindle said that he was aware of the site, but that the location of this open space was unlikely to accord with the Council’s planning objectives for the Lindfield precinct (that is, for open space to bear an appropriate relationship with development to be focused along the public transport spine). The applicant acknowledged that the evidence about the open space dedication did not enable me to draw any inference that the open space needs of the Lindfield precinct had been satisfied by this dedication (assuming it to have occurred). I agree. The plan alone cannot support that inference. The observation of Santow JA in Rose Consulting at [37] (referred to above), nevertheless, remains apt; on review of the contributions plan, it seems to me that any such dedication should be considered by the Council.
Child Care Centre
53 The contributions plan authorises the levying of contributions to enable the Council to develop a 46 plus place multiple purpose childcare centre “to meet the needs of new residents between 2000 – 2009”. The estimated total capital cost of the centre is $3,435,287, which is to be levied (100%) on the total additional population anticipated (4,998 people) (that is, just over $687 per person).
55 At paragraph 21.22, the contributions plan states that:54 The contributions plan identifies: - (i) an anticipated growing population of children and young people (0 – 15), (ii) an existing shortfall in childcare services, with only about 80% of demand met (for example, in 2004, 1,014 childcare places were required, but only 807 places were available, leaving a shortfall of 207 places), (iii) strong demand for childcare services, (iv) that private providers presently supply 86% (12 of the 14 services) of long day care centres in the area, and (v) reliance on private providers has not enabled the demand for childcare services to be met and “the expectation that private providers will supply the shortfall of 253 long day care places for Ku-ring-gai in the near future is unlikely to eventuate based on the history of development over the past 7 years” (at paragraph 21.12). As such, the Council determined to develop a new childcare centre to meet the needs of the new population. On the adopted rate (that is, one full time long day care place for every three children who have either both parents or a sole parent working, studying or training, and are not enrolled at school), the anticipated new population of 4,998 people would generate the demand for 46 childcare places.
It is important to note that the application of this standard is not intended to fulfil the existing backlog in places, only to meet the needs of new residents. While it of course cannot be guaranteed that only new residents will fill these places, and that new places will not be provided by the private sector that will be used by new residents, the centre being levied under s 94 will help to ensure that this backlog is not further increased by new residents. This is considered important given that the provision of new places by the private and other sectors is not keeping pace with the current increase in demand. Any increase in private centres will therefore only help to fill the backlog.
56 Ms Robinson (in addition to observing that the location and timing for the provision of the childcare centre had not been stated in the works schedule) observed that: - (i) according to the 2001 census, 96% of children in the 0 – 14 year old age group live in separate houses, and only 2.13% live in flats, units or apartments, (ii) only 1.91% of flats, units or apartments are occupied by families with children, and (iii) in any event, only 14% of existing childcare centres in Ku-ring-gai are operated by the Council.57 Mr Brindle said that: - (i) the 96% statistic was immaterial, because the same census data showed that 91% of all people in the area lived in separate houses, (ii) the 1.91% figure was incorrect (it was more like 8%), but immaterial because the type of development represented by the subject development would not be limited to “empty nesters” and would be attractive to a broad section of the community, with every likelihood of children residing in the development, (iii) the purpose of the residential strategy was to provide multi unit housing attractive to a broad range of people within the community in order to achieve urban consolidation objectives, and (iv) it was a policy decision of the Council to determine that it would fund 100% of the childcare needs of new residents (by the new centre), leaving the private sector to deal with any backlog.
58 The applicant submitted that this “policy” decision of the Council involved “semantics”. That is, in circumstances where there was a known deficiency in childcare services, and where such services were overwhelmingly provided by the private sector (rather than the Council), it was artificial for the Council to suggest that it would meet 100% of the childcare needs of new residents.
59 I am satisfied that: - (i) Mr Brindle’s view is correct insofar as he concluded that the information from the 2001 census could not appropriately found an opinion that the rate of the levy was unreasonable (that is, that a population of 4,998 people would not generate a need for 46 childcare places), but (ii) the applicant’s submission that the “policy” decision of the Council (that the new population fund 100% of the childcare centre) was unreasonable, should be sustained. I give my reasons below.
