Bennette v Byron Council

[2004] NSWLEC 565

Land and Environment Court

of New South Wales

CITATION:	Bennette v Byron Council [2004] NSWLEC 565
PARTIES:	APPLICANT Jerry Lee Bennette RESPONDENT Byron Shire Council
FILE NUMBER(S):	11508 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- s 94 contributions reasonableness of contributions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 94 Byron Shire Council Section 94 Development Contribution Plan
CASES CITED:	Peterson v Parramatta City Council (1987) 61 LGRA 286; Frevcourt v Wingacarribee Shire Council (1993) 80 LGERA 75; Toadella Co Pty Limited v Dumaresq Shire Council (1992) 78 LGERA
DATES OF HEARING:	23/09/04
DATE OF JUDGMENT:	10/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Self represented RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

22 October 2004

11508 of 2003 Jerry Lee Bennette v Byron Shire Council

JUDGMENT

Background

1 This is an appeal against the imposition of condition 24 of Development Approval No. 10. 2003.230.1 granted by Byron Shire Council (the council) on 23 March 2004 for the subdivision of land known as part lot 17 DP 270338 Kalemajere Drive and Sallywattle Drive, Suffolk Park (the subject site).

2 The subject site comprises an area of 1.007 hectares and constitutes the final 19 lot subdivision of this particular precinct of Suffolk Park. The lots are identified as lots 23 to 32 and lots 33 to 41 and are shown on Attachment 1. Over a period of around 15 years, the applicant has obtained 11 development consents on land adjoining the subject site and in the general area.

3 The matter was heard as an On Site Hearing although the proceedings were largely conducted at the Byron Bay Court House because of the technical nature of the issues. A view of the subject site and surrounding area was undertaken during the hearing with representatives from both parties.

Condition 24

4 Condition 24 requires the payment of contributions pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The contributions are:

Community and Cultural Facilities $10,836.83
Community and Cultural Facilities-Shire Wide $9,299.61
Open Space $106,504.96
Open Space - Shire Wide $27,122.20
Roads $102,204.18
Cycleways $9,653.56
Civic & Urban Improvements $21,103.09
Surf Lifesaving $544.51
Administration $14,823.49

5 The only contribution not in dispute was that relating to Administration.

The issues

6 The applicant filed a Statement of Issues containing two issues and particulars. These were:

1) whether the contributions apply the principles of s 94 in relation to the contributions for Open Space (including Shire Wide) and Roads, and

2) whether the contributions can be offset against works-in-kind for Community and Cultural Facilities (including Shire Wide), Cycleways, Surf Lifesaving and Civic & Urban Improvements.
Section 94 contributions

7 Section 94 of the EPA Act provides the mechanism for the provision or improvement of amenities and services if a development will or is likely to require the provision of or increase the demand for public amenities and public services within an area. This may be achieved through the dedication of land free of cost or the payment of a monetary contribution, or both (s 94(1)). It is commonly known as the nexus test. A condition may only be imposed to require a reasonable dedication or contribution for the provision, extension or augmentation of public amenities and public services (s 94(2)). A condition may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan (s 94(12)).

8 The Regulations to the EPA Act (the Regs) provide further requirements for the preparation, operation and maintenance of contribution plans.

9 As I understand the applicant seeks the Courts discretion to use the provisions of s 94(12) to amend or delete (in the case of the Open Space and Roads) contributions imposed by the council because they are unreasonable.

Relevant planning document

10 The relevant planning document is the Byron Shire Council Section 94 Development Contribution Plan (the s 94 Plan). It was adopted by the council in November 2001 and replaces a previous contribution plan from 1993 (the 1993 Plan).

11 The s 94 Plan contains the anticipated quantum and types of development that are projected to occur during the life of the s 94 Plan and an assessment of demand that would occur as a result of this development. The required public amenities and public services to satisfy the identified demand and the works program for those public amenities and public services are contained within the plan, together with an estimate of the costs.

The evidence

12 Mr Des Brady, a consultant town planner and author of the councils s 94 Plan provided evidence for the council and Mr Graham Meineke, also consultant a town planner provided evidence for the applicant.

