DMA Strategic Projects Pty Limited v Kogarah Municipal Council
[2005] NSWLEC 196
•03/10/2005
Land and Environment Court
of New South Wales
CITATION: DMA Strategic Projects Pty Limited v Kogarah Municipal Council [2005] NSWLEC 196
PARTIES: DMA Strategic Pty Limited
Kogarah Municipal CouncilFILE NUMBER(S): 41656 of 2004
CORAM: Lloyd J
KEY ISSUES: Development Consent :- s 94 contribution - question of merit - reasonableness of contribution
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), subs-ss 94(1), (2), (11) and (12); s 94B
Development Control Plan No. 5 - Kogarah Town Centre
Kogarah Local Environmental Plan 1998
Section 94 Contributions Plan No. 8 - Kogarah Town CentreCASES CITED: Parramatta City Council v Peterson (1987) 61 LGRA 286
DATES OF HEARING: 10 March 2005 EX TEMPORE JUDGMENT DATE: 03/10/2005
LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
J M Jagot (barrister)
SOLICITORS
Lindsay Taylor Lawyers
C W McEwen SC
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESLloyd J
10 March 2005
LEC No. 11064 of 2004
EX TEMPORE JUDGMENTDMA STRATEGIC PROJECTS PTY LIMITED v KOGARAH MUNICIPAL COUNCIL
1 On 3 September 2003, Kogarah Council granted development consent to the applicant, DMA Strategic Projects Pty Limited, for a mixed use commercial and residential development at Nos. 12-18 Derby Street, Kogarah. The consent was granted subject to a number of conditions, including the payment of monetary contributions for public amenities and public services within the area. The applicant now appeals against those conditions of consent.
2 The conditions in dispute are as follows:
2. As at the date of Development Consent the following contributions have been levied on the subject development under Section 94 of the Environmental Planning and Assessment Act, 1979 and the nominated Section 94 Contributions Plans:1. Section 94 Contributions are to be paid as detailed below in the following condition, and until paid all contributions will be indexed four (4) times each year (on the following dates) to allow for cost increases: 31 January, 31 April, 31 July and 31 October.
TOTAL $587,933.72No. 5 – Open Space – Residential Development $2,960.70
No. 8 – Kogarah Town Centre $574,835.72
No. 9 – Kogarah Libraries $10,137.30
(Buildings $5,917.80 & Books $4,219.50)
3 I note that at the outset the parties have agreed to resolve one issue raised in this appeal, that is, they have agreed that there has been some double counting in relation to the contribution for the Kogarah Library and, as a consequence, that the amount sought by condition 2 of the development consent should be reduced by $2,907.72. It follows that the appeal must be allowed by consent to reflect that agreement.
4 Section 94(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the “EP&A Act”) enables a consent authority to impose conditions of the kind in dispute if it is satisfied that the proposed development “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”. Such a condition is to be imposed, however, only to require a reasonable contribution: sub-s 94(2). And it must be of a kind allowed by and determined in accordance with a contributions plan approved under s 94B: sub-s 94(11). A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal if it is unreasonable, even if it was determined in accordance with the plan: sub-s 94(12).
5 The development site comprises a Presbyterian Church, the church hall and two cottages – the cottages having now been demolished. The proposed development is the demolition of the two cottages that has now occurred, demolition of the rear part of the hall and the erection of a six-storey building having 30 two-bedroom residential units, 1 three-bedroom unit and 1 four-bedroom unit, 822 square metres of retail and commercial space at ground level, 2010 square metres of church hall and associated facilities and a basement car park for 65 cars.
6 The site is part of the Kogarah Town Centre. It is zoned 3(b) Business (Town Centre) under the Kogarah Local Environmental Plan 1998. It is also subject to Development Control Plan No. 5 - Kogarah Town Centre. These planning controls generally allow medium-density residential development above retail or commercial uses with development to occupy substantially the whole of the site.
7 The council has approved a contributions plan under s 94B of the EP&AAct, which applies in the present case, known as the Section 94 Contributions Plan No. 8 - Kogarah Town Centre. The conditions imposed by the council in condition 2 of the development consent have been calculated in accordance with this plan.
8 The applicant submits that the amount of contributions sought by the council in condition 2 fails the test of reasonableness required by s 94(2) of the Act. As I have noted during the hearing, this is a question of merit and does not raise any question of law. The applicant has focused on the contributions sought in relation to Kogarah Town Centre. The public amenities, for which that contribution is sought, as I understand it, are for streetscape, open space and public domain works, traffic facilities, community facilities, parking, stormwater filtration and flood control. Public domain is a reference to the streets, footpaths, parks and squares which are enjoyed by the public.
9 The works proposed to be carried out under the Contributions Plan include footpath widening, footpath paving, tree planting, traffic calming, bundling of overhead cables, the provision and embellishment of Kogarah Town Square on land already acquired by the council for that purpose and the embellishment of some 3000 square metres of land owned by the Department of Education for use as open space.
