Broker Pty Ltd v Shoalhaven City Council

Case •

[2008] NSWCA 311

•

24 November 2008

No judgment structure available for this case.
Reported Decision: 164 LGERA 161

New South Wales


Court of Appeal


CITATION: Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311
HEARING DATE(S): 18 September 2008
 
JUDGMENT DATE: 
24 November 2008
JUDGMENT OF: Campbell JA at 1; Young CJ in Eq at 93; Handley AJA at 127
DECISION: Appeal dismissed with costs
CATCHWORDS: ENVIRONMENT LAW – legislation generally – contribution towards provision or improvement of amenities or services required under s 94 Environmental Planning and Assessment Act 1979 – appellant obtained development consent to effect subdivisions of land subject to condition that it pay contributions towards cost of infrastructure – appellant complied with condition – council adopted new Contributions Plan purporting to require additional contribution when in the future the owner of a lot in the subdivision sought consent or complying development certificate in respect of the erection of a dwelling on the lot – validity of purported condition – scope of validity of contributions plans – trigger for operation of s 94 Environmental Planning and Assessment Act – “development” for which “development consent” is sought – extended definition of “development” in s 4 of Act – whether fact that Council has made a prediction for s 94 purposes as to the likely effect of proposed development on requirement or demand for public amenities or services precludes it from making another prediction for s 94 purposes when development consent sought in respect of further development of land – whether provision of Contributions Plan that purported to oblige accredited certifier to impose a condition requiring payment of contributions upon complying development certificate invalid – construction of s 94EC(1)(a) Environmental Planning and Assessment Act – whether granting of subdivision consents impliedly grants consent to lots in subdivision being put to residential use – significance of unavailability of rights of appeal in respect of condition imposed upon complying development certificate – where right of appeal would be available in circumstances where condition imposed on development consent – s 85A(10) and s 94B(3) Environmental Planning and Assessment Act
LEGISLATION CITED: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulations 2000
Interpretation Act 1987
CATEGORY: Principal judgment
CASES CITED: Broker Pty Limited v Shoalhaven City Council [2007] NSWLEC 789
Ex parte Arnold Homes Pty Ltd; Re Blacktown Municipal Council (1962) 9 LGRA 268
Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151
Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446
PARTIES: Broker Pty Limited (Appellant)
Shoalhaven City Council (Respondent)
FILE NUMBER(S): CA 40038/08
COUNSEL: JA Ayling SC; AM Pickles (Appellant)
JJ Webster SC; FJ Berglund (Respondent)
SOLICITORS: Home Wilkinson Lowry, Sydney (Appellant)
Morton & Harris Lawyers, Nowra (Respondent)
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): 40045/07
LOWER COURT JUDICIAL OFFICER: Pain J
LOWER COURT DATE OF DECISION: 3 December 2007
LOWER COURT MEDIUM NEUTRAL CITATION: Broker Pty Limited v Shoalhaven City Council [2007] NSWLEC 789




                          CA 40038/08
                          LEC 40045/07

                          CAMPBELL JA
                          YOUNG CJ in EQ
                          HANDLEY AJA

                          24 NOVEMBER 2008
BROKER PTY LIMITED v SHOALHAVEN CITY COUNCIL
Judgment

1 CAMPBELL JA:


      Nature of the Proceedings

2 The Appellant brought class 4 proceedings in the Land and Environment Court of New South Wales against the Shoalhaven City Council (“the Council”). The Appellant had obtained development consent to effect three subdivisions of land. As a condition of development consent to effect those subdivisions, the Council had required the Appellant to pay certain contributions to the cost of infrastructure. Those contributions had been required under section 94 Environmental Planning and Assessment Act 1979 (“EPA Act”).

3 The Appellant had paid those contributions before commencing the litigation from which this appeal is brought, and at no time has the Appellant disputed the validity of the Council’s action in requiring those contributions to be paid. What the Appellant disputed was the validity of action it regarded the Council as likely to take, requiring the payment of an additional contribution to the cost of infrastructure when in the future an owner of a lot in the subdivision sought consent to erect a dwelling on that lot. Between the time of granting development consent to the subdivisions and the time of the proceedings being brought, the Council had adopted a new Contributions Plan, that purported to require the making of an additional contribution upon consent being given to the erection of a dwelling on land in an area that included the three subdivisions.

4 In the proceedings it brought, the Appellant sought a declaration that the new Contributions Plan was invalid to the extent to which it purported to impose a condition requiring the payment of contributions on any development consent, or complying development certificate, issued in respect of the erection of a dwelling upon a lot in any of the three subdivisions. It also sought some related relief, declaring that any provision of the Contributions Plan that purported to oblige an accredited certifier to impose any such condition upon a complying development certificate was void, and an order restraining the Council and any accredited certifier from purporting to impose any such section 94 contributions.

5 Pain J dismissed the Appellant’s application: Broker Pty Limited v Shoalhaven City Council [2007] NSWLEC 789. In the present appeal, the Appellant seeks to persuade this Court to grant the relief that Pain J declined to grant.

6 At first instance the Appellant put its case for the invalidity of the provisions of the Contributions Plan in two ways. One way can be described as simple ultra vires – that the aspects of the plan about which the Appellant complains are of a type not authorised by law. The other was that there are aspects of the Plan that are so unreasonable that no council properly exercising its powers could have concluded they should be adopted. Only the first way of putting the case is pressed on this appeal.


      The Subdivision Consents

7 The Council has granted the Appellant three subdivision consents, SF 9348, SF 9450, and SF 9500. Those consents relate to parcels of land that are immediately adjacent to each other, to the west of Milton township. Together, the consents grant consent to the subdivision of the land into 28 lots, and the construction through the land of a road known as Price Parkway. The last of those consents was issued on 23 July 2004. It is convenient to refer to the three consents together as being the consent to effect the Price Parkway subdivision.

8 One of the consents identified the “approved use and/or development” as “Residential Subdivision pursuant to the provisions of the Shoalhaven Local Environmental Plan 1985”. The others identified the “approved use and/or development” by the same expression, though in one case preceded by “Eight (8) Lot”, and in the other by “10 Lot”.

