Easeport Pty Ltd v Leichhardt Municipal Council

[2001] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION:	Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2
PARTIES:	APPLICANT Easeport Pty Ltd RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	40102 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Judicial Review :- s 94 contributions plan - privative clause - validity
LEGISLATION CITED:	Development Control Plan No 6 - Interim Parking Policy Environmental Planning and Assessment Act 1979 s 94 Environmental Planning and Assessment Regulation 1994 Leichhardt Developer Contribution Plan - Transport and Access
CASES CITED:	Darling Casino Ltd v New South Wales Casino Control Authority and Ors (1997) 191 CLR 602; R v Coldham and Ors; Ex parte The Australian Workers’ Union (1983) 153 CLR 415; R v Hickman; Ex parte Fox (1945) 70 CLR 598
DATES OF HEARING:	02/11/2000
DATE OF JUDGMENT:	01/22/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr G B Newport (Barrister) SOLICITORS George Khoury & Co RESPONDENT Mr C W McEwen (Barrister) SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND 40102 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 22 January 2001

EASEPORT PTY LTD

Applicant

v

LEICHHARDT MUNICIPAL COUNCIL

Respondent

JUDGMENT

Introduction

1. These class 4 proceedings concern the validity of a s 94 contributions plan.

2. The applicant, Easeport Pty Ltd, seeks the following declarations:

1. A declaration that the component of the respondent’s “Leichhardt Developer Contribution Plan - Transport and Access” titled “Commercial Development Parking” for the Leichhardt business centre is invalid;

2. A declaration that condition 4(b) of the respondent’s Notice of Determination of DA990453 dated 30 November, 1999 in respect to a proposed restaurant with alterations and additions at 22 Norton Street, Leichhardt, is invalid.

3. By its amended points of defence, the council has denied the claims of the applicant but has, in further answer, raised three issues. The first is whether the claim of invalidity and the relief sought by the applicant is barred by the operation of s 94C(2) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The second is whether, if condition 4(b) of the development consent is found to be invalid, it is severable from the development consent, or whether that invalidity brings down the whole of the development consent. The third is whether the Court should, in the exercise of its discretion, refrain from granting the relief sought by the applicant.

4. Upon the Court granting leave to the council to amend its points of defence, which raised those three issues for the first time, the applicant applied to have the issues of severability and discretion deferred for later determination and to have the issues of invalidity and barring of its claim dealt with as preliminary matters. There was no objection to this course from the council, and, in the interests of efficient use of the Court’s time, this course was adopted.

The factual background

5. On 30 November 1999, the council granted to the applicant development consent subject to conditions in respect of “[c]hange of use to café/restaurant and alterations and additions” in relation to the building situated at 22 Norton Street, Leichhardt (“the site”).

6. The site is located opposite the Italian Forum. It comprises a terrace building on land of 232.60 m2 and it is currently used for commercial offices. The development the subject of the development consent involves alterations and additions to the existing building to convert it to a café/restaurant.

7. Included amongst the conditions of consent was the following condition:

4. Prior [to] issuing a Construction Certificate for works in connection with this development consent the following monetary contributions shall be paid to Leichhardt Council:


(a) $12,467.80 for the cost of providing transport and access works and facilities; and

(b) $150,000.00 for the cost of providing car parking facilities.

The contributions have been imposed pursuant to s 94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Developer Contributions Plan - Transport and Access, after identifying that the development will increase the demand for transport and access works and parking facilities within the area. The transport and access contribution has been calculated on the basis of an intensification of the use of the premises. The car parking contribution has been calculated on the basis of the generation of parking demand of 15 spaces.

…

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

8. The Leichhardt Developer Contributions Plan - Transport and Access (“the Plan”) came into operation on 3 November 1999. It was expressed to apply to the whole of the Leichhardt local government area, and to cover specified wards, including Leichhardt/Lilyfield, in which the site is located.

9. The Plan is expressed to include six “works for the Transport and Access in each suburb”, one of which is “Commercial Car Parking”. Under the heading “Commercial Development - Parking”, the Plan relevantly provides as follows:

The requirements of a contribution for car parking only applies in the business centres of … Leichhardt, as shown on Figure 3. These are the areas where works have been identified to provide additional car parking. The contribution does not apply in other areas, where adequate provision for all parking associated with a development is expected.

The contribution applies to the following forms of development:

· Increases in the floor area of existing commercial developments;

· Changes in use of buildings and land which result in an intensification of use,

· New developments where for reasons of site constraints or development types, it is not appropriate to provide all parking on the site,

· The demand for long term occupant parking will normally be satisfied by the provisions of on-site parking as a condition under Section 80A of the Environmental Planning & Assessment Act , 1979.