Open Space and Open Space-Shire Wide Contributions
The applicant’s evidence

13 Mr Meineke states that prior to the applicant's involvement in the subject land, a previous approval (DA 82/584) required the dedication of 1.51 hectares of land. This land is shown as lot 12 on Attachment 1. A further approval (DA 99/043), comprising Stage 1 of the applicant’s subdivision, required the dedication of an area of 0.59 hectares. It is shown as lot 16 on Attachment 1. In addition to the dedication of open space, Mr Meineke states the applicant has paid levies of $47,379 towards open space in previous subdivision approvals.

14 Mr Meineke calculates that the 95 lots from previous approvals require an active open space component of only 4,617 sq m whereas an area of 15,190 sq m has been dedicated for this purpose. For passive open space a total of only 344 sq m is required and 8,321 sq m has been dedicated. These calculations are based on a rate of 2.83 hectares per 1000 head of population. On this basis, it would be unreasonable to require the payment of further contributions. Mr Meineke extends this argument to include the Open Space-Shire Wide contribution.

The council’s evidence

15 Mr Graham, the council’s advocate, submits that s 94(9) of the EPA Act stops the applicant from relying on contributions made as part of previous consents. Clause 94(9) states:

(9) If a consent authority proposes to impose a condition in accordance with subsections (1) and (3) in respect of development, the consent authority must take into consideration any land or other sum of money that the applicant has elsewhere dedicated free of cost within the area or previously paid to the consent authority other than as a condition of the grant of consent under this Act.

16 If the Court does not accept this submission, Mr Graham further submits that Mr Brady’s evidence on the merits should be accepted.

17 In terms of local open space, Mr Brady rejects Mr Meineke’s assessment based on a rate of 2.83 hectares per 1000 head of population. He describes this approach as long discredited for the assessment of open space needs. While included in the 1993 Plan, this method was rejected as being inappropriate for the current s 94 Plan.

18 Mr Brady describes the key issue as whether the existing land satisfies the demand for local open space for the future residents of the proposed subdivision. He concludes that lots 12 and 16 are unsuitable as they contain a drainage reserve or a significant cover of native remnant bushland. While it could be used for small informal areas of open space it is extremely limited and as such cannot satisfy the needs of the future residents of the subdivision.

19 For Shire Wide Open Space, Mr Brady states that the test is whether the open space satisfies the demand for "Shire wide" open space for the future residents of the subdivision. He identifies "Shire wide" open space activities as children's play, relaxation and walking, formal and informal gatherings, sports activities and active sports, jogging and other forms of fitness activities and community activities such as fairs, festivals and the like as activities. In his opinion, lots 12 and 16 cannot fulfil the requirements for this type of open space.

20 Mr Brady states that the overall philosophy of the s 94 Plan is not necessarily to seek more land but to improve the existing supply of land to cater for the projected open space demand. Importantly, any reduction in contributions would lower the overall level of contributions and thereby make further acquisition and embellishment more difficult.

Findings

21 I accept Mr Graham's principal submission that s 94(9) denies the applicant the opportunity to revisit previous contributions. There was no dispute that lots 12 and 16 were created "as a condition of the grant of consent" from DA 82/584 and DA 99/043 respectively.

22 If I am incorrect in this conclusion, I prefer the evidence of Mr Brady on the question of whether the contribution is reasonable.

23 For a valid contribution to be raised under s 94 there needs to be a reasonably demonstrated nexus between the identified expenditure and the additional demand for amenities and services generated by the proposed development within an area. There needs to be both temporal and physical nexus between the increased demand generated by the extra population and the expenditure identified to meet this demand. A valid contribution also has to be reasonable.

24 Clause 27 of the Regs requires a contribution plan to include the relationship between the expected type of development and the demand for additional public amenities and services to meet that demand (cl 27(c)) and the formulas for determining the contribution rates (cl 27(d)). The nexus argument for open space is set out in some detail in cl 4.9 of the s 94 Plan.

25 The starting point for a test of reasonableness must be the s 94 Plan. In the absence of any contrary evidence, the Court must assume that the s 94 Plan has been prepared in accordance with the requirements of the EPA Act, including public exhibition and consideration of any submissions by the council. Consequently weight must be given to its contents, including the methodologies used in the establishment of the various contributions.

26 In my understanding of the applicant's evidence, the substance of the nexus argument, as set out in the s 94 Plan was not seriously challenged, as the Court was not taken to any of its specific assumptions. Instead, the applicant was content to rely on the previous dedications of land as the basis for its claim that the condition was unreasonable.