9 Each consent was subject to conditions that were of a broadly similar nature. There was a requirement that a construction certificate be obtained from either the Council or an accredited certifier before any building work could commence. There were conditions requiring the provision to each lot in the subdivision of underground electricity, a telephone service, and water. There were conditions identifying the engineering standards that the new road to be constructed through the subdivision had to comply with. There was a requirement for restrictions as to user under section 88B Conveyancing Act 1919 to be created, imposing controls on the type of building work that could be carried out on the lots.

10 Each consent also included a condition stating:

          “This development will generate a need for additional services and/or facilities as described in Council’s Contributions Plan 1993 , as itemised in the following table.”

11 There then followed a table, each line of which identified a specific Council project, and the amount required to be contributed to that project. Some of the projects involved provision of sporting facilities, some involved provision of community facilities like a community centre and library extension, and one was a fire control project.

12 Two of the identified projects were road projects. One was a project identified as “05 ROAD 0011” described as “Southern Link Rd & Associated Works”, while the other was identified as project “05 ROAD 0030” described as “Croobyar Road – Widen Seal to 8m From Hwy to Corks Lane”.

13 A calculation, also set out in the table, showed how the amount of the contribution was arrived at – it was in all cases on the basis of a specific amount per project per lot, multiplied by the number of lots to which the subdivision related.

14 While the table identified a total amount of contributions, the condition also stated that contribution rates were adjusted annually on the basis of a particular indexation formula, and that the amount of the contribution actually required would be that which was calculated on the rate applicable at the date of payment, not at the date of development consent. It contained a statement in the form:

          “A total contribution, currently assessed in the sum of $[figure] … or as indexed in future years shall be paid to Council before the issue of a construction certificate.”

15 The “construction certificate” referred to in that condition, and in the condition requiring a construction certificate to be obtained before any building work commenced, was one that was to be obtained before any of the building or engineering works connected with road construction and other provision of services to the allotments in the subdivision could be commenced.

16 The contributions so assessed totalled $5,107.73 per lot (at the 2003/04 rate), or $5,478.05 per lot (at the 2004/05 rate). The Appellant has paid the whole of the contribution that it was assessed as liable to pay.


      The Council Contributions Plan 1993

17 These contributions were levied in accordance with the Council’s Contributions Plan 1993. That Plan stated that it had been prepared by the Council:

          “… to define Section 94 Contributions for the following categories of public amenities and services.”

18 It then listed a variety of different types of public amenities and services, one of which was “Roads and Traffic Control Devices”. It stated:

          “The types of development liable for contributions under this plan are:

· Any form of subdivision which involves the generation of additional demand for services;

· Any form of residential development generating additional persons * (other than single unit dwelling houses for which contributions would have been levied at subdivision stage);

          …
          In accordance with accepted practice, and as per the NSW Department of Planning’s, S94 Contribution Plan Manual, contributions will be required at the subdivision stage. However, where higher density uses over and above a single dwelling are proposed and permissible, then the increased demand will be levied at the time of development consent, or later at building approval stage where such approval is required. Where Council has previously resolved to collect section 94 charges on a single dwelling as [sic] generally as a consequence of the rezoning of the land the levy will be collected prior to the release of the approved building plans.”

19 The plan fixed the contribution per lot for a large variety of different council projects, identified the geographical area within which land would be levied for each project, and explained the reasoning by which the amount of each contribution was arrived at.


      The 2006 Contributions Plan Amendment

20 On 24 October 2006 the Council adopted an amendment to its Contributions Plan, to be effective from 1 November 2006. It took the form of an additional Contributions Plan, intended to operate in conjunction with the pre-existing plan. It was described as Amendment No. 77 (Area 5) Amendment No.2 (Corks Lane – Princes Highway Link Road and Associated Works). It related to a new road project, identified as 05 ROAD 0058.

21 The land in the Price Parkway subdivision, and other land to the north and west of Milton village, was in the process of being opened for development. The Council had conducted traffic studies, in conjunction with the NSW Roads & Traffic Authority, of the likely effect of new residential areas to the north and west of Milton on traffic movements in Milton. The Council decided that to cater for the additional traffic likely to be generated, certain additional roadworks were desirable. The Plan identified, by reference to a map, the Contribution Area that the Council identified as being required to fund the additional roadworks. That Contribution Area included the area of the Price Parkway subdivision. The plan included detailed costings of the proposed works. Those costings showed a total estimated cost of $2,034,683.

22 Clause 13.1 of the Plan stated:

          “The proposed works are required as a result of residential development within the designated Contribution Area.
          However, Council is prepared to pay 50% of the expected cost of Project C, Corks Lane (North). This amounts to $188,807. The remaining costs, amounting to $1,845,876, will be apportioned equally to all lots created in the Contribution Area.”

23 The Plan stated that the manner in which contributions were to be apportioned was by use of the concept of an Equivalent Tenement (ET). A single detached dwelling was rated as 1.0 ET, while for medium density development the number of ET depended upon the number of bedrooms contained in a particular unit. The Plan stated that the estimated number of ET in the Contribution Area was 201. A contribution rate was struck, on the basis that the costs to be met by lots within the Contribution Area of $1,845,876 were divided between 201 ETs, giving a contribution rate of $9,183 per ET.

24 Clause 17 of the Plan included the following:

          “The contribution is expected for all subdivision, residential, industrial and commercial development in the designated Contribution Area. …
          17.1 … Payment will be required prior to the issuing of the linen plan in the case of subdivisions, or before the issue of a construction certificate or complying development certificate in any other case.
          17.2 … In accordance with section 94EC of the EP&A Act and Clause 146 of the EP&A Regulation , a certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it has verified that each condition requiring the payment of monetary contribution has been satisfied.
              In particular, the certifier must ensure that the applicant provides a receipt(s) confirming that contributions have been fully paid and copies of such receipts must be included with copies of the certified plans provided to the council in accordance with clause 142(2) of the EP&A Regulation . Failure to follow this procedure may render such a certificate invalid.
          …
          17.3 … In accordance with s94EC(1) of the EP&A Act , accredited certifiers must impose a condition requiring monetary contributions in accordance with this development contributions plan for residential development of all types.
              The conditions imposed must be consistent with Council’s standard section 94 consent conditions and be strictly in accordance with this development contributions plan. It is the professional responsibility of accredited certifiers to accurately calculate the contribution and to apply the section 94 condition correctly.”

