Dogild Pty Ltd v Warringah Council

[2008] NSWLEC 53

Reported Decision: (2008) LGERA 429

Land and Environment Court

of New South Wales

CITATION:	Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Dogild Pty Ltd ACN 085 278 682 RESPONDENT: Warringah Council
FILE NUMBER(S):	10579 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Development Consent :- validity of condition of development consent requiring right of carriageway in favour of others over which the public can pass - Newbury tests of validity - meaning and application of test that condition must "fairly and reasonably relate" to permitted development - whether condition requires dedication of land within s 94 Environmental Planning and Assessment Act 1979
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 5, 26(1)(c), 27, 79C(1), 80A, 94, 94B, 96 Environmental Planning and Assessment Regulation 2000 cl 100(1) Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 s 34 Warringah Local Environmental Plan 2000
CASES CITED:	Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1 Hammercall Pty Ltd v Gold Coast City Council (2004) 140 LGERA 303 Hill v Blacktown City Council (2007) 154 LGERA 418 King v Bathurst Regional Council (2006) 150 LGERA 362 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 Markakis v Mosman Municipal Council [1998] NSWLEC 223 MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59 McGregor v Bathurst City Council [1995] NSWLEC 71 Melbourne Water Corporation v Domus Design Pty Ltd (2007) 154 LGERA 256 Newbury District Council v Secretary of State for the Environment [1981] AC 578 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 Parramatta City Council v Peterson (1987) 61 LGRA 286 Save our Street Inc v Settree (2006) 149 LGERA 30 St George Building Society v Manly Municipal Council (1982) 3 APA 370 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245
DATES OF HEARING:	1 and 2 November 2007; 14 December 2007
DATE OF JUDGMENT:	14 February 2008
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti, SC SOLICITORS: D.C. Balog and Associates RESPONDENT: Mr A Galasso, SC SOLICITORS: Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

14 February 2008

10579 of 2007

DOGILD PTY LIMITED v WARRINGAH COUNCIL

JUDGMENT

1 HIS HONOUR: The only remaining question in this merits appeal, which has otherwise been resolved, is whether a condition of a council development consent requiring the creation of a right of carriageway over the applicant’s land is invalid because:

(a) it does not satisfy the second and third of the euphemistically named “ Newbury ” tests: Newbury District Council v Secretary of State for the Environment [1981] AC 578; or

(b) it requires the dedication of land free of cost and is governed exclusively by s 94 of the Environmental Planning and Assessment Act 1979 ( EPA Act ) but is not authorised by that section because there is no relevant contributions plan under s 94B.

2 At stake is whether the council can, in this way, require the applicant to create the right of carriageway free of cost to the council.

3 Although originally framed as a question of law, the separate question proceeded on the basis of a full hearing on the merits concerning the relevant facts and circumstances of the case.

THE LAND AND THE STRAND PROPERTIES

4 The applicant Dogild Pty Ltd is the owner of land at 9 -11 The Strand, Dee Why (the Land). The Land is one of a number of parcels that have their principal frontages to The Strand between Oaks Avenue to the south and Howard Avenue to the north (Strand Properties). The Strand Properties, including the Land, predominantly comprise shop top housing developments, generally three to four storeys in height and containing restaurants and cafes at street level and residential units on the upper levels. There are about 50 to 70 individual strata owners in the Strand Properties. On the other side of The Strand is Dee Why Beach parkland and the ocean beach.

5 The Land is a battleaxe block. Vehicular access to the rear of the Land and its carpark is achieved only from Oaks Avenue by the handle of the battleaxe, which is approximately three metres wide. Pedestrian access to the Land is available only to and from the Strand.

6 The only other one of the Strand Properties with access to Oaks Avenue is the property to the immediate south of the Land (a strata complex with nine strata lots), which is on the corner of Oaks Avenue and The Strand. Vehicular access to Strand Properties to the north of the Land is from Howard Avenue over a right of carriageway across the rear of those properties. Vehicles accessing those Strand Properties cannot physically access the Land for two reasons. First, there is a low concrete wall along the northern boundary of the Land from the rear of the existing building to the western boundary. Secondly, the level drops by about 700 millimetres on the northern side of that boundary.

7 The Land’s principal frontage and eastern boundary to The Strand is 16.76 metres. Its western boundary is 33.53 metres. Its northern boundary is 45.72 metres. Its southern boundary along the battleaxe handle on Oaks Avenue is approximately 3 metres. The Land is shown on Deposited Plan 789550.

the development consent and the disputed condition

8 On 26 September 2006, the respondent, Warringah Council, granted development consent for the demolition of the existing building on the Land, and the construction of a four storey (with a fifth storey component) mixed residential and commercial development consisting of two shops, 12 residential units and 24 car parking spaces including basement parking.

9 Condition 89 of the development consent is the condition in issue. It provides for the creation of a right of carriageway over a lane to the rear of the Strand Properties. Condition 89 in the notice of determination, as amended during the hearing to remove possible ambiguity, provides as follows:

89. Right of Carriageway over Rear Laneway

A Right of Carriageway (under the provisions of Section 88B of the Conveyancing Act) is to be created over the rear of the subject site, being a 6.1m wide section adjacent to the western boundary at the rear of the building and the 3m wide battleaxe handle extending to Oaks Avenue to provide for reciprocal rights of way over this portion of the site which forms part of the laneway. Such right of way access is to be granted to each of the lots fronting The Strand between Oaks Avenue and Howard Avenue and adjoining the subject property to the north and south.

The Section 88B instrument shall be accompanied by a survey plan detailing the location of the right of way and endorsed by Warringah Council prior to the issue of the Interim/Occupation Certificate.

Reason: To ensure public access over the laneway and proper management of land in accordance with the development consent, the provisions of Warringah Local Environmental Plan 2000 and the Conveyancing Act.

