Bennett R J and Anor v Bega Valley Shire Council
[2007] NSWLEC 667
•10 October 2007
Land and Environment Court
of New South Wales
CITATION: Bennett R J and Anor v Bega Valley Shire Council [2007] NSWLEC 667 PARTIES: APPLICANT:
Russell James Bennett and Mary-Lou Bennett
RESPONDENT:
Bega Valley Shire CouncilFILE NUMBER(S): 10794 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Car parking contribution LEGISLATION CITED: Bega Valley Local Environmental Plan 2002, (BVLEP)
Environmental Planning and Assessment Act 1979, ss79C, 94 and 97DATES OF HEARING: 10 October 2007 EX TEMPORE JUDGMENT DATE: 10 October 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr G W Williams, solicitor
SOLICITORS:
Thompson Norrie, MaitlandRESPONDENT:
Mr M E McMahon, solicitor
SOLICITORS:
M E McMahon & Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
10 October 2007
10794 of 2007 - Russell James Bennett and Mary-Lou Bennett v Bega Valley Shire Council
JUDGMENT
1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Bega Valley Shire Council (the council) to impose conditions of development consent in respect of a development application to demolish shops and to erect new shops at Lot 1, DP 23321, being No 65 Andy Poole Drive, Tathra.
2 The Section 34 Conference was held in Sydney. The parties have agreed to the Commissioner deciding the matter under s 34(3)(b)(ii) as no agreement was reached in respect of all the issues. The remaining issue for the Court to determine related to the amount of the car parking contribution based on the number of car parking spaces and the amount per space.
3 I have concluded that consent may issue on the basis that the applicant pay a Section 94 contribution for four spaces at $6,000 per space.
The land
4 The land is situated on the northwestern side of Andy Poole Drive, Tathra, and has an area of 727.2m2 (by deposited plan) and is triangular in plan shape. The land is relatively level and free of vegetation. Access to the land is via Andy Poole Drive. Public parking is provided in the street and an adjoining public car parking area. The land adjoins Crown reserve land to the southeast, which accommodates a public car parking area, and Taylor Reserve is located directly opposite.
5 The land is located within the main tourist/ retail precinct of Tathra.
Relevant planning controls
Bega Valley Local Environmental Plan 2002, (BVLEP)
6 Under the provisions of the BVLEP the land is zoned 2(c) Residential (Tourist) and the proposal is permissible with consent.
7 Other relevant planning instruments applying to the subject land are:
· State Environmental Planning Policy 71 - Coastal Protection, (SEPP71).
· Lower South Coast Regional Environmental Plan No. 1 and 2, (LSCREP).
· Building Code of Australia 2006 (as amended), (BCA).
· Development Control Plan No. 3 – Notification, (DCP3).
· Development Control Plan No. 7 – Parking, (DCP7) adopted on 25 July 2007.
· Section 94 contributions plan No 2 – Car parking, (CP2), adopted 3 October 2007.
The proposal and its history
8 Development application No 2006.0042 was lodged with the respondent council on 30 January 2006 to demolish shops and to erect new shops at the land.
Notification
9 In accordance with the provisions of DCP3, the application was notified for public comment on 24 February 2006 and the council received no submissions.
The council’s decision
10 As no on-site loading facilities were to be provided in the development proposal, with the agreement of the applicant, the proposal was referred to the Department of Lands seeking permission to use the adjoining Crown Reserve land to provide access to the side of the allotment for the purpose of loading and unloading activities. The application was referred to the Department of Lands on 24 July 2006 for consideration of the loading proposal via the reserve.
11 The application was reported to the council on 29 August 2006 seeking the resolution of council for staff to be given delegation to continue negotiations with the Department of Lands for alternative access for loading/ unloading purposes and should negotiations be successful, that staff be given the delegation to determine the application.
12 The council received written notification from the Department of Lands on 7 February 2007, stating that the department could not grant consent to the use of the reserve for a private commercial use as proposed.
13 The application was reported back to the council on 13 February 2007, concerning alternative on-street arrangements for loading/ unloading, requiring the dedication of a formalised loading zone on Andy Poole Drive.
14 The council resolved on 13 February 2007, to approve the application with conditions, which relate to the payment of car parking contributions in lieu of on-site spaces (Condition No. 5) and provision of a loading zone in Andy Poole Drive (Condition No. 40(b)) and relating to review of the loading facility after a year, Condition 42.
