Ballina Central Properties Pty Ltd v Ballina Shire Council

[2006] NSWLEC 480

Land and Environment Court

of New South Wales

CITATION:

Ballina Central Properties Pty Ltd v Ballina Shire Council [2006] NSWLEC 480

PARTIES:

APPLICANT
Ballina Central Properties Pty Ltd

RESPONDENT
Ballina Shire Council

FILE NUMBER(S):

10966 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Construction of a retail shopping complex, amount of section 94 road contributions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ballina Local Environmental Plan 1987

DATES OF HEARING:

03/08/2006

 
DATE OF JUDGMENT: 

08/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Young, solicitor
SOLICITORS
Bourke Love Mccartney Young

RESPONDENT
Ms F Rourke, solicitor
SOLICITORS
Allens Arthur Robinson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

3 August 2006

10966 of 2005 Ballina Central Properties Pty Ltd v
Ballina Shire Council
JUDGMENT

This decision was given extemporaneously

and has been revised and edited prior to publication.

1 I understand from the Statement of Basic Facts that the proposal involves the development for the construction of a retail shopping complex incorporating two major retail stores, speciality shops, advertising structures, 615 on-site car parking spaces, earthworks, landscaping works, with vehicular access to Kerr Street and Bangalow Road, Ballina. Also that the development consent was granted for the proposal by the council on 26 August 2004 subject to conditions.

2 These proceedings now involve an appeal against council refusal to allow a s 96 modification to conditions of consent 3.4 and 3.5 which require s 94 contributions towards various road works improvements. However, Condition 3.5 has not been pursued.

3 For this appeal the parties agreed to the appointment of Mr G Shiels as a Court-appointed for planning and traffic issues and he prepared a detailed assessment of the appeal matter in his report, which is dated July 2006. He concluded that the assessment of the matter was complex because of the involvement of other parties, particularly the RTA. The complication arises due to separate funding and construction roles for some of the roads to which the s 94 contributions were sought.

4 Nevertheless after considering the available evidence, including another independent assessment by Mr Michael Whelan, Mr Shiels said that the following three options are:

1. To endorse the council’s conditions for payment of contribution;

2. To endorse the principle of the council’s argument that some contribution should be made for improvements to the local road network at an amount to be determined, or

3. To accept the applicant’s argument that the amount paid to the RTA should be considered as a section 94 road contribution for the proposal.

5 Following consideration of this assessment, the parties have apparently conferred further and reached an agreement to consent orders that the total s 94 contribution for the road works should be for the amount of $137,000.

6 Taking into account the detailed chronology of events in Mr Shiels’ report and his detailed traffic assessment related to the variable costs associated with the subjective assessments in the s 94 works schedule, I am satisfied that the agreement between the parties represents a reasonable s 94 contribution for the associated road upgrading, which the patrons of the subject development will receive some benefit. Therefore the consent should be granted.

7 Therefore the orders of the Court by consent are:

1. The appeal is upheld.

2. The consent granted by the respondent to development application 2004/2056 and dated 1 September 2004 is varied as follows:

(a) Condition 3.4 is deleted and replaced with the following condition:

3.4 The Applicant shall make a contribution in the amount of $137,000.00 for the provision of shire wide road infrastructure.
(b) Condition 3.5 is deleted.

Note : Each party agrees to bear their own costs.

___________________
R Hussey
Commissioner of the Court
rjs