In addition there are situations where on-site parking cannot be provided, or there are constraints on such provision. There can also be situations where the on-site parking that might be provided for customers would not be easily accessed. In this situation the development should be provided with the minimum parking requirement in the Parking Policy, with the difference between the minimum and the maximum requirement to be made up by a monetary contribution.

The contribution rates are (Appendix F):

…

Leichhardt $10,000 per space

The contribution rates reflect the cost of construction and infrastructure as the land for parking area is provided by the Council.

Options for provision of public car parking areas are as follows, including provision of on street parking (where possible) in vicinity of these locations:

…

Leichhardt

· Leichhardt Town Hall

10. A number of matters must be said about this provision. First, the reference to “Figure 3” is wrong - it should be “Figure 2”- but the parties are agreed that the site is in Leichhardt and this provision of the Plan applies to it. Second, it is agreed between the parties that since the site has a width of only 7 m, the demand for parking generated by the proposed development cannot be satisfied by on-site parking. Third, as can be seen, there is a reference to “Appendix F”. That is a section of the Plan which purports to relate to the scope of car parking works and is headed “Options for Provision of Public Car Parking Areas”. So far as concerns the site, it contains the following provision:

3. LEICHHARDT

3.1 Leichhardt Town Hall

Additional public parking on Council land at Leichhardt Town Hall would be well placed to serve a number of functions, namely:

· Additional visitor parking for Council activities, including both office use during the day and Council meetings. There is at present a reasonably heavy usage of Wetherill Street and Marion Street for this purpose

· Provide additional parking for large functions at the Leichhardt Town Hall

· Public parking to service activities in that part of Norton Street from Macauley Street south to the new cinema site at 99 Norton Street.

The Council owned property at 13 Marion Street, if demolished, could provide parking for 25 cars. The two properties at 9 and 11 Marion Street could be similarly redeveloped. In the event that Council extended its administration offices over this land, the opportunity should be taken to provide additional parking which could serve a number of users.

With the uncertainty of precise options, it is difficult to accurately cost the parking. In the circumstances, the average costs estimated for the Rozelle options are recommended for application in Leichhardt Town Centre, this being $10,000 per space.

The statutory background

11. Section 94(1) of the EP&A Act permits the imposition of a condition requiring the payment of a monetary contribution if the consent authority is satisfied that a development “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”. However, s 94(11) provides that a council may impose such a condition “only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under s 94B”.

12. Section 94B provides as follows:

94B(1) A council may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions referred to in this Division.

(2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.

13. The regulations referred to are the Environmental Planning and Assessment Regulation 1994 (“the Regulation”). Part 4 of the Regulation is headed “Contributions Plans” and it is divided into six divisions, which relevantly provide as follows:

Division (1): is headed “Preparation of contributions plans”. Clause 25(1) provides that a “contributions plan must be in the form of a written statement, and may include supporting maps, plans, diagrams, illustrations and other materials” .
Clause 26 deals with the particulars which a contributions plan must contain. Seven such particulars are prescribed, but only two are of relevance in these proceedings. They are:

(d) the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services;

(g) a works schedule of the specific public amenities and services proposed to be provided by the council, together with an estimate of their cost and staging.

Division (2): is headed “Public participation”. It provides that draft contributions plans must be publicly exhibited (cl 27) and must be publicly available (cl 28). Any person is entitled to make written submissions about the draft contributions plan (cl 29).

Division (3): is headed “Approval of contributions plans”. Clause 30(1) provides that the council may, after considering any submissions, approve the plan in the form in which it was publicly exhibited, or may approve it with alterations, or may decide not to proceed with the plan. Clause 30(2) provides that the council must give public notice in a local newspaper after its decision is made. Clause 30(4) provides that a contributions plan relevantly comes into effect on the date that public notice of its approval is given in a local newspaper.

Division (4) deals with amendment and repeal of contributions plans; division (5) deals with accounting; and division (6) deals with public access to the contributions plan and other relevant documents.

The applicant’s claim

14. The applicant claims that the Plan is invalid because it fails to comply with the requirements of the Regulation in two respects:

(1) it fails to comply with cl 26(1)(g) in that it does not provide sufficient and adequate particulars of “specific public amenities” and “an estimate of their cost”; and

(2) it fails to comply with cl 26(1)(d) in that it does not provide particulars of “the formulas to be used for determining the section 94 contributions”.