15 By notice dated 23 February 2007, the council approved the application subject to those conditions. One condition remains in dispute:
- 5. Payment to Council of the following contributions pursuant to Section 94 and Section 94B of the Environmental Planning and Assessment Act and the following Development Contributions Plans, prior to the release of the construction certificate:
a) Section 94 Contributions Plan No. 4 - Car parking Payment for provision of Car parking of a cash contribution of $80,820 prior to the release of a Construction Certificate to offset the short fall of 10 car spaces not provided on site.
b) The actual payment due will be calculated at the rate specified in Council’s adopted Fees and Charges Schedule as at the time of payment. The payments listed in this condition are as at the date of issue of this consent.
16 Other conditions that were originally in dispute and are now resolved included:
- 40. Conditions to be satisfied prior to commencement of use subject to Council acceptance.
- The following matters shall be completed prior to the commencement of use of any part of this development:
These works shall be designed and constructed in conformity with Council's Technical Specifications (or other documents formally adopted by Council for the purpose of specifying standards for construction works) as current at the date of the approval of construction plans, and sound engineering practice:
One or more Compliance Certificates must evidence the satisfactory completion of these works. See below.
- (Reason: To provide access for delivery vehicles and to minimise loss of public parking)
- 42. The loading dock arrangements as required by Condition No. 40(b) shall apply for a period of 12 months from the commencement of operation of the loading zone. After 12 months the operation of the loading zone will be reviewed by Council.
17 During the mediation prior to the conciliation process the parties reached agreement on these Conditions 40(b) and 42. The applicant agreed that Condition 40(b) may remain and the council representatives agreed that Condition 42 might be deleted.
The hearing
18 The original Class 1 application was filed on 16 August 2007 and the amended Class 1 application was filed 18 September 2007 and is now against the council’s imposition of conditions. The hearing is de novo.
19 At the hearing the Court heard evidence on behalf of the respondent council from Mr Keith Tull, town planner of Bega Valley Shire Council.
20 On behalf of the applicant evidence was given by, Mr Richard Bennett, consultant town planner of Hilltop Planners of Maitland.
21 Messrs Tull and Bennett prepared the statements of basic facts and contentions.
The contentions
22 The applicant contends that Conditions 5 should not be imposed.
23 The salient issue was the car parking contribution involving the method of calculation and the quantum.
The evidence and findings
Car parking contribution
24 There was a dispute between the parties as to the contribution for the shortfall in the number of on-site car parking spaces to be provided.
25 Mr McMahon submitted that the number of spaces should be five taking into account the need to offset the loading dock that would be in use each day for four hours 8.00am to 12 midday.
26 Mr Williams, for the applicant, submitted that the number of spaces should be limited to four as there would be a net gain of one if the existing crossover were removed. He pointed to the fact that there would be a gain of two spaces on-street, by the closure of the crossover, however, those spaces would be only available for half the day.
27 The parties asked the Commissioner to decide this outstanding issue under s 34(3)(b)(ii) as agreement had not been reached.
28 I am of the opinion there is some force in the applicant’s argument that with the removal of the crossover there is more space available on-street for kerbside parking despite there being 12m set aside at the kerb for loading and unloading for four hours in the morning. This leaves kerbside parking in the afternoon and evening for two spaces. This is a net gain in available on-street parking over that which presently exists. I consider that a contribution for four spaces would be reasonable and these four spaces would attract a s 94 contribution of $24,000 at the rate of $6,000 each. This is less per space than the council would normally require, that is $8,000. However, the additional $2,000 per space is calculated on the basis of recoupment of moneys to offset past council provision of spaces from the General Fund. I have taken into account that the $6,000 per space is more than the actual cost of providing 10-spaces recently in the adjoining council public car park. Mr Williams submitted that the actual cost of those spaces was $2,295 per space.
29 The $6,000 is the cost per space in the council’s recently adopted Section 94 plan, CP2 in Exhibit 3, for the provision of car parking in Tathra. I consider this to be a reasonable amount per space in the circumstances of the case.
30 For the above reasons, the appeal is upheld.
Conditions
31 The conditions are those in Exhibit B as amended during the hearing.
Orders
32 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2006.0042 lodged with the respondent council on 30 January 2006 to demolish shops and to erect new shops at Lot 1, DP 23321, being No 65 Andy Poole Drive, Tathra, is approved subject to Conditions 1 to 41 in Annexure A.
3. The exhibits except for Exhibits A, B, C and 4 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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