      The Shoalhaven Local Environmental Plan 1985

25 The land the subject of the three subdivision consents was zoned Residential 2(c) before the subdivision consents were issued. It continues to have that zoning. The zoning table for the Shoalhaven Local Environmental Plan 1985 (“the Shoalhaven LEP”) stated that no development within the zone could be carried out without development consent. There was a variety of prohibited developments (none of which bear upon the present application), and a provision that development for any purpose other than a purpose for which development was prohibited could be carried out only with development consent.

26 Clause 10 provided that land to which the Plan applies could not be subdivided except with the consent of the Council.

27 Clause 54A provides:

          “(2) Development listed in Schedule 2 to Development Control Plan No 89 Exempt and Complying Development as adopted by the Council on 23 June 2003 is complying development if:
              (a) it is local development of a kind that can be carried out with consent on the land on which it is proposed, and
              (b) it does not involve the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
              (c) it does not involve the change of an existing use to another use, and
              (d) it does not involve the enlargement or expansion or intensification of an existing use.
          (3) Development is … complying development only if it complies with the development standards and other requirements applied to the development by Development Control Plan No 89 Exempt and Complying Development as adopted by the Council on 23 June 2003.
          (4) A complying development certificate issued for any complying development shall be subject to the conditions for the development specified in Development Control Plan No 89 Exempt and Complying Development adopted by the Council, as in force when the certificate is issued.”

28 The case has been conducted on the basis that there is a realistic prospect that at least some of the houses that are likely to be constructed in the Price Parkway will be of a kind that count as “complying development”.


      Legislation Concerning Contributions to Infrastructure

29 The provision that empowers a local council to require a developer to make contributions to (broadly) the cost of infrastructure, the need for which is generated by the development, is section 94 Environmental Planning and Assessment Act 1979:

          “(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
              (b) the payment of a monetary contribution,
              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.”

30 A council, acting as a consent authority under section 94(1), does not have an unfettered discretion about the amount of monetary contribution it can require. Section 94B provides:

          “(1) A consent authority may impose a condition under section 94 … 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).”

31 Further, the operation of a contributions plan in the circumstances of any particular case, can be reviewed by the Court pursuant to section 94B(3).

          “A condition under section 94 that is of a kind allowed by a contributions plan … 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 … This subsection does not authorise the Court to disallow or amend the contributions plan …”

32 The making of contributions plans is regulated by the following provisions of section 94EA:

          “(1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).
          …
          (3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.”

33 The “this Division” here referred to is Division 6 of the EPA Act, which runs from section 93C to section 94EM inclusive. The only condition that a council can impose under Division 6 is a condition imposed under section 94. Thus, the possible scope of validity of a contributions plan is dependent upon the power of a council to impose a condition under section 94.

34 The relevant regulations, the Environmental Planning and Assessment Regulations 2000, give effect to section 94EA(3) by, inter alia, the following provisions of regulation 26:

          “(1) A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Director-General, copies of which are available for inspection and purchase from the offices of the Department.
          (2) One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.”

35 Regulation 27 sets out various topics or items of information that must be included in a contributions plan. Regulations 28-31 require a process of public exhibition of a draft contributions plan, and receipt and consideration of submissions concerning the draft, to be gone through before the council adopts a contributions plan.

36 Section 94EC EPA Act provides:

          “(1) In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:
              (a) is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 …, and
              (b) can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and
              (c) must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.
          (2) This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.”

37 Obtaining development consent for the erection of a building is not enough to authorise construction of the building to actually begin. Section 81A(2) EPA Act provides:

          "The erection of a building in accordance with a development consent must not be commenced until:
          (a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier.”

38 Clause 146 Environmental Planning & Assessment Regulation 2000 provides:

          “A certifying authority must not issue a construction certificate for building work … under a development consent unless each of the following have been complied with:
          (a) …
          (b) each condition requiring the payment of a monetary contribution levied before work is carried out in accordance with the consent (as referred to in section 94 … of the Act).”

      The Appellant’s Argument

39 Mr Ayling SC, counsel for the Appellant, points out that the usual practice in New South Wales (itself expressly recognised in the terms of the Shoalhaven City Council Contributions Plan 1993) is for contributions under section 94 to be required at the subdivision stage. He submits that subdivision of itself does not generate any need or demand for public amenities and public services – it is only the occupation of the land, once subdivided, that has those effects. He submits that the consents that were given to the Appellant were ones that gave approval not only to the subdivision of the land, but also to its subsequent use for residential purposes. In assessing the contribution that the Appellant was required to pay, the Council must have considered to what extent the residential use of the land, as subdivided, would require the provision of, or increase the demand for, public amenities and public services.

40 What the new Contributions Plan purports to do is to impose an additional levy at the time at which consent is sought for the erection of a detached house. Insofar as the new Contributions Plan relates to the land in the Price Parkway subdivision, the Council has already granted development consent, and has done so on a basis that presupposes occupation of the land in question for residential purposes. In that situation, he submits, the power of the Council to impose an additional requirement of a contribution under section 94(1) simply does not exist.

41 The Appellant does not challenge the entire new Contributions Plan. All that is challenged is the aspect of it that applies to the Price Parkway subdivision.


      Decision

42 In my view this argument does not pay sufficiently close attention to the language of section 94(1). Fundamental to the operation of section 94(1) is that there is “development”, for which “development consent” is sought. Section 4 EPA Act defines “development” as meaning:

          “(a) the use of land, and
          (b) the subdivision of land, and
          (c) the erection of a building, and
          (d) the carrying out of a work, and
          (e) the demolition of a building or work, and
          (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
          but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.”

43 It also provides:

          “ development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.”

44 Thus, to ascertain the meaning of “development consent”, one must consult Part 4 of the EPA Act. Part 4, titled “Development Assessment” runs from section 76 to section 109ZL inclusive. Section 76A provides:

          “(1) General
              If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
              (a) such a consent has been obtained and is in force, and
              (b) the development is carried out in accordance with the consent and the instrument.
          (2) For the purposes of subsection (1), development consent may be obtained:
              (a) by the making of a determination by a consent authority to grant development consent, or
              (b) in the case of complying development, by the issue of a complying development certificate.
          …
          (5) Complying development
              An environmental planning instrument may provide that development that can be addressed by specified predetermined development standards is complying development.”

