Colonial Credits Pty Ltd v Pittwater Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188
Hearing dates:	25 and 26 November 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	At [61]
Catchwords:	MODIFICATION APPLICATION – application to modify contribution required by plan made pursuant to s94 of the Environmental Planning and Assessment Act 1979 – drainage system to be constructed by applicant at no cost to council – separate system – drainage system not to convey water from the site but from stormwater from council drains and roads up catchment from the site – proposed drainage system not works contemplated by s94 contributions plan – application made based on s 94B(3) on the basis that requiring no cost to council of separate drainage system made the s 94 contribution unreasonable – extent of jurisdiction given to Land and Environment Court by s 94B(3) – no jurisdiction to grant reduction sought of the s 94 contribution – no findings on merit of application
Category:	Principal judgment
Parties:	Colonial Credits Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	Counsel: Turvey To, Barrister (Applicant) Scott Nash, Barrister (Respondent) Solicitor: Vanessa Walsh, Gadens Lawyers (Applicant) Odette Adams, King & Wood Mallesons (Respondent)
File Number(s):	10667 of 2015
Publication restriction:	No
Decision under appeal	File Number(s): 10667 of 2015

Contents

Judgment

Introduction

The development consent

Development contributions for community facilities

A reduction in contributions is sought

The proposed drainage system

The evidence

The existing drainage position

The site inspection

Matters requiring determination

The statutory framework

The jurisdictional question

Making findings on the merits

Conclusion

Orders

Judgment

Introduction

1. HIS HONOUR: Colonial Credits Pty Ltd (Colonial Credits) has been granted development consent for a part-Torrens Title/part-Community Title residential subdivision for 29 and 31 Warriewood Road (the site) in Warriewood Valley. The site is on the lower side of the road, being located between the road and Narrabeen Creek. In general terms, the site slopes from the road toward the creek. On the other side of the road from the site, the ground rises in a slight valley to a ridge line to the north-east. This slight valley forms two separate sub-catchments draining toward the site.

2. The necessity for, and who should bear the cost of, an efficient drainage system to dispose of the water draining from the catchment on the other side of the road and otherwise passing across the site forms the basis of these proceedings.

The development consent

3. The development consent came into being through orders of the Court arising from a conciliation conference process conducted pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) in Matter 10332 of 2014 (and modified by further conciliation agreement in Matter 10407 of 2015). As a result of that process, an agreement was reached between Colonial Credits and Pittwater Council (the Council) after the Council had refused Colonial Credits’ development proposals. The Council is the local government…