Donnellan v Ku-ring-gai Council

[2008] NSWLEC 1462

Land and Environment Court

of New South Wales

CITATION:

Donnellan v Ku-ring-gai Council [2008] NSWLEC 1462
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Steve Donnellan

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10955 of 2008

CORAM:

Hussey C

KEY ISSUES:

Section 96 Application :- Modify the s 94 contributions imposed on a development consent for a residential flat building

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Meriton Apartments Pty Limited v Ku-ring-gai Council (2006) NSW LEC 776

DATES OF HEARING:

19/11/2008

EX TEMPORE JUDGMENT DATE:

19 November 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms R. Dawes, solicitor
of Lindsay Taylor Lawyers

RESPONDENT
Mr P. Marincowitz, solicitor
DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 November 2008

10955 of 2008 Steve Donnellan v Ku-ring-gai Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This appeal was lodged against council’s refusal to s 96 application to modify the s 94 contributions imposed on a development consent for a 32 unit residential flat building development at 26-30 Marion Street, Killara.

2 The details of the various components of the s 94 contributions are contained in the Statement of Facts and Contentions and I rely to these. During the appeal there has been conferencing between the parties, resulting in an agreement to the revised s 94 contributions and consequently that has lead to the parties also agreeing to consent orders.

3 The sole issue in this matter was the quantum of the s 94 contributions based on council’s s 94 contributions plan. However, in another matter, which was Meriton Apartments Pty Limited v Ku-ring-gai Council (2006) NSW LEC 776, the s 94 contribution plan was challenged. His Honour Justice Talbot reviewed some of the components in that plan and the amount of contributions was reduced.

4 I understand that the subject contributions have been reviewed in light of that judgment by an independent planner and the adjustments are now reflected in the agreed consent orders. The adjustments refer to the occupancy rates, the amount for community facilities, the arts centre and traffic studies and as I noted these comply with the findings in Justice Talbot’s judgment.

5 In these circumstances, there are no further questions that this court has to answer. Therefore I consider that it reasonable to make the consent orders.

6 The Court orders by consent :

1. The appeal is upheld.
2. Development consent No. 0820/07 be modified by the deletion of condition 37 and in lieu thereof the substitution of the following condition:
a ’37. Section 94 contribution - residential development.
A contribution pursuant to Section 94 of the Environmental Planning and Assessment Act as specified in Ku-ring-gai Section 94 Contributions Plan 2004-2009 for the services, per person , detailed in column A and for the amount detailed in Column B is required.

Column A Column B
Community facilities $376.95
Park acquisition and embellishment works $6,384.75
Sportsgrounds works $1,318.32
Aquatic/leisure centres $27.82
Traffic and transport $63.51
Section 94 plan administration $100.04
Total contribution per person $8,271.39
Net increase in population 65.24 persons
Total contribution $539,625.80

The contribution shall be paid to Council prior to the commencement of any development (including demolition) or prior to the issue of the Construction Certificate (whichever comes first). The charges may vary at the time of payment in accordance with Council’s Section 94 Contribution Plan to reflect changes in land values, construction costs and the consumer price index. Prior to payment you are advised to check the contribution amount required with Council.

___________________

R Hussey
Commissioner of the Court
ljr

08/01/2009 - 23-30 Marian Street changed to 26-30 Marian Street - Paragraph(s) 1