10 On or about 19 December 2006, pursuant to s 96 of the EPA Act, the applicant lodged with the council an application to modify the consent by effecting changes to the built-form of the development and, in addition, the deletion of Condition 89. There was a deemed refusal of the application.

11 The applicant appealed on the merits to this Court. The merit matters were considered by the Court pursuant to s 34 of the Land and Environment Court Act 1979 and are the subject of a negotiated agreement between the parties. The only remaining issue is whether the disputed condition is invalid.

12 The council’s Statement of Facts and Contentions filed in the proceedings (p 10) states:

Right of Way Laneway (Condition 89) – The applicant was also advised that Council would be unlikely to support the deletion of Condition 89 for the following reasons:
(i) The creation of a right of way over the 6m wide laneway is consistent with the requirements imposed on the other properties between Howard Avenue and Oaks Avenue,
(ii) The consent for the development was contingent upon the creation of the right of way,
(ii) The requirement represents a reasonable and appropriate means of ensuring and [sic] orderly development of land fronting The Strand,
(iv) No legal advice or planning advice was submitted with the current application to justify the deletion of Condition 89.

COUNCIL’S LONG STANDING INTENTION

13 It has been the council’s intention since 1969 that there be a vehicular lane some six metres wide at the rear of the Strand Properties running between Oaks Avenue and Howard Avenue. On or about 21 September 1982, the council prepared and registered DP629261 which contained the description "Plan of proposed right of carriageway within Lots 10, 13, 14, in section B of DP 6953, Lots A and B in DP 412474, Lots A and B in DP 306167 and Lots 1 and 2 in DP 392259” for the purpose of acquisition of a 6.095 metre wide right of carriageway at the rear of the Strand Properties. The right of carriageway would give reciprocal rights of carriageway to owners of Strand Properties so that legal access could be obtained to the rear of those properties.

14 Minutes of a meeting of the council’s property management panel in 1982 recorded with reference to the Strand Properties:

Council identified the need for rear access to the above properties in about 1977 in an endeavour to minimise the need for on-street parking in The Strand and to provide access for garbage and delivery services without interfering with the beachfront activities associated with the frontages of these developments. The Strand is a classified main road (MR No 530) and carries a relatively high volume of traffic, viz, A.A.D.T. 12990.

It was decided to gain Rights of Way over the rear 6.095m (20 feet) of the sites as part of the Land Use Consents on each of the developments as they proceeded. The Rights of Way were not to be formalised at that time but Council was protected in the matter by entering into a legal agreement binding the applicant to grant the Right of Way when called upon to do so.

This has proceeded since 1977 and (five) 5 of the (eight) 8 properties in the block are now committed; (four) 4 by virtue of agreements obtained in this manner and a fifth by virtue of a separate agreement negotiated by one of the applicants as part of the application for land use. To facilitate traffic management it is essential that the R.O.W. run the full length between Howard and Oaks Avenues. Three properties remain for complete implementation of the Right of Way to be effected.

A plan is attached indicating, hatched, the properties over which agreement has been reached.

15 The Dee Why Urban Design Strategy, commissioned by the council in 1997, relevantly stated:

A lane between Dee Why Parade and Howard Avenue, and between Howard Avenue and Oaks Avenue is envisaged for all future vehicular access.

16 The Warringah Local Environmental Plan 2000 contains a “Desired Future Character Statement” for the locality which includes the statement:

A laneway will be established between…Howard Avenue and Oaks Avenue for access and servicing of development fronting The Strand.

17 Over the years all owners of Strand Properties to the north of the Land created reciprocal rights of carriageway by entering into a deed of agreement, in connection with development consents, to grant a 6.1 metre wide right of carriageway adjacent to their rear western boundary. Only the owners of the Land and of the only Strand property to its south (on the corner of Oaks Avenue and the Strand) have not done so. The disputed condition is an attempt to bring this about in relation to the Land with the object of enabling, for the first time, vehicular traffic to flow between Oaks Avenue and Howard Avenue along the carriageway. However, the carriageway would be only three metres wide at the neck of the Land’s battleaxe shape. This could not be overcome unless the owner of the Strand Property to the south of the Land widened it or a strip of that property were to be resumed. The hope of the council is that somehow such traffic flow will be one way, which is critical to resolving traffic problems in the laneway at the rear of the Strand Properties to the north of the Land caused by vehicles, including garbage trucks, entering from Howard Avenue and having to manoeuvre so as to exit in the same direction.

18 The written evidence of Mr Steve Findlay, the council town planner who assessed both the original development application and the modification of consent application, included the following:

2.6 I have reviewed the relevant policies of Council and it is clear from those and my experience that Council’s intention was to establish a laneway at the rear of the properties fronting The Strand, between Oaks Avenue to the south and Howard Avenue to the north has been a long term planning and traffic management goal for this commercial precinct. The sensitive interface of this commercial strip with The Strand and the adjoining parklands and ocean reserve of Dee Why Beach to the east precipitated a desire to separate the pedestrian environment and active street front to The Strand from cars, delivery trucks and garbage trucks which service the commercial uses.
…
2.30 The provision of a laneway has been a town planning, urban design and traffic planning objective for the orderly development of land along The Strand since at least 1986. Over the years individual landowners have, as part of obtaining development consent from Council, entered into Deeds of Agreement to grant reciprocal rights of carriageway over their properties to facilitate the creation of the laneway from Oaks Avenue to Howard Avenue.
2.31 The requirement for the establishment of a laneway is a crucial part of the desired future character outcomes underpinning theE18 Locality Statement of Warringah Local Environmental Plan 2000.
2.32 In planning and urban design terms, the provision of access from the rear of premises fronting The Strand is better, as it provides for a more consistent and unified streetscape which is not dominated by driveways to access to individual buildings and avoids the need for service vehicles to park on The Strand. Such an outcome is positive from an urban design perspective, as it creates more active street fronts for building facades and promotes and encourages life on the sidewalk, with higher levels of amenity for patrons of cafes and restaurants, most of which have open interfaces with the pedestrian zone. Further, the absence of driveways and kerbside parking for service vehicles minimises the scenic impact of development on the sensitive parklands and ocean beach reserve opposite the site.
2.33 The rear access to properties fronting The Strand is an effective means of managing traffic associated with these developments, as it minimises commercial and residential vehicle movements on The Strand and reduces pedestrian conflict along The Strand. By allowing service vehicles to access loading docks, garbage trucks to collect residential and commercial garbage and resident’s cars to access basement carparking, all of that vehicular activity is largely removed from the public domain. In my opinion, based on my experience in dealing with similar developments within the locality and more generally within Warringah and elsewhere, the provision of rear access is important for the orderly, practical and convenient functioning of these developments.
2.34 The consequences of not opening up the laneway are continued conflict, congestion and chaos in that part of the laneway north of the subject site to Howard Avenue. Documented and anecdotal evidence from the property owners between No 12 and No 18/19 The Strand (as summarised in the Statement of Facts and Contentions) confirms that the existing situation is chaotic, confusing and causing confrontation. Delivery vehicles currently enter the laneway form Howard Avenue and must exit the laneway form the same end. Once a truck is unable to turn and exit in a forward direction, subsequent trucks are prevented from entering the laneway. The full 6 metre width is required for trucks to pass and as a number of properties do not have provision for onsite turning, the flow through that would be created by opening up the laneway would be highly beneficial and significantly reduce vehicular conflict within the laneway.
2.35 There is a fundamental need for a through-way laneway to be created to alleviate these problems, which inevitably results in a negative impact on residential properties adjoining the laneway to the west and for residents occupying the upper levels of developments fronting The Strand in terms of noise, including the sounding of horns, greater number of truck movements, abusive drivers and the like.

(emphasis added)

19 Mr Findlay’s evidence in cross examination included the following.

20 He said that the resolution of the conflict, congestion and chaos in the lane at the rear of the Strand Properties to the north, of which he spoke in paragraph 2.34 of his report, was dependant upon the laneway between Oaks and Howard Avenues being one-way. Such chaos, conflict and congestion has never existed on the Land. He said that the intention of the council ultimately was to make the lane one-way. When asked how council intended to make it one-way, he indicated that it would be in consultation with the property owners who would determine it collectively. If consensus could not be reached he was not sure what would happen but assumed the council’s solicitors would have to find a mechanism.

21 For all practical purposes, he agreed, it would be impossible to stop the general public from using the proposed laneway in vehicles or on foot and parking in the lane. The council had no ability to exclude access by the general public nor to control or manage traffic on the proposed carriageway (including controlling speed, parking and direction of traffic) other than by erecting signage, which it could not enforce because it had no proprietary interest in the right of carriageway. If the laneway were acquired by the council and made into a public laneway, the council would have power to control traffic over the laneway, including erection of one way traffic and no standing signs. But if the laneway remained in private ownership, the council would have no ability to control traffic in the same way.

22 Mr Findlay said that parking is at a premium in the area. The council would have no authority to issue infringement notices for illegal parking in the lane, in contrast to its ability to do so nearby where it has meters and signs.

23 He acknowledged the disbenefit to the Land, and in particular, to residential units thereon whose balconies would overhang the laneway, caused by the movement of garbage trucks to service the Strand Properties to the north.

24 The Warringah Local Environmental Plan 2000 relevantly provides that buildings are not to exceed three storeys nor 13 metres. Clause 20 provides that consent can be granted even where development does not comply with one or more development standards provided that the development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. But for the lift overrun, the proposed building on the Land complies with the 13 metre height limit but not the three storeys limit. Other recent developments of Strand Properties have four storey street frontages. After these matters were put to Mr Findlay in cross-examination, he gave the following evidence:

Q. And you don’t suggest that it [the council] traded off an exceedance in height for the fact that condition 89 was being…
A. No not at all, no condition 89 was basically to support the requirement for the laneway.

25 I accept generally the evidence of Mr Findlay to which I have referred, subject to the following.

26 On the issue of nexus between the disputed condition and the permitted development, Mr Findlay said in his report:

2.36 The nexus between the requirement for a right of way over the subject site and the proposed development of the site for shop top housing is the attainment of the long term goal of implementing an orderly means of managing the traffic generated by this development and in a manner which is integrated with and consistent with the expectations of Council and the other individual landowners.
2.37 In particular, the establishment of the right of way over 9-11 The Strand will allow garbage trucks to use the laneway to service the proposed development by enabling trucks to proceed from Oaks Avenue to the rear of the building and exit via Howard Avenue or vice versa, rather than having to process bins at the kerbside in Oaks Avenue or having to reverse out of the site, which would be unsafe and contrary to good practice for this type of activity. This means more efficient and safer servicing arrangements will be available. The same applies to larger delivery trucks which would not be able to access the site due to the inability of the truck to manoeuvre onsite. Such trucks will also be able to leave via the laneway to Howard Avenue

27 In oral evidence, Mr Findlay said he saw it as more efficient than the present system if vehicles entering from Oaks Avenue to visit the Land could proceed one way to Howard Avenue rather than enter, turn around and exit to Oaks Avenue, in that it would avoid possible conflict with entering vehicles in the short 3 metre wide section from Oaks Avenue. I am unpersuaded that there is a traffic management issue generated by the permitted development which provides a real or sufficient nexus with the requirement of the right of carriageway. The fundamental explanation for the condition lies in the council’s longstanding intention concerning the laneway and the traffic management problems in the segregated lane servicing the Strand Properties to the north of the Land.