15. The applicant put its first claim in the following way. The Plan identifies “Commercial Car Parking” as a work to which the contributions contemplated by the Plan relate. In respect of that work, the Plan specifies, so far as concerns Leichhardt, a rate of $10,000 per space, and it does so by reference to Appendix F. However, in the applicant’s submission, no specific car parking amenity is identified in section 3.1 of Appendix F. Leichhardt Town Hall is suggested as a possible location for public car parking to serve a number of functions, but none of those functions apply in this case. In particular, it is conceded by the council that the site is not included in that part of Norton Street from Macauley Street south to the new cinema at 99 Norton Street. Three other sites are identified in section 3.1, namely, 13 Marion Street, and 9 and 11 Marion Street, but only as potential and not prospective sites for redevelopment for car parking.

16. A critical plank in this part of the applicant’s case is the last sentence of section 3.1, which, I repeat, is as follows:

With the uncertainty of precise options, it is difficult to accurately cost the parking. In the circumstances, the average costs estimated for the Rozelle options are recommended for application in Leichhardt Town Centre, this being $10,000 per space.

17. The applicant’s case is that not only is no specific car parking amenity identified in Appendix F, no estimate of cost is provided. The reference to $10,000 per space cannot be an estimate of the cost of specific car parking amenities because none are identified. Even if the references to Leichhardt Town Hall and Marion Street were to be taken as specific car parking amenities (which the applicant asserts cannot be so) then the reference to $10,000 per space is not a cost estimate in relation to them, but is a rough quantum derived by reference to car parking spaces in another area.

18. As to the applicant’s second claim, it contends that the Plan nowhere provides particulars as to the formulas to be used for determining the s 94 contributions required for car parking as a public amenity. A contribution rate of $10,000 per space is set for Leichhardt, but that is not a formula for determining the contribution. The Plan recognises that “there are situations where on-site parking cannot be provided” but it then refers to “the Parking Policy”, and specifies that “the difference between the minimum and the maximum requirement to be made up by a monetary contribution”. That also is not seen by the applicant to be a formula for determining the contribution.

Is the claim barred by the EP&A Act?

19. Section 94C(2) of the EP&A Act provides as follows:

94C(2) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date on which the plan came into effect.

20. It is common ground that the Plan came into effect on 3 November 1999, and that the applicant’s class 4 application was filed on 11 July 2000. The period between those dates is of course longer than three months, and the question thus arises as to whether s 94C(2) operates as a bar to the applicant’s claim.

21. It is important to observe that s 94C(2) precludes legal proceedings which challenge the validity of “any procedure required to be followed in making or approving a contributions plan”. The section does not preclude a challenge to the validity of a contributions plan itself. In this respect, it is useful to contrast s 35 of the EP&A Act, which provides that the validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced within three months of publication, and, similarly, s 101 of the EP&A Act which provides that the validity of a development consent or a complying development certificate cannot be questioned in any legal proceedings except those commenced before the expiration of three months from the date of public notice. Those sections deprive the Court of jurisdiction in relation to a challenge to the validity of the particular instruments themselves. It is clear, however, that in the case of s 94C(2), the legislature intended that the jurisdictional ouster is limited to a challenge as to the validity of the procedure required to be followed. And it is not simply any procedure, but it is a procedure of a particular type, that is, the procedure required to be followed in the making or approval of the contributions plan.

22. The applicant claims, as I have earlier outlined, that cl 26(1)(d) and cl 26(1)(g) of the Regulation have not been complied with, on the basis that the Plan does not contain a formula for determining the relevant contributions nor does it contain particulars of specific public amenities and an estimate of their cost. Mr Newport, appearing for the applicant, submitted that this claim is a challenge to the validity of the Plan based upon its content, rather than a challenge to the validity of the procedure required to be followed in making or approving it. The contrary proposition, put by Mr McEwen on behalf of the council, is that the requirement imposed by cl 26(1) that a contributions plan contain certain particulars is a procedural requirement, and the applicant’s claim that the particulars are insufficient is a challenge to procedure and therefore barred.