60 In my view, Mr Brindle’s approach to the 2001 census data is appropriate because the contributions plan anticipates development in the form of multi unit housing, which is different from the existing dwelling stock within the area. As the contributions plan discloses, the existing dwelling stock in the local government area is mainly separate houses. The flats and apartments are older style developments, and (I infer) not well suited to accommodate people with children. As such, the statistic that 96% of children live in separate houses seems to me to be immaterial in circumstances where 91% of people overall in the local government area also live in separate houses. The purpose of the residential strategy is to introduce within the local government area a new form of residential development (multi unit housing) that will attract a much broader range of people into flats and apartments. For this reason, the 1.91% (or about 8%) statistic (representing flats and units occupied by a family with children) also does not point to the contribution being unreasonable. If, as here, the Council has sought to foster a new type of residential development which will be suitable for occupation by families with children, then it was not unreasonable for the Council to use occupancy rates for all dwellings to estimate the number of new residents (see above), and to apply to that number the Department of Family and Community Services rate of provision. In other words, on the face of it, I accept that it was reasonable for the Council to estimate that a new population of 4,998 people will or is likely to create a demand for 46 childcare places.
61 The next question is whether it was reasonable (or unreasonable) for the Council to impose condition 69 (in accordance with its plan) to require the new population to fund 100% of the capital cost of a 46 plus space childcare centre in the circumstances disclosed by the contributions plan (and where I have no evidence that such circumstances have altered).
62 A s 94 condition may be imposed where development “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”, but any such condition must nevertheless “be imposed only to require a reasonable … contribution for the provision, extension or augmentation of the public amenities and public services concerned”. An “unreasonable” s 94 condition is one that may be disallowed or amended on appeal. The contributions plan discloses that: - (i) 86% of long childcare places are provided by the private sector, rather than the Council, (ii) there is an existing (and material) shortage of childcare services in the local government area, (iii) it cannot be expected that the private sector will meet the new demand, as it has not fully met the old demand, and (iv) it can be expected that old residents will use the new childcare centre, and that new residents will use the private sector services. Nothing in the contributions plan indicates any expectation of a material change in the overall proportion of private and Council provision of childcare services. The Council has made a decision (that is, provide a childcare centre). That was a policy decision for the Council. The Council has also decided to fund the provision of that centre through s 94 contributions. That decision is subject to review on appeal (s 94B(3) of the EPA Act).
63 I am satisfied that condition 69 (to the extent that it includes a contribution from each resident representing a proportion of 100% of the capital cost of the childcare centre) is unreasonable. It is unreasonable because, although the new population (4998 people) will or is likely to generate the demand for 46 childcare places, on the basis of the information in the contributions plan (which is the same information as made available in the hearing): - (i) given the material shortage of childcare places in the area (at least 207 places, or 4.5 times the number of places required by the new population), some (probably many) of the places in the new childcare centre will be used by the old population (109,824 people), and (ii) given the substantial involvement of the private sector in providing long childcare places in the area (86% overall, with no information put before me about a likely change in that ratio of provision), some (perhaps most) of the childcare centre demand generated by the new development will be met by the private sector. In other words, despite what the contributions plan says, the Council will not be meeting 100% of the demand created by new residents by providing the childcare centre. The childcare centre the Council required the new residents wholly to fund, will not satisfy a demand created wholly (or, indeed, even largely) by these new residents.
64 In the face of these facts, the notional allocation of the existing shortfall of childcare places to the private sector, and the notional attribution of the demand to be met by the Council as referable only to the demand generated by the new population, is artificial. The result (100% allocation of the cost of the new childcare centre to the new population) is unreasonable. A reasonable condition would necessarily involve apportionment (by some rational and equitable method) of the capital cost between the old population and the new population, and/or between demand likely to be met by the private sector and the Council. The Council has not attempted any such apportionment, but has imposed on the new population the full cost of the new childcare centre.
65 Leaving aside the issue of discretion, the question then is whether the condition should be disallowed (to that extent) or amended. Because I am satisfied that the development will or is likely to generate a need for childcare services, I consider that I should amend condition 69 to ensure that it is reasonable if I am able to do so on the evidence, rather than disallow the child care contribution altogether.