28 I agree generally with the following analysis of the benefits and disbenefits of the proposed right of carriageway for the Land in the statement of evidence of Mr G W Smith, planning and development consultant, called in the applicant’s case:

4.11 The benefit which the Applicant would receive is that its tenants or future occupiers may have the choice of being able to drive their cars out onto Howard Avenue as well as to Oaks Avenue which is scarcely of much consequence. That is the more so when Mr Varga (in his Statement of Evidence to which I will turn later) suggests the “ lane ” would need to operate with one way traffic flow.
4.12 To consider the disbenefits that the Applicant would confront, it is necessary to appreciate that – at present and after the proposed redevelopment if Condition 89 is deleted – its tenants (or future owners) can and would enter a private yard to reach their parking; trucks servicing the property (including garbage trucks) can and would enter and manoeuvre on the property; and there is no flow of vehicles or pedestrians across the property. If the so-called laneway is opened, not only may vehicles going to and from the properties to the north drive across the rear of No 9-11 but vehicles driven by members of the public at large could use it as a bypass for the congestion on The Strand. Similarly, members of the public on foot may wander through the lane. Whereas, at present, it is possible to identify unauthorised persons at the rear of No 9-11, that would not be the case if the laneway was opened. Some members of the public may elect to park along the lane. Apart from reducing the privacy, safety and amenity of No 9-11, who is going to control any illegal use of the lane or of parking along it? Who will be responsible for its upkeep and lighting? Who will be liable if someone has an accident in the laneway? Will the Traffic and other Acts apply?
…
6.3.2 As I see it, Condition 89 provides no benefit to the Applicant. It may solve the traffic problems allegedly faced by the land owners to the north. On the other hand, Condition 89 would bring disbenefits of other kinds to the Applicant and the other land owners. It is not a condition which is necessary for the construction or use of the proposed development…

29 Section 80A of the EPA Act authorises a consent authority to impose conditions of development consent in a range of specified circumstances including, relevantly, the following:

80A Imposition of conditions

(1) Conditions—generally
A condition of development consent may be imposed if:
(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or
…
(h) it is authorised to be imposed under…section 94…

30 If a development application is granted subject to conditions, a notice of determination of the application must contain the council’s reasons for the imposition of conditions: cl 100(1) of the Environmental Planning and Assessment Regulation 2000. This is the explanation for the reason attached to the disputed condition.

31 Matters referred to in s 79C(1) of relevance to the development on the Land the subject of the consent include “the public interest” and “the provisions of” an “environmental planning instrument”. A relevant environmental planning instrument is the Warringah Local Environmental Plan 2000, which describes the desired future character of the Strand, including a laneway between Howard and Oaks Avenue, as follows (appendix E):

DESIRED FUTURE CHARACTER

The Strand will be a vibrant locality comprising a mix of leisure, office and residential uses, interspersed by a range of complementary and compatible uses. Ground floor premises will be characterised by restaurants, cafes, shops and leisure-related uses that create active building fronts and contribute to the life of the streets. Housing will characterise upper floors.

The interrelationship between the beach and park and development along The Strand is an important aspect of the character of the locality. The design of buildings and shopfronts will have a strong complementary relationship to their beach and parkland setting and help create comfortable, interesting and safe pedestrian environments. Outdoor eating areas in particular will be encouraged.

Above the second storey, buildings will step back from The Strand, Oaks and Howard Avenues and Dee Why Parade and building height will be restricted to maintain solar access to the parklands and ensure the scale of the buildings does not dominate public spaces or views from the park or beach.

The corners of Howard Avenue and The Strand, however, are to be strongly defined by virtue of building height and design.

A laneway will be established between Dee Why Parade and Howard Avenue and between Howard Avenue and Oaks Avenue for access and servicing of development fronting The Strand.

32 Section 94, which is referred to in s 80A(1)(h), relevantly provides:

94 Contribution towards provision or improvement of amenities or services

(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.

33 Section 94B(1) imposes a restriction on the imposition of a condition under s 94:

94B Section 94 or 94A conditions subject to contributions plan

(1) A consent authority may impose a condition under section 94 or 94A 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).

34 It is common ground that there is no relevant contributions plan in the present case. Thus, if the condition in issue requires a dedication of land and is governed exclusively by s 94(1), as the applicant contends, it is invalid because there is no contributions plan, if for no other reason.

35 The objects of the EPA Act include in s 5(a)(ii) “to encourage…the promotion and co-ordination of the orderly and economic use and development of land”.

36 It is permissible for an environmental planning instrument to make provision with respect to the reservation of land for a public purpose. Where it does so, it must make provision for the acquisition of the land, whereupon compensation is payable under the Land Acquisition (Just Terms Compensation) Act 1991: see EPA Act ss 26(1)(c), 27. Consequently, provision could have been incorporated in council’s local environmental plan for a public carriageway over the Land to overcome the traffic difficulties on the rear of the Strand Properties to the north. Compensation would then have become payable.

37 The “Newbury tests” or principles were formulated by the House of Lords to test the validity of an apparently unlimited statutory power to impose planning conditions. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 607G Lord Fraser held that the power was nevertheless subject to certain limitations:

In order to be valid, a condition must satisfy three tests. First, it must have a planning purpose. It may have other purposes as well as its planning purpose. But if it is imposed solely for some other purpose or purposes, such as furtherance of the housing policy of the local authority, it will not be valid as a planning condition: see Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720. Second, it must relate to the permitted development to which it is annexed. The best known statement of these two tests is that by Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 which has been followed and applied in many later cases. Lord Denning said. at p. 572:
Although the planning authorities are given very wide powers to impose such conditions as they think fit , nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.
One reason, relevant to the instant case, why it would be wrong to secure removal of buildings by the use of a condition unrelated to the permitted development is that it would enable the planning authority to evade its liability to pay compensation for removal under section 51 of the Act of 1971. Thirdly, the condition must be reasonable in the rather special sense of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229. Thus it will be invalid if it is so clearly unreasonable that no reasonable planning authority could have imposed it…

38 The decision that these were the three tests was unanimous: Viscount Dilhorne at 599H, Lord Edmund Davies at 601G, Lord Scarman at 618H-619A, Lord Lane at 627B. It was acknowledged that there was overlap between the second and third tests: at 608D, 618H-619A. Lord Scarman said that “it is possible, though unusual, that a condition could in an exceptional case satisfy the first two tests but fail the third”: at 619A. Lord Lane indicated that even if the first two tests were satisfied, nevertheless the third would be failed “if the effect of the condition would be to impose an obviously unreasonable burden upon the appellant” at 627D.