23. The issue must be determined in the statutory context which I have already described. Section 94(1) permits a consent authority to impose a condition of consent requiring the payment of a monetary contribution, but, pursuant to s 94(11), such a condition may only be imposed if it is of a kind allowed by a contributions plan approved under s 94B. Section 94B is worth repeating here for convenience. It is headed “Contributions plans - making” and sub-section (1) provides as follows:

94B(1) A council may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions referred to in this Division. (my emphasis)

24. It seems to me, taking into account both the heading of s 94B, and the actual words of s 94B(1), that the word “prepare” was intended by the draftsperson to be synonymous with the word “make”. A similar use of those words is to be found in Division 1 of the Regulation. Division 1 is headed “Preparation of contributions plans”, but cl 25(2) refers to contributions plans being “made”. The critical point, however, is that, in accordance with s 94B(1), the requirements to be followed in the making and approving of a contributions plan are to be found in the Regulation.

25. Close examination of the relevant clauses of the Regulation reveal a number of prescribed matters in relation to contributions plans. First, the form of a contribution plan is prescribed by cl 25(1); that is, it must be a written statement, but it may include maps, plans and other materials. Second, its content is prescribed by cl 26(1); that is, it must include the particulars there specified. Third, a number of steps or actions are to be taken by the council are prescribed. The council must take into consideration the conditions that may be imposed under s 97(1)(b) of the Local Government Act 1993 (cl 26(2)); it must give public notice of and publicly exhibit a draft contributions plan (cl 27(a) and 27(b)); it must specify the period for submissions (cl 27(c)); it must provide copies of the draft contributions plan (cl 28) and it must take into account any submissions (cl 30(1)). After taking those steps, a council may approve the contributions plan in the form in which it was publicly exhibited, or may approve it with such alterations as it thinks fit, or it may decide not to proceed with the contributions plan (cl 30(1)), and it must give public notice of its decision (cl 30(2)).

26. In my opinion, by these provisions, the Regulation makes a distinction between form, content and procedure. In this context, I take the word “procedure” to mean, in accordance with the Macquarie Dictionary, “the act or manner of proceeding in any action or process …” and in this connection “process” bears its dictionary meaning of “a systematic series of actions directed to some end”. I conclude that all the actions or steps which I have outlined are matters of procedure or process, and that the form or content of a contributions plan are not matters of procedure or process. It follows, therefore, that s 94C(2) operates to preclude any challenge to the validity of any of those actions and steps. But, as I have indicated, s 94C(2) is limited in its operation, and it does not preclude a challenge to the form or content of a contributions plan.

27. It follows from that conclusion that the present challenge is not barred by the operation of s 94C(2) because it is a challenge to the validity of the content of the Plan, not to any procedure required to be followed in making or approving it.

28. I am fortified in the conclusion I have reached by the actual words of s 94C(2). If the clauses of the Regulation prescribing the form or content of a contributions plan were to be regarded as a “procedure required to be followed in making or approving a contributions plan” then s 94C(2) would operate to preclude a challenge to the contributions plan per se, because form, content and procedure seems to cover the field. In other words, it is hard to imagine a challenge to the validity of a contributions plan that could be based on matters other than form, content or procedure, (except, perhaps, a challenge based on a denial of natural justice). But s 94C(2) is, by contrast with s 35 and s 101, limited in its operation. It does not purport to preclude a challenge to the validity of a contributions plan per se.

29. It is not necessary, in view of the conclusion I have reached, to consider the application of the Hickman principle. That expression refers to the proposition enunciated by Dixon J in R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 615 to the effect that a privative or preclusive clause is effective to oust the jurisdiction of the court provided that the impugned decision does not on its face exceed the authority conferred by the legislation, is a bona fide attempt to exercise the powers conferred and relates to the subject matter of the legislation (see Darling Casino Ltd v New South Wales Casino Control Authority and Ors (1997) 191 CLR 602 at 630). The Hickman principle is a rule of construction which applies if there is a prima facie inconsistency between one statutory provision which seems to limit the powers of the decision-maker, and another, the privative clause, which seems to contemplate that the decision shall operate free from any restriction (R v Coldham and Ors; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 at 418). But the first question which arises is whether the statutory provisions, properly construed, give rise to an inconsistency which must be resolved by application of the Hickman principle (Darling Casino v NSW Casino Control Authority at p 631). In this case, no such inconsistency arises because the privative clause in question, s 94C(2), does not operate in respect to the decision which is challenged - it operates only in relation to the specified matters of procedure.

The cl 26(1)(g) claim

30. In light of the conclusion I have reached, I turn to consider whether that component of the Plan entitled “Commercial Development-Parking” is invalid insofar as it relates to Leichhardt business centre upon the ground that the Plan does not include sufficient or adequate particulars to satisfy cl 26(1)(d) and cl 26(1)(g) of the Regulation. I deal first with cl 26(1)(g).

