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Arkibuilt Pty Ltd v Ku-ring-gai Council

Arkibuilt Pty Ltd v Ku-ring-gai Council

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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
Arkibuilt Pty Ltd
RESPONDENT
Ku-ring-gai Council

FILE 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 123

DATES OF HEARING: 07/08/2006

DATE OF JUDGMENT:
08/18/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tomasetti
SOLICITORS
Nil
RESPONDENT
Mr M Craig QC
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

18 August 2006

10611 of 2005

ARKIBUILT PTY LIMITED
Applicant

KU-RING-GAI COUNCIL
Respondent
JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 502
Decision Date: 18/08/2006

CaseChat Overview and Summary

In the matter of Arkibuilt Pty Ltd v Ku-ring-gai Council, the Land and Environment Court of New South Wales was tasked with deciding whether the Court had the power to modify a condition imposed under s 94 of the Environmental Planning and Assessment Act 1979, and if so, whether such power should be exercised in the particular circumstances of the case. The applicant, Arkibuilt Pty Ltd, sought to modify a condition imposed on the grant of development consent, which required the payment of a monetary contribution for the provision, extension, or augmentation of public amenities and public services. The Council opposed the application on the basis that the Court lacked the power to modify the condition, and that even if such power existed, it should not be exercised in this case.

The Court held that the power to modify a condition imposed under s 94 was available in the proceedings, as the words "on appeal" in s 94B(3) of the EPA Act meant 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. The Court found that condition 69 of the development consent, which required the payment of a monetary contribution, was unreasonable to the extent that it required the new residents to fund 100% of the capital cost of the childcare centre. The Court amended the condition to require the new population to fund 14% of the cost of that centre, which yielded a total contribution of $480,940.18 from the new population. The Court also directed the parties to file, within 7 days, agreed (or competing) versions of condition 69 that reflect these conclusions.

In exercising its discretion, the Court found that there was no reason why it would not exercise its discretion in favour of the applicant, having found that, to a certain extent, condition 69 was unreasonable. The Court held that the applicant need not point to any change of circumstances in order to modify the development consent, and that the amendment of condition 69 was a modification of the development consent authorised by either s 96(1A) or (2) of the EPA Act.

Orders