Greater Union Organisation Pty Limited v Woollahra Municipal Council
[2012] NSWLEC 1268
•21 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Greater Union Organisation Pty Limited v Woollahra Municipal Council [2012] NSWLEC 1268 Hearing dates: 18, 19 September 2012 Decision date: 21 September 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. Condition C.3 is modified to provide for a contribution of $54,091 under s 94A of the EPA Act.
3. The exhibits are returned with the exception of exhibit E.
Catchwords: MODIFICATION: s 94 contribution for car parking Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Greater Union Organisation Pty Limited (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel
Mr T Hale SC, Ms Z Steggal, barrister (Applicant)
Mr S Flanigan, barrister (Respondent)
Solicitors
Minter Ellison (Applicant)
Norton Rose Australia (Respondent)
File Number(s): 10537 of 2012
Judgment
This appeal relates to the refusal of an application to modify condition C.3 of the development consent (DA/96/2011) granted by Woollahra Municipal Council (the council) on 12 February 2012 for the demolition of an existing unused cinema and the construction of mixed retail/commercial development at 377-383 New South Head Road, Double Bay (the site).
The relevant part of condition C.3 is shown below with the particular contributions in dispute shown bold:
C.3 Payment of Security, Levies and Fees (S80A(6) & S94 of the Act, Section 608 of the Local Government Act 1993)
The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees prior to the issue of a construction certificate, subdivision certificate or occupation certificate, as will apply.
Description
Amount
Indexed
Council Fee Code
LONG SERVICE LEVY
under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy
information/?le w information/lew calculator.stm
Contact LSL
Corporation or use
their online calculator
No
SECURITY
under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit - making good any damage caused to Council property.
$94,280
No
T115
CONTRIBUTIONS
under Woollahra Section 94 Contributions Plan 2002 (June 2008 update) This plan mav inspected at Woollahra Council or downloaded at .
Double Bay retail civic improvements contribution
$5,954 + Index Amount
Yes, yearly
T94
Double Bay commercial civic improvements contribution
$46,575 + Index Amount
Yes, yearly
T94
Double Bay commercial centre public car parking contribution
$1,393,575 + Index Amount
Yes, yearly
T94
Administration charge
$21,691.56 + Index Amount
Yes, yearly
T94
INSPECTION FEES
under Section 608 of the Local Government Act 1993
Public Road and Footpath Infrastructure Inspection Fee
$420
No
T45
Security Administration Fee
$180
No
T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES
$1,562,675.56 plus any relevant indexed amounts and long service levy
The applicant seeks the deletion of the s 94 contributions and their replacement with a single contribution of $54,091 (plus indexing) pursuant to s 94A of the Environmental Planning and Assessment Act1979 (the EPA Act)
Mr Flanigan, for the council, submits that the modification sought by the applicant is unavailable as the Court has no power to impose a condition pursuant to s 94A.
The relevant planning documents
Double Bay Centre Development Control Plan 2002 (the Double Bay DCP) came into effect on 6 December 2002 and includes the site. Clause 1.8 provides that "in the event of any inconsistency between this DCP and any other development control plans, codes and policies of the council, this DCP will prevail unless otherwise specified in this DCP or in other plans, codes all policies. The provisions of clauses 4.4, 4.5 and 4.6 of the Woollahra Parking DCP prevail over the provisions of this DCP".
Relevantly, cl 4.5 states:
4.5 Premises within the Double Bay Commercial Centre
Council will not require additional off-street car parking for development proposals involving a change of use on land zoned business in the Double Bay Commercial Centre, unless the proposal will also result in a net increase in gross floor area.
Council will not require a contribution under the Section 94 Contributions Plan for development proposals involving a change of use on land in the Double Bay Commercial Centre to which that plan applies, unless the proposal will also result in a net increase in gross floor area.
This clause does not affect the operation of clause 4.4
Clause 6.7.2 provides requirements for on-site parking that relevantly require 3.5 spaces per 100 sq m of gross floor area (GFA) for retail use and 2.0 spaces per 100 sq m of GFA for commercial use. This equates to 16 spaces for the proposed 458 sq m of retail development and 35 spaces for the proposed 1527 sq m of commercial development. (Exhibit A1, p7)
Woollahra Municipal Council Development Control Plan For Off-Street Parking Provision and Servicing Facilities (the1995 Parking DCP) came into effect on 19 July 1995 applies to the site. Table 2.2 provides requirements for on-site parking that relevantly requires 3.3 spaces per 100 sq m of GFA for retail uses, Table 2.4 requires 2.5 spaces per 100 sq m of GFA for commercial uses and Table 2.6 requires 22.0 spaces per 100 sq m of GFA for "Motion picture theatres and live theatres". This equates to 17 spaces for the proposed 520 sq m of retail development, 38 spaces for the proposed commercial development and 253 spaces for the existing 1150 sq m of cinema (Exhibit A1, p5). The measurement of GFA for the 2011 Parking DCP differs to that in the Double Bay DCP.
