Fivex Pty Ltd v Woollahra Municipal Council

[2007] NSWLEC 275

Land and Environment Court

of New South Wales

CITATION:

Fivex Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 275

PARTIES:

APPLICANT
Fivex Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11281 of 2006

CORAM:

Hussey C

KEY ISSUES:

Section 96 Application :- Reduction in s 94 carparking contribution

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

17/05/2007 and 18/05/2007

EX TEMPORE JUDGMENT DATE:

18 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
for Hunt and Hunt

RESPONDENT
Mr P. Larkin, barrister
with Mr M. Connell
for Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 May 2007

11281 of 2006 Fivex Pty Ltd v Woollahra Municipal Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 This appeal was lodged against councils determination of a s 96 Modification application in respect of Condition 57 originally imposed on a development consent for demolition works and construction of a new 4-storey retail/commercial development at 376-382 New South Head Road, Double Bay. Condition 57 required a s 94 contribution of $1,231,872 towards public car parking because the development does not include on-site parking.

2 In the s 96 application, the applicant sought the reduction of this car parking contribution to $420,000. However on review of this application, council subsequently increased the contribution to $1,270,368.

3 The full details of the site, proposal and relevant controls are contained in the Statement of Basic Facts, on which I rely. In summary the controls include:

• Woollahra LEP 1995,
• Woollahra Section 94 Contribution Plan 2002,
• Woollahra DCP 2002,
• DCP for Off Street Car Parking Provision and Servicing Facilities.

4 For the appeal number of issues were identified which include:

• the appropriate method of calculation of car spaces according to the s94 CP,
• relative public benefit offsets covered by a proposed car sharing arrangement via a Planning Agreement,
• whether the s94 contribution is reasonable.

5 The parties agreed to the appointment of a number of Court Appointed experts to address these issues and following receipt of their assessments, undertook further conferencing. This has resulted in the parties agreement to Consent Orders with the effect of reducing the car parking contribution to $693,000.

6 In so far as there has been no detailed assessment of the issues or evidence in this matter by the Court, I accept there is some discretion for the Court to vary s 94 contributions within the context of the contribution plan, which allows offsets in some circumstances. Accordingly, in the absence of any submissions to the contrary or objections, I accept the parties review of all the evidence, including that of the Court appointed experts, results in the reduced car parking contribution of $693,000 being an acceptable commercial agreement between the parties and reasonable in the circumstances of this case.

7 By consent the Court orders,

1. The appeal is upheld.
2. Condition 57 of Development Consent DA 0207/2005 is modified by deleting the amount of " $1,270,368" where that figure appears in the condition before the words "towards the provision of public car parking in the Double Bay Commercial Centre" and inserting in lieu thereof the amount of "$693,000".

Note: The Court notes that each party is to pay its own cost

___________________

R Hussey
Commissioner of the Court
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