39 In Newbury the plaintiff had applied for planning approval for the change of use of aircraft hangars to a commercial warehouse. The local authority granted approval on condition that the buildings were removed by a specified date about 10 years in the future. The House of Lords held that the condition was void because it did not satisfy the second test. Lord Fraser held at 609E that the condition:

…was not sufficiently related to the permission and was therefore invalid. There was nothing that I can see about the change of use to a wholesale warehouse which required or justified a condition for removal of the buildings. The reason why the planning authority ordered their removal was to improve or restore the amenity of the neighbourhood by getting rid of ugly buildings. No doubt that was a very proper object, but it had nothing particularly to do with the use of the buildings as warehouses.

Lord Lane said at 628H:
No doubt a condition requiring the removal of a building will usually relate to the permission only if the permission has been to erect a new building. There may however be exceptional cases…where a requirement to remove could properly be said to relate to a mere permission to change the use. In short, the test is, does the condition fairly relate to the permission?

40 In New South Wales there is now an express statutory power to impose a condition of the kind invalidated in Newbury, albeit restricted by a time limitation, under s 80A(1)(d) and (e) of the EPA Act:

80A A condition of development consent may be imposed if:

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in (d)

41 This Court has often applied Newbury to test the validity of conditions of development consent under the EPA Act: for example, in Parramatta City Council v Peterson (1987) 61 LGRA 286 (Stein J); King v Bathurst Regional Council (2006) 150 LGERA 362 at 387 (Jagot J); Markakis v Mosman Municipal Council [1998] NSWLEC 223 at [5], (Lloyd J); Hill v Blacktown City Council (2007) 154 LGERA 418 at [41] (Jagot J); Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [26] (Lloyd J). The NSW Court of Appeal approved the Newbury tests in Lake Macquarie City Council v HammersmithManagement Pty Ltd (2003) 132 LGERA 225 and Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [80] (where the Newbury tests were referred to without reference to the Newbury case). In Lake Macquarie City Council v Hammersmith Management Pty Ltd, a case under s 94 of the EPA Act, Tobias JA (Mason P and Young CJ in Eq agreeing) held that the Newbury tests were additional to the requirements of the statutory phrase in s 94(1) “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”. His Honour held at [52] – [54]:

[52] In my opinion, a condition can only be validly imposed pursuant to s 94(1) if:
(a) one or other of the limbs of the statutory phrase is satisfied;
(b) the condition satisfies the Newbury test of being:
(i) for a planning purpose;
(ii) fairly and reasonably relating to the development; and
(iii) not being so unreasonable that no authority would have imposed it.

The application by the Land and Environment Court of the Newbury test to s 94 of the Act was confirmed by this Court (Beazley JA, Priestley and Sheller JJA agreeing) in Russo and Ors v Burwood Municipal Council (unreported, Supreme Court, NSW, No 40668 of 1993, Priestley AP, Sheller and Beazley JJA, 25 November 1996).


[53] The third Newbury test is a restatement of the test of reasonableness in the special sense expressed by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229. It is a test going to the validity of a condition and is not to be confused with the merit requirement of reasonableness mandated by s 94(2).

[54] So far as the first Newbury test is concerned, it would generally be satisfied if one or other of the limbs of the statutory phrase was satisfied. The same comment applies (at least in most cases) to the second Newbury test. As was submitted by the Council during argument, the reference in the statutory phrase to public amenities and public services is in general terms and not directed to any particular public amenity or public service. In other words, it refers to a type of amenity or service rather than a particular amenity or service. Thus, in Peterson the statutory phrase was satisfied because the development generated a need (in that it increased the demand) for the provision of an off-street car park. The only question in that case related to the particular off-street car park in respect of which the monetary contribution was sought. It was in that context that the second Newbury test became relevant.

42 The only High Court case in which Newbury appears to have been cited is Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 (“Temwood”). McHugh and Callinan JJ considered Newbury, Gummow and Hayne JJ cited it without more in a footnote (at [93] fn 131) while Heydon J did not refer to it. In that case a subdivision of land was approved under Western Australian town planning legislation subject to a condition that a portion of the land be vested in the Crown free of cost and without payment of compensation by the council. The condition was held to be valid on the basis that it had been bona fide imposed for a legitimate planning purpose and was reasonably related to the proposed development. McHugh J at [55] noted that the Full Court of the Supreme Court of Western Australia had applied the reasoning in Newbury. McHugh J adopted the Newbury test at [57]:

[57] The Commission also does not dispute that a condition attached to a consent must reasonably and fairly relate to the development permitted. A condition attached to a grant of planning permission will not be valid therefore unless [This test was articulated by the House of Lords in Newbury District Council [1981] AC 578.]:
1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.

[58] A condition attached to a grant of planning permission may be invalid although its ulterior purpose is not the sole purpose [ Thompson (1950) 81 CLR 87 at 106] . If the ulterior purpose is a substantial purpose [ Thompson (1950) 81 CLR 87 at 106] for which the authority is exercising its power, the condition is invalid. Counsel for Temwood conceded that the purpose of reserving the Foreshore Reserve was a proper town planning purpose. The question is whether the condition was imposed for a proper planning purpose.