Woollahra Municipal Council Parking Development Control Plan (the 2011 Parking DCP) came into effect on 23 March 2011. Table 2.1 provides requirements for on-site parking that relevantly requires 3.3 spaces per 100 sq m of GFA for retail uses. 2.5 spaces per 100 sq m of GFA for commercial uses and 22.0 spaces per 100 sq m of GFA for "Entertainment facility". The parking numbers remain unchanged from the1995 Parking DCP.
Clause 1.5.4 of the 2011 Parking DCP repeals the 1995 Parking DCP however cl 1.6 contains savings and transitional provisions that provide that the 1995 Parking DCP continues to apply to applications to modify development consents made prior to but not determined at the date of commencement of the 2011 Parking DCP. As the 2011 Parking DCP came into effect on 23 March 2011 and the proposed application was made on 12 March 2012 and was determined on 14 May 2012, the modification application is not captured by the savings and transitional provisions in cl 1.6. However, the parking provisions in the Double Bay DCP for retail and commercial uses prevail by way of cl 1.8 of the Double Bay DCP, so 51 spaces are technically required for the approved retail/commercial development and 253 spaces for the existing cinema as the Double Bay DCP provides no parking rates that are inconsistent with the parking rates in the 2011 Parking DCP for a cinema.
While the documentation and evidence before the Court on the number of car parking spaces varied to a minor extent on the approved retail/commercial development depending on which car parking rates were used and the differences to the definition of GFA, the variations made no meaningful difference to be principal contested issue between the parties of whether a car parking credit was available for the disused cinema. It was generally agreed that the approved retail/commercial development generated a demand for 51 spaces and the existing cinema generated a demand for 253 spaces.
Woollahra Section 94 Contributions Plan 2002 and Woollahra Section 94A Development Contributions Plan 2009 are relevant because of the different approaches adopted by the parties.
Development contributions Practice notes - July 2005 (the s 94 Practice Note) by the Department of Infrastructure, Planning and Natural Resources was "prepared to assist council's, applicants and the community in understanding the issues and legal requirements" for developer contributions. The s 94 Practice Note was referred to by the parties during the hearing although the weight to be given to the document was in dispute.
The council's case
The council provided no expert town planning evidence however their Statement of Facts and Contentions in Reply states that the car parking contribution under s 94 of the EPA Act is appropriate for the demolition of an existing building and the construction of a new building as no parking is provided on site. The disused cinema does not generate a parking demand, having been closed since 2004, and as such there can be no parking credit for the disused cinema by virtue of the cessation of this use and the different operating hours. It follows that there will be an increased demand for public amenities and services (or car parking, in this case) brought about by the proposed retail and commercial development.
The contribution of $1,393,573 (plus indexing) is based on a deficit of 51 car parking spaces. The consequent contributions for the Double Bay retail civic improvements and Double Bay commercial civic improvements make up the total contribution of $1,562,675.56. I understand that if the applicant's approach is adopted then no contributions pursuant to s 94 would be applied.
The applicant's case
The applicant provided expert town planning evidence from Mr James Harrison. He maintains that the contribution for car parking pursuant to s 94 cannot be supported for a number of reasons. First, a credit for the car parking for the cinema is justified notwithstanding that it has not operated since 2004. The ability to use the site as a cinema is still available. Accepting that the existing cinema would generate the need for 253 car parking spaces and that the proposed retail/commercial development generates a need for 51 car parking spaces; then a surplus of over 200 spaces is available for the site. For this reason, it cannot be reasonably argued that the approved development will increase demand for car parking. Second, it does not necessarily follow that the cinema would generate the need for car parking outside normal retail hours given that other retail uses, such as supermarkets, licensed premises, news agencies, chemists and video stores operate outside normal business hours. Third, the cost of the proposed s 94 contribution is disproportionate to the cost of the development, being some 32% of the development cost. This goes to the reasonableness of the contribution. Fourth, a contribution of $20,000 and the dedication of land was made in 1972 for the cinema to satisfy the council's requirements for car parking at that time. The failure to recognise this monetary contribution and land dedication constitutes "double dipping" for the provision of car parking. Fifth, the council has consistently allowed reduced levels of car parking for new developments within the Double Bay commercial area without requiring a s 94 contribution.
The legislative framework
The dispute centres on the ability to impose condition C.3 pursuant to s 94 of the EPA Act. Section 94 relevantly states:
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.
In imposing a condition under s 94, the Court only has the power if the matters in s 94(1) are "satisfied". That satisfaction is a jurisdictional fact in the exercise of power. A condition requiring a payment of a contribution can only be imposed if firstly, the development "will.... require the provision of public amenities or public services within the area (in this case car parking) or secondly, the development " is likely to increase the demand of public amenities and public services within the area". The power in s 94(1) is further constrained by s 94(2) in that the terms of the condition must be "a reasonable dedication or contribution". The council has the onus of establishing the requisite state of satisfaction.