45 Division 2 of Part 4, which runs from section 77 to section 83 inclusive, applies, in accordance with section 77, to development that may not be carried out except with development consent, but does not apply to complying development. Section 78A(1) permits a person to apply to a consent authority for consent to carry out development. Section 80 enables a consent authority to determine a development application by granting consent (either unconditionally or subject to conditions), or refusing consent. Section 80A(1) sets out the circumstances in which a condition of development consent may be imposed. One such circumstance (under para (h)) is that the condition is authorised to be imposed under section 94.

46 Division 3 of Part 4 of the EPA Act, which runs from section 84 to section 87 inclusive, governs complying development. Section 84A provides:

          “(1) A person may carry out complying development on land if:
              (a) the person has been issued with a complying development certificate for the development, and
              (b) the development is carried out in accordance with:
                  (i) the complying development certificate, and
                  (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.”

47 Section 85 provides:

          “(1) Terms of complying development certificate
              A complying development certificate is a certificate:
              (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
              (b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia .
              …
          (3) Erection of buildings
              A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.
              Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.”

48 Section 85A provides:

          “85A Process for obtaining complying development certificates
              (1) Application
              An applicant may, in accordance with the regulations, apply to:
              (a) the council, or
              (b) an accredited certifier,
              for a complying development certificate.
          …
          (3) Evaluation
              The council or accredited certifier must consider the application and determine:
              (a) whether or not the proposed development is complying development, and
              (b) whether or not the proposed development complies with the relevant development standards, and
              (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.”

49 The trigger for the operation of section 94 is that there is “development”, for which “development consent” is sought from a consent authority. In accordance with the extended definition of “development” in section 4, there is “development” when the subdivision of land occurs, but there is also “development” when the erection of a building occurs.

50 If an application for subdivision of land is made to a council, and the council is satisfied that that subdivision “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”, the council’s power to grant the development consent subject to a condition for payment of money under section 94 is triggered. In making the judgment whether the subdivision “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”, the council is not restricted to considering only those consequences which must inevitably flow from, or are legal consequences of the granting of, the subdivision approval. As well, the council can consider the practical consequences that are likely to follow from the granting of the consent. If the council is satisfied that a subdivision consent, once granted, is likely to be acted upon, and to instigate a process whereby people come to occupy the separate lots that arise from the subdivision, the council might, in the circumstances of the particular case, be satisfied that the subdivision will, or is likely, to require the provision of or increase the demand for public amenities and public services within the area.

51 The notion that a development will or “is likely to require the provision of … public amenities and public services within the area” is that the development will, or is likely to, bring about a need or desire for the provision of public amenities and public services, where the need or desire is of sufficient strength for it to be appropriate to say that the provision of the public amenities and public services are “required”, and where those public amenities and public services were not previously required. In other words, the requirement is caused by the development. The notion that a development “will or is likely to … increase the demand for public amenities and public services” within an area contemplates a situation where there is already a demand for public amenities and public services within the area in question, but that the development for which development consent is sought will or is likely to increase the demand for those public amenities and public services within the area. In that case, it is the increase in the demand that is caused by the development.

52 Whether the predictive enquiry that the council engages in is one of considering whether the development will, or is likely to require the provision of public amenities and public services within the area, or is one of considering whether the development will or is likely to increase the demand for public amenities and public services within the area, the council is engaged in an exercise in comparison. What is being compared in each case is what public amenities and public services within the area will be required, or be ones for which a demand exists, if the development occurs, and those that will be required, or for which a demand exists, if the development does not occur. The predictive exercise is one that the council carries out by reference to the particular development for which development consent is sought. Thus, in the case where consent is sought to a subdivision, it is the subdivision that is the relevant development, the consequences of which the council seeks to predict. In the case where development consent is sought to the erection of a house, it is the erection of the house that is the relevant development, the consequences of which the Council seeks to predict.

53 Section 48(1) Interpretation Act 1987 provides:

          "If an Act … confers or imposes a function on any person or body the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires."

54 In accordance with this provision, the fact that the council has made a prediction, for the purpose of section 94, at the time when subdivision consent is sought concerning a particular parcel of land does not preclude it from making another prediction, for the purpose of section 94, at a later time when some other development, for which development consent is sought, is to occur concerning the same land.

55 In the situation involved in the present case, at the time of granting the subdivision approval the Council was evidently satisfied that the subdivision would or was likely to require the provision of, or increase the demand for, public amenities and public services within the area, concerning the particular Council projects that were identified in the condition of subdivision approval that levied the section 94 charge. It was able to come to that view by comparing what public amenities and public services would, or were likely to be provided, or be ones for which a demand would exist, if the subdivision approval was granted, and those that would or were likely to be required, or for which a demand would exist, if the subdivision approval were not granted.


      If the Council Itself is asked for Development Consent or a Complying Development Certificate

56 If the Council in the future were to be asked to grant development consent, or to issue a complying development certificate, concerning the proposed erection of a new house, either of those applications would be for “development consent” within the meaning of section 94(1). When it was the erection of a single house that was in question, rather than the creation of an entire subdivision, it seems more likely that (if section 94(1) was on the facts of the particular case applicable at all) a council acting correctly would come to the view that the erection of that house was likely to increase the demand for public amenities and public services within the area, rather than of itself, as a single new house, require the provision of public amenities and public services within the area.

57 It would, in my view, be open to the Council to reach a conclusion that the construction of a house on a particular lot in the Price Parkway subdivision would, or was likely to increase the demand for public amenities and public services within the area, because, even after subdivision approval had been granted, the subdivision approval was not sufficient, of itself, to cause people to actually be living on the subdivided lots.

58 When the council, at the time of granting subdivision approval, predicts that the granting of that approval will or is likely to require the provision of or increase the demand for public amenities and services within the area, it is proceeding on an assumption that people will or are likely to, later, seek and be granted development consent for the erection of houses on the individual lots. It is only if that assumption is, in the circumstances of the particular subdivision being considered, a realistic one that the council is justified in imposing a section 94 levy at the stage of subdivision. But the fact that that assumption is, concerning a particular subdivision, a realistic one does not deny the necessity of development consent actually being obtained for the later erection of particular houses. It does not deny that the later granting of development consent for erection of a particular house is a necessary step before people actually come to be living on the subdivided blocks, and thus that the granting of development consent for erection of the house can in itself be something that will or is likely to require the provision of or increase the demand for public amenities and services within the area. This is just an example of the phenomenon, well recognised in law, that the one outcome can be the consequence of several different causes.