43 Callinan J doubted whether the third Newbury test of Wednesbury unreasonableness was necessary and said that it served to confuse rather than illuminate: at [155]. However, his Honour did not refer to the example given by Lord Lane in Newbury that the third test would be failed even where the first two tests were passed, if the effect of the condition would be to impose an obviously unreasonable burden upon the appellant (see [38] above). Callinan J said at [155] – [156]:

[155] …It may be doubted whether the third limb of the test is necessary. It uses the language of Wednesbury [[1948] 1 KB 223], but if, as the second limb of the test requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case . The reference therefore to Wednesbury unreasonableness serves to confuse, rather than to illuminate the issue in cases of potentially unlawful conditions…

[156] The adoption by this Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bathurst [(1998) 195 CLR 566 at 577] of what was said by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [(1970) 123 CLR 490] does not dictate a different conclusion. It is necessary to keep in mind everything that was said by Walsh J in the passage quoted in Bathurst , in particular that the discretion (to impose conditions) was not unlimited, and that the conditions must be reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised [ Allen Commercial Constructions (1970) 123 CLR 490 at 499]. Neither the purpose nor the function of the authority is to get land for nothing for a planning purpose at large: the function and purpose of the authority is of deciding whether the subdivision should be permitted, and if so, whether any and which conditions reasonably and fairly relate to it and should be imposed.

44 The Newbury tests or principles as articulated by McHugh J in Temwood were cited and followed by the NSW Court of Appeal in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [35], [63] and [78], and in the Queensland Court of Appeal in Hammercall Pty Ltd v Gold Coast City Council (2004) 140 LGERA 303 at [66] and [89]. In Westfield at [78], Basten JA cautioned that “care must be taken not to treat a succinct statement of principles as a formulaic test”.

45 The High Court employed somewhat different language in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499-500. There Walsh J (Barwick CJ and Menzies and Windeyer JJ agreeing) said of such a power that it has to be understood:

…not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council , [[1961] AC 636 at 684] as being the implementation of planning policy , provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained.

46 In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 576 to 577 the High Court held that the power of a council to attach conditions to development consents granted before commencement of the EPA Act was not at large but was attended by the characteristics identified by Walsh J in Allen. The endorsement in Bathurst of the statement in Allen was noted by the High Court in Temwood by McHugh J at [56], Gummow and Hayne JJ at [93] and Callinan J at [156]. Allen was decided before Newbury to which no reference was made in Bathurst. It has been said that the Allen principle accords with the Newbury tests: St George Building Society v Manly Municipal Council (1982) 3 APA 370 at 380 (Senior Assessor Bignold).

47 The view was recently expressed by Gillard J in Melbourne Water Corporation v Domus Design Pty Ltd (2007) 154 LGERA 256 at 270 [49] that the Australian test is not the Newbury test but the Allen test.

48 In my opinion, the Newbury tests derive High Court support from the judgments of McHugh and Callinan JJ in Temwood and are entrenched in decisions of intermediate appellate courts and this court, including decisions of the New South Wales and Queensland Courts of Appeal following McHugh J in Temwood. They are a succinct and convenient statement of principles and may be viewed as a refinement of the statement in Allen.

49 As to the first Newbury test that a condition must have a planning purpose, that purpose must be derived from the statutory source of power. McHugh J said in Temwood at [57]: “A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning”. Similarly, Basten JA said in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [85]: “the scope of a legitimate planning policy, and hence a lawful purpose of the consent authority, must be derived from the statutory source of the power being exercised. Preconceived general notions of what constitutes planning will only give rise to extraneous purposes, to the extent that they fall outside the scope of the statute”.

50 As to the second Newbury test, all the speeches in Newbury indicated that the nature of the nexus is that the condition must “fairly and reasonably relate” to the permitted development. This was accepted in the High Court by McHugh J and Callinan J in Temwood at [57] and [155] respectively; by the NSW Court of Appeal, for example in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2004) 132 LGERA 225 at [52]; and by this Court, for example in Parramatta City Council v Peterson (1987) 61 LGRA 286 at 295 – 296.

51 What is meant by “fairly and reasonably relate”? The authoritative answer in Temwood at [155] by Callinan J is that it means “it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case”. That seems consistent with dicta in Newbury that there is some overlap between the second and third Newbury tests. Quoting and applying that Temwood passage, Lloyd J held in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [29] that satisfaction of the Newbury tests depends upon the circumstances of the particular case. His Honour also said that it was inappropriate to determine a bare legal question whether a condition satisfied the Newbury tests without knowing all the facts and circumstances of the case after a full hearing on the merits (at [29]). In the present case there has been a full hearing on the merits in order to inform the Court of the facts and circumstances of the case.

52 In Parramatta City Council v Peterson (above) Stein J held that “fairly and reasonably relate” means that the development is “benefited” by the public amenity provided. He said at 296 “In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)”. A narrower and more rigid test of an “identifiable nexus” and a “direct connection” was rejected: at 295. Peterson, a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: “The second of the Newbury tests was considered by Stein J in Parramatta v Peterson at 296-7 in which his Honour stated the Court’s approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted development is benefited by the condition imposed”. Peterson was also approved by the Court of Appeal in the s 94 condition case of Lake Macquarie City Council v Hammersmith Management Pty Ltd at 238 [51] where Tobias JA (with whom Mason P and Young CJ in Eq agreed) said in relation to Stein J’s judgment: “His Honour found that…the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear…” Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J’s description) even if it does not benefit the permitted development.