31. It is useful to repeat the relevant parts of it which are as follows:

26(1) A contributions plan must include particulars of the following:

(g) a works schedule of the specific public amenities and services proposed to be provided by the council, together with an estimate of their cost and staging.

[The applicant makes no claim with respect to “staging” .]

32. In my opinion, the proper construction of cl 26(1)(g) is based upon the following propositions:

(a) The requirement to provide “particulars of … a works schedule …” is an ungrammatical expression. However, read as a whole, what cl 26(1) requires is the provision of particulars about a number of specified matters, and, in the case of sub-cl (g), those matters are, relevantly, the specific public amenities proposed to be provided, the works which they involve and an estimate of their cost.

(b) Those particulars must appear in a contributions plan; but it is not essential that they appear in a “works schedule” so long as they appear in the contributions plan read as a whole. That is because the requirement for a “schedule” is a matter of form, not substance. The form of a contributions plan is prescribed by cl 25 of the Regulation, as I have earlier indicated, and no mention of a “works schedule” is made in that clause.

(c) The adjective “specific” describes the noun “amenities”, and, accordingly, the word “specific” requires that particulars be furnished of the actual type, kind or category of public amenities contemplated by the contributions plan rather than public amenities generally. Those particulars would be satisfactorily furnished, in my opinion, by denoting them according to type, kind or category of amenities, such as, for example, transport and access, or open space facilities, or recreation facilities or the like. To some extent, that construction is supported by cl 26(1)(d) (quoted in par 13) which refers to “different categories” of public amenities and services.

(d) Nevertheless, the reference to “works schedule” indicates that the contributions plan should contain particulars of works which are proposed to be provided by the council to constitute the specific public amenities. In the case of transport and access, for example, the requirement for particulars of “works” might be satisfied by referring, as the Plan does, to light rail access works, bicycle facilities, and commercial car parking.

(e) However, the necessity to provide particulars of the works which are proposed to be provided by the council does not require the precise locations of those works to be set out in a contributions plan. In some cases, it may be possible to be precise; but in other cases, the precise locations of works may be dependent upon an estimate of future demand for the specific public amenity in question. The use of the term “proposed” indicates a degree of flexibility, which is appropriate from a planning point of view. The word “proposed” suggests that the specific public amenities are foreshadowed rather than fixed or binding. Such a construction accords with the wording of s 94(1), which permits the imposition of a condition requiring the payment of a monetary contribution where the proposed development “will or is likely to require the provision of or increase the demand for public amenities and public services”. (my emphasis)

33. I turn then to consider whether the particulars required by cl 26(1)(g) have been furnished in the Plan. First, “specific public amenities”. The Plan as a whole refers to one specific public amenity, namely, transport and access. That is apparent from the introduction to the Plan set out on p 3, which shows that the Plan is named by reference to transport and access and that it is intended to provide for transport and access for a period of ten years.

34. Second, “works”. Six different works which constitute the specific public amenity are identified on p 3, and commercial car parking is one of them. On p 16, the “areas where works have been identified to provide additional car parking” have been specified by reference to figure 3 (correctly, figure 2). So far as Leichhardt is concerned, figure 2 delineates an area of which Norton Street is the axis. More detail about the commercial car parking component of “works” is set out in appendix F, where, as I have earlier indicated, reference is made to public car parking at Leichhardt Town Hall and at three properties in Marion Street, although only the latter properties have any nexus to the development which is the subject of the development consent in this case. Furthermore, the Plan states that the Marion Street properties “could” be developed to provide additional parking, and that indicates a potentiality rather than an actuality. However, as I have said, what is required is reference to the specific public amenity “proposed” to be provided by the council, and in my opinion the potential availability of the Marion Street properties is sufficient to suggest what is “proposed” by way of works which will constitute the provision of transport and access in the Leichhardt area so far as concerns the development the subject of the development consent.

35. Third, “an estimate of their cost”. A figure of $10,000 per space is identified as the estimate of the cost of providing commercial car parking in the Leichhardt Town Centre. That figure is derived from the calculation provided in the Plan for the estimate of cost of providing commercial car parking in Rozelle. The Plan states that “[w]ith the uncertainty of precise options, it is difficult to accurately cost the parking”, and it must be deduced, therefore, that the figure of $10,000 per space is not an “accurate” cost. Mr Newport submitted that the estimate was no more than a “rough quantum”. I take that to be a submission that the Plan provides no reasonable particulars of an estimate of cost because the figure provided bears no relationship to the properties in Marion Street, and is not based on detailed calculations in relation to those properties. I reject this submission. A precise costing is not required by cl 26(1)(g). What is required is an estimate, and it is reasonable, in my opinion, for the Plan to provide that estimate by reference to a more detailed costing of the provision of public car parking elsewhere in the Leichhardt local government area. In other words, read broadly and not literally, the Plan states that it will cost on average an amount of $10,000 per space to provide public car parking in Rozelle, and that same estimate is appropriate for the provision of public car parking in the Leichhardt Town Centre.

