Broker Pty Ltd v Shoalhaven City Council

Broker Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the validity of a condition imposed by Shoalhaven City Council (the respondent) under section 94 of the *Environmental Planning and Assessment Act 1979* (NSW). The appellant had previously obtained development consent for subdivisions of land, subject to a condition requiring payment of contributions towards infrastructure costs, which it had satisfied. The Council subsequently adopted a new Contributions Plan that purported to require an additional contribution from the appellant when a future owner of a lot within the subdivision sought consent or a complying development certificate for the erection of a dwelling.

The central legal issues before the Court of Appeal were whether the new Contributions Plan, as applied to the appellant's subdivision, was valid and whether the purported condition requiring further contributions was lawful. Specifically, the Court considered the scope of validity of contributions plans, the trigger for the operation of section 94 of the Act, and the definition of "development" for which "development consent" is sought, including the extended definition in section 4 of the Act. The Court also examined whether a prediction made by the Council for section 94 purposes at the time of the initial subdivision consent precluded it from making a different prediction for subsequent development of the land. Further questions arose regarding the validity of a provision in the Contributions Plan that purported to oblige an accredited certifier to impose a condition requiring payment of contributions upon a complying development certificate, the construction of section 94EC(1)(a) of the Act, and whether the granting of subdivision consents impliedly granted consent for the lots to be used for residential purposes. The significance of the unavailability of rights of appeal for conditions imposed on complying development certificates, compared to those imposed on development consents, was also a consideration.

The Court of Appeal reasoned that the *Environmental Planning and Assessment Act 1979* contemplates that development may occur in stages, and that a section 94 contribution can be levied at each stage of development. The Court held that the initial subdivision consent did not preclude the Council from making a further prediction of demand for public amenities and services when a dwelling was proposed to be erected on a subdivided lot. The Court found that the Contributions Plan was validly made and that the condition imposed was a lawful exercise of the Council's power under section 94. The Court also determined that the provision relating to complying development certificates was valid, and that the distinction in appeal rights between development consent and complying development was a matter for the legislature.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.