53 An illustration of the application of the second and third Newbury tests is provided by St George Building Society v Manly Municipal Council (1981) 3 APA 370, on which the applicant placed some emphasis. St George proposed to rebuild its existing office building which had a frontage to the Corso, the main retail street in the Manly business centre. The existing building incorporated a pedestrian arcade leading from the Corso to Market Lane and a parking station. The rebuilding would eliminate the arcade. St George offered to provide free pedestrian access through its office during business hours Monday to Friday. It appealed against a condition of approval requiring the building to be redesigned “to provide unrestricted pedestrian access at all times between the Corso and Market Lane”. Senior Assessor Bignold (as he then was) held that the condition did not satisfy the second and third Newbury tests: at 381, 384. He said at 384 that “the disputed condition does not fairly and reasonably relate to the permitted development. In reaching this conclusion the court places particular reliance on the undisputed fact that the proposed development does not itself create any need for the provision of the arcade access and that the question of that access is wholly extraneous to the proposed development”. It was said at 387 that “the disputed condition clearly is directed to secure permanent public access in respect of the redevelopment site and would have the effect of requiring the equivalent of a public right of way at least for the life of the new development”. The respondent argued that St George was distinguishable on the basis of the finding (at 376) that the condition would involve considerable private detriment to St George by virtue of denying it the opportunity to redevelop its existing premises in the manner it considered would best serve its business interests. Application of the Newbury tests in the present case is not dependent on forcing the facts into the confines of that dictum. Nevertheless, it may be said that in the present case the disputed condition also involves significant private detriment to the applicant by requiring it to endure over the Land new and potentially heavy vehicular traffic and pedestrian flows and their consequences.

54 An example of the application of the third Newbury test of Wednesbury unreasonableness is provided by the pre-Newbury case of Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1. There the plaintiffs wanted to develop industrial land which fronted a very heavily used main road. The planning authority granted approval on condition that the plaintiffs construct an ancillary road over the entire frontage of the site and give a right-of-passage over it to and from ancillary roads on adjoining land. This ancillary or service road on the plaintiffs’ land, giving access to the main road at only a limited number of points, would avoid unnecessary further congestion on the main road. The Court of Appeal held that, although the planning object was perfectly reasonable, the terms of the condition were so unreasonable that they were ultra vires.

55 The applicant submitted that:

(a) creation of the right of carriageway will mean that the rear of the Land is effectively turned into a public road. Although the intention of the disputed condition is that the right of carriageway will be open at all times to each of the other Strand Properties in the block and visitors to those sites, it will be open in a de facto way to the public as there will be no way to control access by people to the carriageway. The council planner Mr Findlay accepted this was so;
(b) therefore the development will become exposed to loss of amenity, security and privacy caused by the use of the carriageway. Small trucks and pedestrians will be able to use the carriageway at all times. This affection will cause a loss in value of the Land both by reason of the creation of the right of carriageway and the injurious affection caused by the carriageway to the balance of the Land;
(c) the second (nexus) limb of the Newbury test is not satisfied. The condition does not fairly and reasonably relate to the permitted development. While correction of traffic problems in the locality is a proper town planning consideration, those traffic problems have nothing to do with the proposed development . Nothing about the development requires or justifies creation of the right of carriageway . Put another way, is the right of carriageway “ directly related to the development to be permitted? ”: St George Building Society v Manly Municipal Council (1982) 3 APA 370 at 382 (Senior Assessor Bignold) quoting Newbury at 628;
(d) the condition is manifestly unreasonable. Consequently, the third Newbury test is also not satisfied.

56 The council submitted that the second (nexus) limb of the Newbury test is satisfied because:

(a) redevelopment of the Land is part of a redevelopment of the all the Strand Properties in an orderly and economic way and the quid pro quo for the desired character in the rear lane: see EPA Act s 5(a)(ii); Warringah Local Environmental Plan 2000 desired character statement for the Strand;
(b) direct connection with the permitted development is not required by the second Newbury test. In any event, there is a direct nexus because the applicant has directly benefited from the condition because the height control in the local environmental plan could be, and was, relaxed in circumstances where there is otherwise consistency with the character statement in the locality: cl 20. The height control is for a three storey building. The permitted development is for a four storey building with a fifth storey element. That relaxation must have been because of the council’s satisfaction concerning the consistency of the development with the character statement. This is supported by Mr Findlay’s evidence. That character statement included the provision of the laneway. Thus the laneway, as manifested in the disputed condition, promoted and permitted the benefit derived by the applicant. I reject this submission. It is to the effect that council traded off an exceedance in height for that condition. Mr Findlay in cross-examination was asked whether that was so and he answered that it was not: see [24] above;
(c) the evidence of Mr Findlay establishes that the Land will directly benefit from the creation of the laneway effected by condition 89. The benefits include (i) elimination of the situation which currently exists on the northern boundary of the Land and which would have a detrimental amenity impact on residences on the Land that fronts that boundary; (ii) reduction in the potential for traffic conflict that may arise from two-way traffic in the 3 metre section of the access handle to the Land; and (iii) improved access for garbage trucks to service the development;
(d) section 94 is inapplicable. This is not a condition requiring dedication of land. First, the subject matter is not “ land ” in the sense used in the EPA Act i.e. as a topographical entity and not as a bundle of rights: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, 481. Second, it is not a “ dedication ” of land.

57 The council submitted that, for much the same reasons, the third limb of Newbury is satisfied.

Does the condition fairly and reasonably relate to the permitted development (second Newbury test)?

58 The applicant accepted that the first limb of the Newbury test is satisfied: that is, the disputed condition has a legitimate planning purpose. The applicant submitted that the second and third Newbury tests are not satisfied.

59 Although made for a legitimate planning purpose, the question that arises under the second Newbury test is whether the condition fairly and reasonably relates to the permitted development. I reject the applicant’s submission at [55(c)] above that the second Newbury test requires that the condition “directly” relate to the permitted development. That test was rejected in Peterson, discussed at [52] above. In Newbury, Lord Lane’s reference to “directly related” was a reference to those words in a Ministerial circular: at 628. His Lordship (like all other members of the House) approved the “fairly and reasonably relate” test: at 627B.