36. For all these reasons, I conclude that sufficient and adequate particulars as required by cl 26(1)(g) have been provided in the Plan, and the applicant’s claim of invalidity on this ground must fail.

The cl 26(1)(d) claim

37. Once again, it is convenient to reiterate the terms of cl 26(1)(d) as follows:

26(1) A contributions plan must include particulars of the following:

(d) the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services;

38. Sub-section (d) suffers from the same grammatical defect as sub-s (g), in that what is stated as being required are “particulars of … the formulas”. In the same manner as applies in regard to sub-s (g), the essential information which is required is a formula for determining the s 94 contribution for the public amenity of transport and access (dealt with in the Plan).

39. Once again, the Plan addresses this requirement by reference to particular works constituting transport and access. In relation to commercial car parking, this requirement is dealt with on p 16 of the Plan. I repeat the relevant passage as follows:

… there are situations where on-site parking cannot be provided … In this situation, the development should be provided with the minimum parking requirement in the Parking Policy, with the difference between the minimum and the maximum requirement to be made up by a monetary contribution.

The contribution rates are …

…

Leichhardt $10,000 per space.

40. The wording of this passage is obscure. The “Parking Policy” to which it refers is apparently Development Control Plan No.6 - Interim Parking Policy (“the parking DCP”) which is dated February 1988. But it is not clear from the parking DCP how a calculation of parking requirement is to be made. Clause 11.5 of the parking DCP is a schedule of “car parking standards” to be applied, and, in the case of restaurants, that standard is 10 spaces per 100 m2 of gross floor area. But that standard is variable according to discretionary considerations. Thus cl 11.1 provides, in effect, an allowance for the parking generated by the existing use of the building. Moreover, cl 11.5 provides that, in the case of restaurants, the council will have regard to the location of the proposed restaurant, its proximity to residential neighbourhoods, the availability of on-street and public spaces within the immediate vicinity, and its proposed hours of operation. At least so far as concerns restaurants, there is no reference to minimum or maximum requirements.

41. However, these uncertainties in the application of the parking DCP are not really material in this case, because, in imposing the condition of consent requiring a monetary contribution of $150,000, the council stated that it had determined that the development would generate a demand for 15 car parking spaces, and the applicant does not expressly challenge this calculation. What is more to the point is the meaning of the passage I have quoted from the Plan in relation to the contribution rate of $10,000 per space. Mr McEwen submitted that it must be read as providing that, if a site did not allow for on-site parking at all (thus not allowing a minimum or maximum), then a monetary contribution should be required based on a rate of $10,000 in respect of each car parking space determined as being required under the parking DCP. There may be particular developments for which a minimum number of car parking spaces is provided on site and for which a maximum number is prescribed by the parking DCP, but maximum and minimum numbers are not prescribed in relation to restaurants.

42. I accept Mr McEwen’s submission. It seems to me to give a sensible meaning to the passage I have quoted, and there is no doubt, having regard to the wording of condition 4, that the council approached the imposition of the condition in this way. It follows, in my opinion, that the Plan does provide a formula for determining the s 94 contribution required for the specific public amenity, that is, transport and access provided by commercial car parking. The formula is the simple one of multiplying the number of car spaces generated by the proposed development (or, in a particular case, the number representing the difference between the minimum number of spaces provided on site and the maximum number of spaces required by the parking DCP) by a figure of $10,000; in other words, x x y.

43. In my opinion, therefore, the particulars required by cl 26(1)(d) have been included in the Plan, and the applicant’s challenge on this ground must fail.

Orders

44. In view of the conclusions I have reached, the issues of severability and discretion do not arise. The applicant has failed to establish that the particular component of the Plan is invalid, and accordingly, its application must be dismissed. I cannot refrain from observing that the claim stated on p 3 of the Plan, namely, that it “will withstand the rigors of the Land and Environment Court” has been borne out at least in the circumstances of this case!

45. My formal orders are as follows:

(1) The application is dismissed.

(2) The applicant must pay the costs of the council as agreed or as assessed.

(3) The exhibits may be returned.