59 It is not necessary to decide whether, if there were a situation where a council had already, at the time of granting subdivision approval, imposed a levy for the purpose of providing particular public amenities and public services within an area, it would be open to the council, at the later stage of considering whether to grant development consent for a particular building to be erected on a subdivided lot, to conclude that granting that consent would, or was likely to require the provision of, or increase the demand for those particular public amenities and public services concerning which the previous levy had been struck. However, in a case like the present, where between the time of granting subdivision consent, and the time when development consent for erection of a house on a lot within the subdivision is sought, the Council has identified a new public amenity or public service, not previously levied for, that would or was likely to be required, or concerning which there would be an increase in demand if that lot were to be occupied, section 94 empowers the Council to impose a condition, on the development consent for erection of the building, to require the payment of a monetary contribution towards the provision of that newly identified public amenity or public service.

60 If an application for a complying development certificate was made to the Council, seeking that certificate concerning the erection of a dwelling on a lot in the Price Parkway subdivision, it would in my view be open to the Council to impose a condition under the new Contributions Plan requiring the making of a contribution, for the same reason as it would be open to the Council to impose such a condition if the application for consent to build a new dwelling house took the form of an application for development consent.

61 In each of the cases where the council itself grants a development consent, or issues a complying development certificate, it is easy to see how section 94 operates to empower the council to impose the condition of contribution, because in that situation it is the council that is the consent authority, and section 94 empowers the consent authority to grant a development consent subject to a condition requiring the payment of a contribution. How the words of section 94 can operate when it is not the council itself, but an accredited certifier, who grants a complying development certificate is not so readily apparent. I now turn to consider that question.


      If an Accredited Certifier is Asked for a Complying Development Certificate

62 If the erection of a particular house counts as “complying development” under the Shoalhaven LEP, a person who seeks a complying development certificate in relation to the erection of that house has a choice, under section 85A(1) EPA Act whether to apply to the Council, or to an accredited certifier, for the complying development certificate. Section 85A(9) provides that:

          “In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.”

63 The only provision of Division 6 that requires a condition to be imposed in relation to complying development, is section 94EC. Section 94(1) does not, it seems to me, require such a condition to be imposed – rather, it gives the consent authority a power to impose a condition. The new Contributions Plan, in clause 17.3, specifically invokes section 94EC(1), when it requires accredited certifiers to impose a condition requiring monetary contributions in accordance with the new development Contributions Plan for residential developments of all types.

64 The fact that section 85A(9) and section 94EC clearly contemplate that an accredited certifier must impose any condition for monetary contributions required under a contributions plan is not enough, by itself, to show that any such provision in a contributions plan is valid. The only power that exists to make a contributions plan is, under section 94EA(1), “for the purpose of imposing conditions under this Division”. Section 94EC(1)(a) requires a contributions plan “to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 …”, and thus it could be said that when a condition is imposed in accordance with section 94EC(1)(a) that is “imposing conditions under this Division”. However, the language of section 94EC(1)(a) itself requires the type of condition imposed under section 94EC(1)(a) to be a “condition under section 94”. Thus, the provision in this Contributions Plan that required an accredited certifier to impose a condition for payment of a contribution in accordance with the Plan is valid only if it fits within the language of section 94(1).

65 Section 94 empowers a “consent authority” to grant a development consent subject to a condition, if the “consent authority” has the state of satisfaction identified in section 94(1). Section 4 defines “consent authority” in relation to an application for a complying development certificate as meaning:

          “(a) the council having the function to determine the application, or
          (b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application—that Minister or public authority, as the case may be.”

66 A “public authority” is defined by section 4 as meaning:

          “(a) a public or local authority constituted by or under an Act, or
          (b) a government Department, or
          (c) a statutory body representing the Crown, or
          (d) a chief executive officer within the meaning of the Public Sector Management Act 1988 (including the Director-General), or
          (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989 , or
          (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or
          (g) a person prescribed by the regulations for the purposes of this definition.”

67 There is no relevant Regulation that triggers para (g) of this definition. An accredited certifier is not a “public authority” within this definition. Thus, in relation to an application for a complying development certificate, the “consent authority” is the council having the function to determine the application. The council has the function of determining a complying development certificate because it has power to do so, under section 85A(1), even though in a particular case the application might be made to the accredited certifier, rather than to the council.

68 When an accredited certifier issues a complying development certificate the certifier is stating his or her conclusion that the particular development in relation to which the complying development certificate is sought meets criteria that have been laid down in advance in the council’s own planning instrument, and other requirements of the EPA Act and Regulations, as being ones in accordance with which a development of a particular type is permissible. In the situation where an accredited certifier issues a complying development certificate, the council, as the consent authority, is not actually giving any development consent, and thus no question arises of whether the council, as the consent authority, should grant any development consent subject to a condition requiring the payment of a monetary contribution. Thus, on a strictly literal reading, an accredited certifier, on issuing a complying development certificate, could never impose a condition under section 94, because it is only the consent authority that can impose a condition under section 94, and the accredited certifier is not the consent authority.

69 However, in my view, that literal construction of section 94EC(1)(a) is not likely to be the construction that Parliament intended.

70 Clearly, one of the aims of the regime of appointing accredited certifiers who can issue complying development certificates is that the council is relieved of the task of processing applications of a more routine kind that fit within predetermined criteria for acceptable development. There is every reason to believe that Parliament’s intention was that the accredited certifier should be put in a position to make the decision that the council would itself have made concerning the application, had the application been dealt with by the council itself. When the Council would have power in the present case to impose a condition of making a monetary contribution on the issue of a complying development certificate, it is in accordance with the scheme of the legislation that the accredited certifier have a corresponding power. The wording of section 94 is not confined to empowering the consent authority to require payment of a monetary contribution only for one type of development consent, namely subdivision – the wording extends to development consents of all descriptions, including complying development certificates. When an applicant for a complying development certificate has a choice whether to approach the council or an approved certifier to obtain a complying development certificate, it would be arbitrary in the extreme if whether a development contribution could be exacted depended on the choice that the applicant made about whether to approach the council or the certifier.

71 Further, the whole scheme for section 94 contributions aims to enable a council to have the additional cost that is caused by a development of providing infrastructure borne by that development, and to have the costs of providing infrastructure divided in a fair way between those whom the infrastructure services. That objective would be frustrated if whether a development contribution could be charged depended on the accident of whether a complying development certificate was sought from the council or an accredited certifier. Parliament is not to be assumed to have been acting arbitrarily, or in a way that would not effectively achieve the objectives of its legislation.