10 The need for streetscape and public domain works is said to arise from the fact that the Kogarah Town Centre will change in scale and form from mainly single and double-storey development with an average site coverage of forty percent to six or seven-storey development with up to one hundred percent site coverage and built to the street alignment.
11 According to Mr K L Kennedy, the town planner, who gave evidence for the council in two reports furnished by him, those works are a response to such new development, including the subject development, and serve the following purposes:
1. To provide reasonable landscaping to the frontage of new development. (New development is generally built to the site boundary with no room for landscaping within the site.)
2. To mitigate the impact of new development.
3. To upgrade and widen footpaths to allow for the greater population.
4. To mitigate the impact of increased traffic and traffic diversions.
5. To provide streets and public domain of a standard that is suitable as an additional recreation resource for the additional population.
12 According to Mr T P Byrnes, the town planner who gave evidence for the applicant, however, the recovery of the full cost of these works from new development within the town centre is unreasonable. Those persons who will generate a need for and who will benefit from the works will also include existing workers and residents in the Kogarah Town Centre, existing congregations of churches in the town centre, persons using existing civic institutions such as the council chambers the court-house and the police station, students attending a number of schools and TAFE colleges and those using the railway station or visiting the town centre, that is, the demands of the wider population are ignored in the equation.
13 The cost of the individual improvements for which the contributions are sought is not in issue. The apportionment of those costs is, however, in issue. According to Mr Byrnes, under the scheme proposed by the council the existing population pays nothing, notwithstanding that it will use and benefit from the amenities to be provided.
14 Mr Byrnes states that as a town centre, the beneficiaries of the works are wide-ranging and the cost of the benefits has not been distributed proportionately among them. Both the Contributions Plan and condition 2 of the development consent charge the costs to the new population exclusively. He says there is already a shortfall in the level of facilities and amenities in the town centre and it is not reasonable to presume in such circumstances that the new population alone is the sole generator of the need or the sole beneficiary of the works, that is, the works make for an attractive district-wide shopping and business destination.
15 Despite Mr Byrnes’ thoughtful and carefully reasoned argument, however, I find myself unable to agree. I have had the benefit of a view of the development site and the town centre with representatives of the parties. It appears that the amenity of the Kogarah Town Centre is at present suitable for existing residents and workers and the streetscape and public domain satisfactorily meets the reasonable requirements of the existing population of both residents and workers. That is the impression I gained on the view. That is not to say, however, that it would remain suitable for the new developments now permitted by the Local Environmental Plan and the Development Control Plan. This conclusion is supported by the opinion of both Mr Kennedy and Mr Smith, whose reports are in evidence: they state that the amenity of the town centre is suitable for the existing workers and residents, but the streetscape and public domain are not suitable for the new development which is now occurring and which is permitted by the zoning. As I have said, this is also my impression as a result of the view.
16 The primary physical change effected by the planning controls are the increases in building height and residential density typified by the proposed development in the present case, with a permitted site coverage of up to one hundred percent. Most development within the area will be built to the street without landscaping, such as the proposed development here. The only private open space available to occupiers of this building is a balcony.
17 The proposed public domain and streetscape works for which the contributions are sought will provide an enhanced streetscape and landscape context in a similar way that landscaping and setbacks provide such amenity in development elsewhere. The proposed streetscape and public domain works are concentrated where the development will occur. I thus accept the views of Mr Kennedy that the streetscape and public domain works serve the purposes which he has described and to which I have already referred.
18 As far as open space is concerned, Mr Byrnes has recalculated the contributions based upon what he estimates is a reasonable proportion of the cost of those works, having regard to such matters as the utility of the spaces, the distance from the subject development site and the like. This, however, is not the correct approach. In Parramatta City Council v Peterson (1987) 61 LGRA 286, Stein J held that in the case of a sub-regional centre it is permissible and, indeed, necessary to look at the centre as an integrated whole; and to match the proposed amenity to the specific development is to adopt a fragmented approach to planning which is neither justified nor workable. (See the comments of Stein J at page 297). The Kogarah town centre is a sub-regional centre.
19 I therefore accept the approach of Mr Kennedy and the validity of the reasons he advances in his report for the contribution sought in this case; that is, it would be an unreasonable impost on the council on behalf of existing residents if it had to pay any portion of the cost of what is no more than an appropriate increment in the open space facilities for the additional population. For example, if the local open space to be provided on the school site is only available out of school hours and therefore only suitable for residents, it would thus not be appropriate for those, other than the local residents who will use it, to pay for it: most existing residents live in areas of low or medium density housing and which has its own private open space.
20 I thus accept Mr Kennedy’s opinion that the only reason for the contribution sought is to provide extra capacity for the additional population and to mitigate the impact of the new development and more people in the town centre.
21 It follows that the principal challenge to the condition fails, but the formal order is that the appeal is allowed to reflect the agreed reduction of $2907.72, which was double counted in the contribution for library facilities. The formal orders will reflect that. The exhibits may be returned.
I hereby certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.Associate:Dated: 26 April 2005
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