27 Mr Meineke places significant weight on 2.83 hectares per 1000 head of population ratio as a means of providing an acceptable level of open space. The s 94 Plan however dismisses this method as an inappropriate method of assessing appropriate levels of open space (par 6.2). It must be remembered that the demand for public amenities and public services within an area may change over time or that more refined methods of assessing the demand become available. In this case, the council adopted a more strategic or “needs based approach” to the provision of open space in the s 94 Plan than it did in the 1993 Plan. As Mr Brady states, "simply providing land as a numbers game without regard for its use was a concept flatly rejected by the Plan". In my view, and considering the nexus requirement in s 94, the "needs based approach" to the provision of open space in the s 94 Plan is significantly more reliable than the approach used in the 1993 Plan.

28 While Mr Meineke may not agree with this approach, it does not automatically follow that this would mean that the contribution is unreasonable. In Frevcourt v Wingacarribee Shire Council (1993) 80 LGERA 75, Stein J upheld the council's decision not to rely on the same traditional open space standard proposed by Mr Meineke, as the standard "has lost most of its relevance and usefulness in this State".

29 The s 94 Plan identifies the future projected population of the Suffolk Park area as requiring:

"1 additional park and district facilities. Embellishment of existing facilities is proposed to allow higher use levels for the incoming population. There will also be an increase in the demand for district open space. Embellishment of existing facilities is proposed" (cl 6.9.3).

30 With the benefit of the site view, I agree with Mr Brady that lots 12 and 16 are not likely to be suitable for the open space needs of the future population. The area is densely vegetated and while the Court was not made aware of any studies identifying the particular floral and faunal qualities of this area, it is unlikely that the wholesale (or even partial) clearing to provide some of the facilities identified in cl 6.9.3 is a realistic proposition.

31 The responsibility rests on the applicant to show why the contribution is unreasonable. In my view, the applicant has not shown why the contributions for Open Space (including Shire Wide) are not sound and not rationally based. It follows that the contributions are not unreasonable and as such, the contributions must remain.

Roads Contribution
The applicant’s evidence

32 Mr Meineke states that only 158 additional people are identified in the s 94 Plan to achieve a capacity of 3500 people in the Suffolk Park area. He concludes that the contribution is unreasonable given the relatively minor traffic increase generated by the projected population increase. Further, Mr Meineke states that the s 94 Plan proposes the collection of $500,000 whereas only $150,000 will be expended during the life of the s 94 Plan.

The council’s evidence

33 Mr Brady disagrees with Mr Meineke’s conclusions. He states that the contribution for roads is a Shire wide contribution based on the total incoming population. Consequently, the development in the entire local government area must be evaluated in assessing whether the contribution is reasonable and not just a small component of development. In his opinion, Mr Meineke’s assessment is selective and when taken in isolation any single component of the works program could be seen to be unreasonable however when the total demand of the future population is considered, the contribution is clearly a reasonable one.

34 Mr Brady also rejects, as speculative, any suggestion that the council will not be able to complete the works program.

Findings

35 On this issue, I agree with Mr Brady. The general thrust of Mr Meineke’s argument is that the contribution will not directly benefit the proposed subdivision and as such, the contribution is unreasonable.

36 Clause 26 of the Regs provides the form of contribution plans. Clause 26(2) provides that “contribution plans may be made for all or any part of the councils the area and in relation to one or more public amenities or public services”. In this case, the council has chosen that contributions for roads are to be collected on a Shire wide basis, rather than smaller discrete areas. This is an option that is open to the council. In my view the applicant provided no evidence to suggest that the collection of s 94 contributions, in this way, was unreasonable. I agree with Mr Brady that it is not appropriate to simply extract a component of the s 94 Plan and consider whether that component is unreasonable in isolation from the rest of the plan. The s 94 Plan must be considered as a whole.

37 This matter has been considered previously by the Court where it was held that it is not necessary for the benefit of the public amenities and public services to be direct, provided that the amenities and services are established in area where there can be a benefit to the development (Parramatta City Council v Peterson (1987) 61 LGRA 286, Frevcourt and Toadella Co Pty Limited v Dumaresq Shire Council (1992) 78 LGERA 261). The nexus argument for roads is set out in cl 4.10 of the s 94 Plan and is consistent with the findings in Peterson, Frevcourt and Toadella.