72 Further, the objective of having the council decide what contributions should be exacted, but only within the confines of a contributions plan that is in a particular form and addresses certain topics, and is adopted only after a period of public exhibition and consideration of any submissions concerning the draft, is achieved if the certifier is required to impose a contribution in accordance with the plan.

73 In those circumstances, it seems to me that section 94EC(1) should be read as though it stated that a contributions plan is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition of the type the council could have imposed under section 94 if the council were considering the matter itself. As so construed, the provision of the new Contributions Plan that requires an accredited certifier to impose a condition requiring monetary contributions for residential developments of all types is, in my view, valid.


      Whether Subdivision Consent is Consent to Residential Use

74 Both at first instance and on appeal the Appellant argued that the consent for residential subdivision was an implied consent for the use of the land for residential purposes, at the rate of one dwelling per lot. The forensic point of making that submission was to bolster the argument that the time at which assessment of the public amenities and public services that would be required by a development should take place, for the purpose of section 94(1), was at the time of application for the subdivision approval.

75 On the view I take of the way in which section 94(1) operates, that argument does not arise. However, in my view it fails in any event.

76 The first reason is a matter of construction of the consents. The subdivision consents in the present case do not state themselves to be anything other than consent to subdivision. While the consents refer to each subdivision as being a “residential subdivision”, the legal possibility of the land being used for residential purposes arose from the terms of its zoning under the LEP, and arose before the subdivision consents were granted. While the lots were of a size and configuration, and the subdivision consents imposed various conditions, like requiring services to be provided to lots and restrictions as to user under section 88B Conveyancing Act imposed, that were obviously intended to make the lots ones that would ultimately be suitable for residential occupation, that is not the same thing as saying that the subdivision consent was itself an implied consent to any occupation of the land, whether for residential purposes or any other purposes.

77 Second, Mr Webster SC, counsel for the Council, correctly submits that if there were any implied consent to residential use of the lots in the subdivision, that implied consent would be unconditional, and would inhibit the Council in any later consideration it gave, under section 79C EPA Act, to a development application concerning the land.

78 Third is a reason that Pain J gave for rejecting the submission. It is that section 81A(1) EPA Act provides that a development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. Similarly, when consent to erection of a building is granted by a complying development certificate, rather than by a development consent, section 85(3) says that the complying development certificate is sufficient to authorise the use of the building when erected for the purpose for which it was erected (also subject to section 109M).

79 Each of those provisions is to be contrasted with section 81A(3) EPA Act. It states:

          “A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under, or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.”

80 That provision is purely permissive, and there is nothing in section 81A(3), analogous to section 81A(1) or section 85(3) stating that a development consent that enables the subdivision of land is sufficient to authorise any other activity at all. The distinction that her Honour noticed is in my view a sound one.

81 Fourth, the submission is contrary to several cases.

82 In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 Sugerman J held that a subdivision of a parcel of land on which two semi-detached cottages were erected, with the dividing line between the two lots into which it was being subdivided passing through the party wall separating the cottages, did not confer consent to any other dwelling being erected on the lots at a later time. Sugerman J said, at 250:

          “The approval of a subdivision into lots … is in law the approval of a subdivision simpliciter and not its approval with any condition or for any particular purpose such as shops or dwellings, etc. The question what sort of building may be erected upon the respective blocks is one which in strictness arises for decision later when it is sought to build on them and one which will be affected by circumstances as they then exist, by various considerations including the size of the lots, and by other matters which may have occurred in the meantime, such, for instance, as the proclamation of the area as a residential area. It could happen that land once subdivided might afterwards be struck with sterility in the hands of owners of the blocks; for instance if there had been a subdivision into lots of a size suitable only for the erection of shops in a position in which subsequent events showed, or had the result, that it would not be profitable or permissible to erect shops.
          The Local Government Act does not attribute any particular effect to approval of a subdivision as regards the uses to which the subdivided land may be put, or the buildings which may be erected upon it. The effects of the Local Government Act, on approval of a subdivision, are certain effects as to the way the owner may dispose of or deal with the land. Sections 323 and 327 of the Act contain prohibitions against subdividing land except in accordance with the provisions of the Act and except upon approval of an application made to the Council under those provisions. But, while the prohibition is put in the form, for instance, in s. 323, that land “shall not be subdivided” except in accordance with the provisions of the Act, the word “subdivided” is used in a specially defined sense in the Act. One finds a definition of that word in s. 3 where it is provided that “Subdivision” , “subdivide” , and similar expressions mean and refer to dividing land into parts, whether the dividing is (a) by sale conveyance transfer or partition; or (b) by any agreement dealing or instrument inter vivos (other than a lease for a period not exceeding 5 years without option of renewal) rendering different parts thereof immediately available to separate occupation or disposition; or (c) by procuring the issue of a certificate of title under the Real Property Act, 1900, in respect of a part of the land.
          So that the only effect of the approval of subdivision is to enable the land to be dealt with or disposed of in certain manners otherwise prohibited by statute, and not necessarily to enable any particular sort of building to be erected on it. By that I do not mean to say that various matters such as the area of the blocks, the frontages, the uses to which it is proposed the land should be put, the nature of the buildings that is proposed should be erected thereon, the circumstances that lots may become sterile in the hands of purchasers in the manner above described, may not, so far as the Act or Ordinances commit them to the Council for consideration, be proper subject matters for consideration by the Council.
          All that I point out is, as I said a few moments ago, that for the purposes of the present discussion, approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular sort of building being erected upon or some particular use being made of, the land.”

83 The presently applicable statutory definition of “subdivision” is that contained in section 4B EPA Act, which provides:

          “(1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:
              (a) by conveyance, transfer or partition, or
              (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.
          (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of:
              (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919 , or
              (b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 .
              Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989 .
          (3) However, subdivision of land does not include:
              (a) a lease (of any duration) of a building or part of a building, or
              (b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or
              (c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or
              (d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919 , or
              (e) the procuring of the registration in the office of the Registrar-General of:
                  (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919 , or
                  (ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 .”