60 In my opinion, the condition requiring the grant of a right of carriageway over the Land to the other Strand Properties does not fairly and reasonably relate to the permitted development. It is not fair and reasonable in the circumstances of this case. There are estimated to be between 50 and 70 strata owners in the Strand Properties. They, as well as their invitees and licensees, including customers of shops in the Strand Properties, would be entitled to use the carriageway under the requirements of the condition. In addition, as acknowledged in the reason attached to the condition and in the evidence of the planners, the general public will use this carriageway stretching between Oaks Avenue and Howard Avenue. The council in submissions fairly conceded that it would be wrong to suggest otherwise. The development does not generate the need for such a right of carriageway and public access, and will not benefit from it. The fact that, under the condition, vehicles and pedestrians visiting the Land would have the alternative of entering or exiting from Howard Avenue rather than Oaks Avenue (as at present) does not bring the requirement into any significantly closer relationship with the permitted development. I do not accept that there is any traffic management issue generated by the proposed development which requires vehicles to have that option. The council seeks a carriageway stretching between Oaks and Howard Avenues in order to fulfil its longstanding intentions and, if it can become a one way system, to meet traffic problems in the segregated lane serving the rear of the Strand properties to the north of the Land. However, those traffic problems are not affected by the proposed development nor vice versa.

61 That is sufficient, in my view, to uphold this challenge to the validity of the condition. If it is necessary to go further, I would add the following.

62 The condition does not require a one way system. Under the condition, traffic is free to move in both directions along the narrow lane. The result would be conflict, congestion and chaos on the Land. This is likely to be even greater than that currently existing on the presently segregated laneway behind the Strand Properties to the north. That is because a laneway stretching all the way between Howard and Oaks Avenues would be likely to result in larger traffic flows, and there would be a bottleneck if traffic proceeds south along the 6 metre wide laneway and meets the 3 metre wide neck of the Land’s battleaxe shape. As for the reciprocity requirement of the condition, although owners of Strand Properties to the north of the Land can reciprocate if so inclined, the Strand property to the south of the Land has nothing to reciprocate in terms of the condition and can only add to the traffic volume. Any flow of traffic between Oaks and Howard Avenues is dependent upon relevant owners of Strand Properties agreeing to construct and pay for a ramp to overcome the obstacles of the low wall and 700 mm drop on the northern boundary of the Land.

63 It is critical to the resolution of the traffic conflict, congestion and chaos in the lane behind the Strand Properties to the north that traffic proceed in one direction only. Yet because the laneway is not to be resumed and made a public carriageway, the council has no power to establish a one way system nor to police a one way system were it to be established. The establishment of a one way system would be dependent upon future agreement between all the owners of the Strand Properties who, if they agreed, would also have to agree to install and pay for associated signage in order to make the one way system work. Even in that event, the council would have no policing powers to ensure that a consensual one way system over private property was observed by users.

64 In my opinion, for these reasons, the condition fails the second Newbury test.

Wednesbury unreasonableness (third Newbury test)

65 The applicant submitted that the condition also fails the third Newbury test as the condition is so unreasonable that no reasonable planning authority could have imposed it. This is the Wednesbury test of unreasonableness named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The stringency of the Wednesbury test has often been noted and a challenge on this ground only occasionally succeeds. The authorities were reviewed in this Court in MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59 at [48] by Jagot J and in my judgments in Save our Street Inc v Settree (2006) 149 LGERA 30 at [27]-[31] and Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. Since I have upheld the challenge based on the second Newbury test, it is unnecessary to rule on this submission. However, if it were necessary to do so, then notwithstanding the stringent and exceptional nature of the third test, I would be inclined to hold that the condition fails the third test in the present case given the extent of the burden on the Land resulting from use of the carriageway by the owners of the other Strand Properties, their invitees and licensees and the general public, and the consequences of that use.

Section 94

66 The applicant’s alternative submission is that the disputed condition requires a “dedication of land” within the meaning of s 94(1) of the EPA Act, is exclusively governed by that provision, and is invalid because there is no relevant contributions plan as required by s 94B. It is common ground that there is no such plan.

67 Section 94 is the exclusive power for conditions of the character specifically identified in s 94, that is, dedication of land or monetary contributions. Section 94 does not extend to conditions which may, in some way, be the commercial equivalent of a dedication of land or the payment of a contribution; for example, a condition requiring the carrying out of work at the developer’s expense, which is expressly permitted by s 80A(1)(f): Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 per Spigelman CJ at [22] – [23], per Santow JA at [46], and per Cripps AJA at [77] and [80]. There the Court of Appeal at [20] disapproved the reasoning in St George Building Society v Manly Municipal Council (1982) 3 APA 370 (approved by Stein J in Fitch v Shoalhaven City Council (1987) 67 LGRA 165) insofar as that reasoning extended the exclusive power in s 94 beyond conditions which, in terms, required dedication of land free of cost or the payment of a monetary contribution.

68 The council submitted that the condition does not require a “dedication” nor is the right of way “land” within the meaning of s 94. Assuming that the right of carriageway is “land” within s 94(1), in my opinion the condition does not require “dedication” of land to the public. In its terms the condition grants a right of way to other Strand Properties. The applicant’s argument is based on the expressed reason for the condition which is “to ensure public access over the laneway”. The reason is not the condition. It is an acknowledgment of what in reality will occur. But that does not convert the condition into a requirement for dedication of land. Therefore the applicant’s argument based on s 94 must fail. It is unnecessary to consider whether there is any further reason why it might fail.

69 The separate question to which this judgment has been directed and my answer is as follows:

Question: Whether Condition 89 “ Right of Carriageway over Rear Lane Way ” is a valid condition to impose as part of the Conditions of Development Consent in respect Development Consent Numbered 2003/1281 determined on 26th September 2006 in respect of the property known as 9 The Strand Dee Why.

Answer: No.

70 The parties are to bring in agreed or competing short minutes of orders to finalise these proceedings by 18 February 2008. The matter will be listed before me at 9.30 am on 19 February 2008 to make final orders. The respondent is to pay the applicant’s costs of the separate question. The exhibits may be returned.

24/07/2008 - inserted "J" after Heydon - Paragraph(s) 42