38 I also accept the evidence of Mr Brady that any suggestion that the works program will not be completed is speculative and cannot form part of the Court consideration on this matter.

39 In my view, the applicant has not shown why the contributions for Roads are not sound and not rationally based. It follows that the contributions are not unreasonable and as such, the contributions must remain.

Works In Kind
The applicant’s evidence

40 Mr Meineke states that the applicant, at meetings with council officers, offered to provide Works In Kind in lieu of paying s 94 contributions for Community and Cultural Facilities (including Shire Wide), Cycleways, Surf Lifesaving and Civic & Urban Improvements. During the hearing the Court was advised that attempts to seek further direction from council officers had been unsuccessful. In his evidence, Mr Meineke outlines some works and goods that are offered in lieu of the contributions.

The council’s evidence

41 Mr Brady accepts that the s 94 Plan provides that Works In Kind may be accepted by the council but subject to certain conditions. He rejects any use of Works In Kind in this instance, as the applicant has not provided details and design standards for the proposed works. Consequently, no assessment can be made of whether the works satisfy the requirements of the s 94 Plan.

Findings

42 Section 94(5)(b) provides the opportunity for Works In Kind (or material public benefit) in lieu of the dedication of land or the payment of a monetary contribution. Clause 3.9 of the s 94 Plan states that an offer for an "in kind" contribution will only be accepted if the payment of the contribution is unreasonable or unnecessary (cl 3.9(i)), will not prejudice the provision of any particular facility or service (cl 3.9(ii)) and is at least equal in value to the contribution (cl 3.9(iii)).

43 Mr Brady's concerns over the lack of detailed information is a valid matter in considering whether an offer for Works In Kind should be accepted. While s 94(5)(b) allows the opportunity for the provision of amenities and services by means other than a contribution, the onus rests with the applicant to show how any Works In Kind addresses the requirements of the s 94 Plan. The integrity of the s 94 Plan needs to be maintained and should not be compromised by offers to provide services and facilities that may challenge the overall objectives of the plan.

44 I have given little; if any weight to the applicant's concerns that the council was unresponsive to their attempts to address this issue prior to the hearing. The onus clearly rests with the applicant to provide sufficient details to convince the council that Works In Kind is a viable alternative to the dedication of land or the payment of a monetary contribution.

45 Clearly, any Works In Kind must be consistent with the requirements of the s 94 Plan. With the absence of any specific details from the applicant, the Court (as was the council previously) not in a position to consider whether any offers for Works In Kind should be accepted. The details supplied by Mr Meineke in his statement, took the matter no further. Consequently, the lack of detail effectively prohibited the Court from considering this issue. This was a conclusion given at the hearing, as a preliminary finding, in the interests of efficiency and the limited time available.

46 On the basis of the lack of detail presented to the Court, the assessment required by cl 3.9 cannot be undertaken so any attempts by the applicant to provide Works In Kind in lieu of the contributions must be rejected.

Conclusion

47 For the reasons set out in the preceding paragraphs, the appeal must fail.

48 During the hearing, the applicant who was self represented, raised a number of matters not directly related to the issues identified in the Statement of Issues. These included the late service of reports and the unavailability documents relating to the s 94 Plan, including the s 94 Register and the status of the s 94 Works Program. These matters were dealt with at the hearing and the following comments briefly describe the actions taken by the Court.

49 Following submissions from both parties, the Court accepted the reports of Mr Brady and Mr Meineke. Both reports were served outside the times given in Directions by the Court, although Mr Brady and Mr Meineke were aware of the issues and had prepared a joint report prior to the hearing. On this basis and with the limited issues in the proceedings, the Court saw little prejudice to either party and allowed the reports into evidence.

50 The Court accepted that matters relating to the council's maintenance of the s 94 Register and the status of the s 94 Works Program should be publicly available although the documentation provided to the Court was sufficient for the Court to properly consider the matters at issue.

Orders

51 The Orders of the Court are:

1. The appeal is dismissed.
2. Condition 24 of Development Approval No. 10. 2003.230.1 granted by Byron Shire Council on 23 March 2004 for the payment of contributions pursuant to s 94 of the Environmental Planning and Assessment Act 1979 for the subdivision of land known as part lot 17 DP 270338 Kalemajere Drive and Sallywattle Drive, Suffolk Park is confirmed.
3. The exhibits are returned.
_________
G T Brown
Commissioner of the Court