66 On the basis of the information available in these proceedings (and consistent with a calculation carried out by Ms Robinson), a reasonable inference that I may draw is that the private sector will continue to be involved in providing long childcare places, most likely to a similar extent as identified in the contributions plan (that is, 86%). In circumstances where the new childcare centre is to be a multi-purpose building fulfilling a range of childcare needs (and not just long day care places), I am satisfied that requiring the new population to fund 14% of the cost of that centre is reasonable (or not unreasonable). This 14% yields a total contribution of $480,940.18 from the new population. This equates to a contribution per person of $96.23. On an assumed population for the subject development of 160.32 people, the s 94 contribution for childcare services would be $15,427.60. Condition 69, if amended in this respect, would not be unreasonable.
67 It should not be assumed that, by the calculation above, I am purporting to determine the only method of apportionment that would yield a reasonable contribution for childcare services. I have done no more than identify the extent of contribution for the subject development that I am satisfied is reasonable on the evidence available in these proceedings. My conclusion about condition 69 does not in any way fetter the Council’s capacity to amend its s 94 contributions plan to ensure that it may impose s 94 conditions for childcare services calculated by other methods, which are themselves reasonable. That exercise remains a matter for the Council to carry out, having regard to all the information available to it at the time it reviews its contributions plan.
Discretion
68 The Council submitted that the discretionary power in s 94B(3) of the EPA Act should not be exercised in the applicant’s favour (if condition 69 was found to be unreasonable to any extent) because the applicant had taken the benefit of the development consent knowing about the s 94 contributions payable and, thereafter, had modified the development consent without, until recently, raising any issue about the s 94 contributions. The Council said that there had been no change of circumstances since the grant of development consent. Hence, the facts were analogous to those in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGERA 236, where Bignold J (at 245) found that although the power in s 102 (then the relevant modification power) was not limited to cases in which circumstances had changed, a discretionary consideration that weighed strongly against granting the application in that matter was the conduct of the applicant in accepting the benefit of the development consent, and then belatedly seeking to avoid the burden imposed by that consent. Bignold J determined that it would be contrary to the public interest to enable the particular consent in that matter to be modified as sought.
69 In Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, Cripps AJA (with whom Spigelman CJ and Santow JA agreed) observed (at [82] to [84]) that it was one thing to assert that a party who has accepted the benefit of a transaction must accept its burden, and another to conclude that a condition not authorised by law cannot be challenged if development is carried out. Delay may be a relevant discretionary factor, but there is evident difficulty in attempting to apply any “benefit/burden” doctrine in planning law.
70 In this case, the Court granted the development consent. It seems to me there may be many reasons why, in that context, an applicant may not place in issue the s 94 contributions during the s 97 appeal. I do not consider that an applicant, thereafter, is necessary precluded from seeking to modify s 94 conditions by not having raised the issue during the s 97 appeal. Further, the applicant became aware, only relatively recently, that the Council itself had agreed to the modification of a s 94 condition imposed on a nearby development, which reduced the overall s 94 contributions payable by some 25%. The applicant said that, if necessary, that fact itself constituted a relevant change of circumstances. Consistent with the reasoning in Progress and Securities , I agree that the applicant need not point to any change of circumstances in order to modify the development consent. In the particular circumstances of this case, I can see no reason why I would not exercise my discretion in favour of the applicant, having found that, to a certain extent, condition 69 is unreasonable.
Conclusion
72 Hence, I am satisfied that the appeal should be upheld and that condition 69 should be amended in order to reflect: - (i) an underlying population of 160.32 people, and (ii) a contribution for childcare in the amount of $96.23 per person. Otherwise, I am satisfied that condition 69 is not unreasonable, and accords with the requirements of s 94(1) and (2) of the EPA Act. I direct the parties to file, within 7 days, agreed (or competing) versions of condition 69 that reflect these conclusions.71 I am also satisfied that the amendment of condition 69 is a modification of the development consent authorised by either s 96(1A) or (2) of the EPA Act. The Council has not suggested that such an amendment would have anything other than “minimal environmental impact”, or that I should not be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all). I am so satisfied. Otherwise, I assume that the Council has complied with any notification obligations (having regard to the terms of s 96(8), and the absence of any suggestion to the contrary in these proceedings).
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