84 In my view the remarks of Sugerman J remain applicable to the present definition.

85 In Ex parte Arnold Homes Pty Ltd; Re Blacktown Municipal Council (1962) 9 LGRA 268 at 271 Sugerman J (with whom Herron CJ agreed) inclined to the view that subdivision was not in itself development of land. He said, at 271, without referring to his own earlier decision in Smith:

          “The mere “subdivision” of land in the defined sense is not the doing of any of the things which are specifically mentioned in the definition of “development” under s 342T(1). It is not, that is to say, the erection of a building, or the carrying out of a work, or a use of the land either for a purpose which is different from the purpose for which it was last used or at all. It is something done, no doubt, in contemplation that ultimately there will be a new use of the several lots for a purpose (residential) which will be different from the purpose (rural) for which the entirety was last used. But it is not in itself a putting of the land to any such new use, or to any use.”

86 Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 concerned a developer who had obtained “tentative approval” for a subdivision of rural land, and had laid out a road in furtherance of the intended subdivision. At that stage an interim development order came into effect that prohibited “the use or development of any land or the … carrying out of any works on land” within the interim development area. However, a transitional provision provided that nothing in the interim development order:

          “… shall prevent the continuance of the use of any land for the purposes for which it was being lawfully used immediately before the coming into operation of the order …”

87 The High Court (Menzies, Gibbs and Mason JJ) held that “use of any land” within the transitional provision did not extend to development or subdivision, let alone sale.

88 In Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Preston J considered an application to subdivide a lot on which was erected a dwelling, and a restaurant and kiosk. The ultimate objective of the subdivision was to have a dwelling erected on each of the lots into which the land was proposed to be subdivided. A question arose of whether an application for consent to demolish the restaurant and kiosk, and subdivide the land, involved a change of use of the land. Preston J held that it did not. He said, at [28]-[29]:

          “… subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. …
          The consequence of the above propositions is that, even if it were to be assumed that there is some existing use of the land within the meaning of s 106 of the Environmental Planning and Assessment Act 1979, the development application does not, by seeking consent for the demolition of buildings and works on the land and the subdivision of land into two allotments, seek consent to change the use from any existing use to another use. The use of dwelling house, which the applicant has foreshadowed he wishes to pursue on each of the proposed lots, is not sought in the development application, either directly or consequently by seeking consent to erect dwelling houses on the proposed lots (see s 81A(1) of the Act). Before such use for dwelling house could lawfully be carried out on the proposed northern lot, a development application would need to be made and consent granted for such use (development consent already exists for the erection of the existing dwelling house and its use for that purpose).”

89 For these reasons, I conclude that the granting of the subdivision consents did not impliedly grant consent to the lots in the subdivision being put to residential use.


      Unavailability of Rights of Appeal

90 Mr Ayling points out that, pursuant to section 85A(10) EPA Act, there is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier. Thus, a lot-owner who sought a complying development certificate to permit the erection of a house, and who obtained a certificate subject to a condition requiring payment of the contribution levied under the new Contributions Plan, would not have any right of appeal to the Court concerning the reasonableness of the condition in the particular circumstances of the case. By contrast, section 94B(3) confers a right of appeal on a person who is granted development consent subject to a requirement for a contribution imposed in accordance with a contributions plan, and who wishes to argue that imposition of the condition is unreasonable in the particular circumstances of the case.

91 Mr Ayling is correct in pointing out that this difference exists. It might in some circumstances provide a reason why a lot-owner who thought that the application of the contribution in the particular circumstances of his or her case would be unreasonable might choose to make application for development consent to erect a dwelling rather than applying for a complying development certificate. However it does not seem to me to bear upon the question of whether the new Contributions Plan is valid.


      Orders

92 I propose that the appeal be dismissed with costs.

93 YOUNG CJ in EQ: This is an appeal from her Honour Pain J in the Land and Environment Court. Her Honour dismissed the motion brought by the present appellant seeking a declaration that its land at Price Parkway, Milton was not liable to pay the contributions otherwise leviable under the respondent’s contributions plan of October 2006.

94 Before the events referred to in these reasons, the appellant was the proprietor of land at the corner of Corks Lane and Croobyar Road, Milton. The appellant wished to subdivide its land. It did so in three stages, eventually producing a subdivision of 28 lots. A new road which curves from proceeding north from Croobyar Road to west to meet Corks Lane, named Price Parkway, was inserted in the middle of the subdivision to allow each lot to have access to a public road. The subdivision was put to the respondent council for approval in three tranches and approval was given to each tranche. The approvals were not completely identical, but for the purposes of these reasons, one can look at the final stage subdivision consent which is coded SF 9500.

95 That document intended subdivision consent and under the heading “Approved Use and/or Development” the words “10 Lot Residential Subdivision pursuant to the Shoalhaven Local Environmental Plan, 1985” appear. The consent is, as usual, subject to conditions. Condition 2 is that a construction certificate must be obtained before any building work can commence. Condition 3 is that utility services such as electricity is to be provided. There are various engineering conditions as to the construction of Price Parkway and the junctions with Croobyar Road and Corks Lane and restrictions on the sort of dwellings that might be erected. Under the heading “Contributions for Additional Services and/or Facilities” the following appears:

          “24. This development will generate a need for additional services and/or facilities as”

      then follows a table which contains some 14 items and notes that for 9 lots (one lot already had a house built on it) there was a contribution required of $49,302.48 pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

96 Underneath the table were the following words:

          “Contribution rates are adjusted annually on 1st July in accordance with the indexation formula indicated in the Contributions Plan … and the total contribution levied will be adjusted accordingly at the time of payment. (ie contributions are calculated on the rate applicable at the date of payment, not the date of development consent.)
          A total contribution, currently assessed at the sum of $49,302.48 (ie 2004/2005 rate) or as indexed in future years shall be paid to Council before the issue of a construction certificate …”.

97 That payment and the corresponding payments in the other consents were duly made to the respondent council.

98 Under the 2006 contributions plan, the contribution for 9 lots would be something like $82,000 rather than $49,000. The reason for this is that after the issue of the consents, the council conducted further research and determined that the traffic from this subdivision and other adjoining lands should not pass through the centre of Milton township but that it should be directed to the Princes Highway via a link road and round-about or by the extension of Corks Lane to connect with the Princes Highway.

99 The appellant says that it having paid the levy as per the original assessment and it not requiring the land to be used for any other purpose than that which was originally specified, the amended plan cannot apply to it.

