Carrington Turramurra Two Pty Ltd v Ku-ring-gai Council

[2009] NSWLEC 1139

Land and Environment Court

of New South Wales

CITATION:

Carrington Turramurra Two Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1139

PARTIES:

APPLICANT
Carrington Turramurra Two Pty Ltd

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10073 of 2009

CORAM:

Bly C

KEY ISSUES:

CONSENT ORDERS - DEVELOPMENT CONSENT :- Development contributions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Meriton Apartments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 776

DATES OF HEARING:

06/05/2009

 
DATE OF JUDGMENT: 

6 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Duggan, barrister
Instructed by Hunt & Hunt

RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 May 2009

10073 of 2009 Carrington Turramurra Two Pty Ltd v
Ku-ring-gai Council

JUDGMENT

1 On 14 November 2006 that Ku-ring-gai Council determined that development consent be granted for a residential flat building at 20-28 Turramurra Avenue, Turramurra. Condition 56 of that consent requires the payment of a contribution pursuant to s. 94 of the Environmental Planning and Assessment Act 1979 in the amount of $774,958.78.

2 The applicant in these proceedings has now lodged a modification application pursuant to s. 96 of the Act, seeking a reduction of the above amount. On the basis of the deemed refusal of the application the applicant has now appealed to this Court pursuant to s. 96(1A) of the Act.

3 The council has now obtained advice from Mr D. Brindle, a consulting town planner who, having considered the findings of Talbot J. in Meriton Apartments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 776, concluded that:

In my view it is reasonable for council to take the view that a contribution of $494,137.05 would be consistent with the findings of the Arkbuilt judgment as applied in the Meriton judgment. This is similar to the request in the S96 contribution ($493,971.54) except for a miscalculation by the applicant in the occupancy rate to be used for a credit (3.485 instead of 3.48 used in the Plan).

4 The parties in the proceedings now accept Mr Brindle's conclusion and now agreed that the appeal can be settled on the basis of consent orders tendered as Exhibit 1.

5 I have now reviewed Mr Brindle's advice in the light of Meriton Apartments and there being no remaining matters in dispute I have decided that the appeal should be upheld and the development consent modified accordingly.

6 The orders of the Court are therefore, by consent:

1. The appeal is upheld.
2. Development consent No. 402/06 be modified by the deletion of condition 56 and in lieu thereof the situation of the following condition:
56. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.
TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF 31 ADDITIONAL DWELLINGS IS CURRENTLY $494,137.05
This amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council's Section 94 Contributions Plan to reflect the charges and changes in land values, construction costs and the Consumer Price Index.
This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council's adopted Section 94 Contributions Plan for residential development, effective from 30 June 2004, calculated for additional persons as follows:
1. Community facilities $376.94
2. Park Acquisition and Embellishment works - $4,723.00
Turramurra
3. Sportsground Works $1,318.32
4. Aquatic/ Leisure Centre $27.82
5. Traffic and Transport $63.51
6. Section 94 Plan Admin $100.04
Occupancy rates for different dwellings size:
Small Dwelling (1 bedroom) 1.27 persons
Medium Dwelling (2 bedrooms) 1.78 persons
Large Dwelling (3 bedrooms) 2.56 persons
Verge Large Dwelling (4 bedrooms) 3.48 persons
New Lot 3.48 persons
SEPP (Seniors Living) Dwelling 1.3 persons

3. Exhibit 1 is retained.

_______________________
T A Bly
Commissioner of the Court
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