100 In order to consider these submissions one has to look closely at the provisions of the EPA Act. Section 94(1) provides:

          “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
          (b) the payment of a monetary contribution, or both.”

101 Section 94EA provides that a council may prepare and approve a contributions plan for the purpose of imposing conditions under Part 4 Division 6 of the EPA Act. Section 94EC says that in relation to an application made for a complying development certificate, a contributions plan is to specify whether or not the accredited certifier must impose a condition under s 94 and must specify the amount of monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.

102 Under s 85A(9), in determining an application for a complying development certificate, the council or an accredited certifier must impose a condition that is required to be imposed under Part 4 Division 6.

103 The competing arguments can be shortly put.

104 The council says, and this position was endorsed in her Honour’s judgment, that whenever an application is before the council for development consent, the council may be satisfied that that development will or is likely to require the provision of or increase in demand for public amenities and public services within the area and impose a s 94 contribution.

105 The appellant says that if an application for development consent is put into council, and council assesses what is needed by way of contribution to meet what will or is likely to be required because of that application, then when the next stage comes, the council may only assess a contribution for the additional stress on the public services because of the second or subsequent development application. It cannot reassess the needs caused by the first application.

106 I consider both submissions are correct up to a point.

107 It must be remarked that it is a little difficult to see consistency in the sections which I have set out. Section 94(1) has the flavour that with each application a council is to direct its mind as to the circumstances and if, when doing so, it reaches a state of satisfaction, it then imposes a contribution. However, ss 94EA and 94EC tend to suggest that the whole exercise is mechanical. The council makes a contributions plan, that contributions plan covers a particular area of its shire, and it then for each property in that area where there is a development consent, imposes a condition in accordance with the plan.

108 There is more of the same problem when one compares the discretionary nature of the requirement about imposing contributions in s 94(1) because the council may grant the development consent subject to a condition that contribution be made, with the duty under s 94EC that an accredited certifier must impose the contribution as specified in the contributions plan.

109 The various submissions make one analyse closely what is it that was the subject of the three development consents such as the ones set out in the Blue Book at p 6.

110 The appellant says that if these consents were mere consents to subdivision and nothing more, then it just could not be that any provision of or increase in demand for existing public amenities and public services could flow. All that a subdivision does is to allow separate titles to be issued and separate occupation to be had of the new lots, vide s 4B of the EPA Act. Accordingly, if the consent was merely a consent to subdivision, no s 94 contribution could have been exacted.

111 However, a contribution was exacted and that was because the consent was a consent to residential use and such residential use was something which would in due course result in (dealing with the third consent) 9 extra households with say 27 people and 18 motor cars using the infrastructure and roads of Milton.

112 Mr J A Ayling SC who appeared with Mr A M Pickles for the appellant, put that when one looked at the consent and the detail in which it mentioned the provision of construction certificates, the provision of electricity, what sort of buildings might be erected and the description of the approved use as a 10 lot residential subdivision, they show that this must be so.

113 This is reinforced by the detailed working papers of the council which are in evidence which show that the council officers made a serious and in-depth examination of the infrastructure required if the subdivision were to be approved.

114 On the other hand, Mr J J Webster SC and Ms S Berglund put that it was wrong to so construe the consent. It was merely a subdivision consent, though it was a consent which envisaged that in the future the land would be used for residential purposes and that later applications would need to be lodged with the council to deal with those matters. They point out too that payment of the contribution has only got to be made when the developer is ready to proceed, not the date of the development consent.

115 In my view, if what is envisaged in the development consent is something which the council is satisfied requires provision to be made to compensate the community for the amenities, then the council is to assess what it is that needs to be paid. The assessment was made in cll 24 and 25 of the consent. That included a small amount of road works, contributions to libraries etc.

116 The basal proposition of the appellant is that the council must be satisfied at a particular point of time what is required for public amenities as a result of a particular development consent. In any development, there will be a number of stages in which case development consent will be asked for: (a) subdivision; (b) user; (c) erection of particular buildings etc. However, the only impact on public amenities and public services that development consent (b) or (c) will have, will be those which are additional to what was dealt with in development consent (a). This does not involve any reassessment of what happened under (a) even though the council may have changed its ideas as to what was involved with providing the amenities required by (a) by the time (b) or (c) is lodged.

117 In the instant case, there is no need for application (b) as the land may be used for single residences without further consent.

118 It must be noted that this application was made before there was any application to the council for any change of user or for permission to erect buildings.

119 Had the application been made after the council had imposed a further s 94 levy, the question for the court would have been whether the council had assessed what additional or increased demand there would be for infrastructure over and above that already considered when the previous development consent was granted in respect to the land. The council could not simply assess what was the total need for the development and then give credit for earlier payments.

120 In other words, the council must assess once and for all the demands in respect of the subdivision application and it is incumbent to make that assessment on the natural consequences of the development as well as what it inherently involves. This is clear from the words “is likely to require the provision” in s 94.

121 Thus, as Mr Ayling submitted, the mere fact that land is subdivided effects no need of itself for further infrastructure. However, potentially, subdivision in a residential area provides reasonable grounds for assessing that each of the lots will be likely to have erected on it a dwelling with 2.5-3 people to inhabit it who will need increased road facilities etc. Those facilities should be brought into consideration at the earliest possible time.

122 When each building application comes before council, there will be a further application for development of the land. The council must then ask, over and above what has already been assessed as additional infrastructure because of a development application submitted for this land, what additional assessment must then be made.

123 The learned primary judge said that the present application was really premature and that the proper time for any challenge is when the next formal development consent is given. I think that is correct.

124 In my view, it would be open to the council at the time of the next development consent in respect of this land to reach the conclusion that the construction of a particular house on a particular lot would be likely to increase the demand on infrastructure over that contemplated when subdivisional consent was given.

125 Although I initially thought otherwise, I do not consider that s 47 of the Interpretation Act 1987 which empowers people to exercise their powers from time to time as occasion requires, comes into consideration in the present case. The text of s 94 focuses on the application for development consent that is before the council and makes the council consider what is likely to flow from that particular application.

126 Accordingly, I agree that the appeal should be dismissed with costs.

127 HANDLEY AJA: I agree with Campbell JA.

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Cases Cited

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Broker Pty Limited v Shoalhaven City Council [2007] NSWLEC 789
Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10
Wehbe v Pittwater Council [2007] NSWLEC 827