Findings
In considering the provisions of s 94, the submissions of the parties and the expert evidence, I am satisfied that condition C.3, as proposed by the council, cannot be made under s 94 as the proposed development does not satisfy the necessary jurisdictional fact that "development consent will or is likely to require the provision of or increase the demand for public amenities and public services within the area".
Credit for cinema parking
The conclusion that the proposed development will not require the provision of additional car parking relies on a finding that the existing cinema should be given credit for the existing car parking associated with the approval of the cinema. While Mr Flanigan is correct in that the s 94 Practice Note has no statutory power, the question of credit does not flow from this document but from s 96(4). As stated by Mr Harrison, the use of credits in s 94 assessments is well accepted and legitimately allows a credit for the earlier provision of land, money or other material benefits in certain circumstances. In this case, the circumstances support a credit for car parking.
The approval by the council in 1972 for alterations to the existing cinemas (B/A 1559/71) was contingent on a monetary contribution of $20,000 and the transfer of land (conditions 1 and 2 respectively). It must be assumed that the dedication of the land and the monetary contribution fully addressed the council's requirements for car parking for the cinema at that time given the approval and the satisfaction of conditions 1 and 2. The question of whether the car parking would be regarded as acceptable in 2012 is irrelevant.
I also do not accept that even if the approval was granted to a different applicant to that in these proceedings that this somehow negates the land transfer and monetary contribution in 1972. The approval of the cinema, and its consequent car parking, runs with the land and not with any particular person or applicant. I agree Mr Harrison that to ignore the earlier dedication of land and contribution would be essentially be "double dipping" on parking for the cinema.
I also do not accept that the absence of any use of the cinema since 2004 is a legitimate basis for denying a credit for car parking. There was no evidence to suggest that the cinema did not have a valid approval or that the approval had not been activated. As stated by Mr Harrison, the cinema could legitimately recommence operation at any time. Whether it is practical or economic to do so is irrelevant in considering the question of a credit for parking for the existing cinema.
Will the proposed retail/commercial development require the provision of or increase the demand for car parking?
As there is no reason why a credit should not be given for the spaces allocated to be cinema, the question to be answered is whether the proposed development will increase the demand for car parking. In my view, the answer is clearly no.
While there was some minor disagreement on the car parking required for the proposed development, it is inconsequential in terms of whether this development will increase the need for car parking. Using the 2011 Parking DCP, and comparing parking demand for the proposed development and the cinema; there is a surplus of over 200 car parking spaces.
I do not accept the argument by the council that the cinema operates under different peak times to other businesses in the area and as such, any direct comparison with the existing retail and commercial operations is not reliable. While much analysis of occupancy rates of cinemas at varying times of the day and various locations was undertaken by Mr Tim Rogers, the applicants traffic engineer and Ms Yee Yet, the council's traffic engineer in response to the council's contention, the analysis was unnecessary, in my view. The appropriate source of information for a comparison of car parking rates is the 2011 Parking DCP. This document makes no provision for potentially differing peak periods for different land uses but sensibly adopts a rate that presumably includes a consideration of the different operating characteristics of the different land uses when the car parking rates were adopted.
The council argued that cl 4.5 of the Double Bay DCP provides that no additional parking is required where a proposed development will not result in a net increase in GFA. As an alternative position to condition C.3, the council argued that a car parking contribution should be paid for the increased floor area above the area of the existing cinema. This results in a requirement for 26 spaces and a contribution of $710,450.
Notwithstanding the wording of cl 4.5, I agree with Mr Harrison that a reliance solely on GFA is largely meaningless unless some consideration is given to be existing land use and proposed land use. In this case, and in the context of s 94, a reliance on only GFA without a specific land use does not address the fundamental requirement of s 94; being demand for car parking. Clearly, (and as set out in the 2011 Parking DCP) different uses generate different levels of demand. In the absence of any understanding of whether a proposed development will increase the demand for car parking, a contribution, pursuant to s 94, cannot be applied.
Can a condition be imposed under s 94A?
Mr Flanigan acknowledges that in determining an appeal in relation to a condition imposed under s 94, the Court can exercise the power contained within s 94B(3) to disallow or amend conditions imposed under s 94, subject to certain criterion. A condition, pursuant to s 94A, however can only be imposed by a "consent authority". The definition of "consent authority" does not include the Court and as such, the Court, cannot exercise the power of the consent authority under s 94B(3) in relation to s 94A. It follows that the Court has no power to impose a condition pursuant to s 94A, as sought by the applicant.
Mr Hale SC, for the applicant, disagrees. He submits that the appeal was brought under s 97AA of the EPA Act and the Court has jurisdiction to hear and dispose of the appeal by way of s 17(d) of the Land and Environment Court Act1979 (the Court Act). As a consequence, s39 of the Court Act applies by way of s 39(1).
Relevantly, s 39 states:
39 Powers of Court on appeals
(1) . (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
.
(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.
In this case, the Court exercises the functions and discretions of the council and the decision of the Court is deemed to be the decision of the council. Amongst the functions and discretions, which the Court can exercise is the function and discretion under s 94A.
Section 94A(1) relevantly states:
94A Fixed development consent levies
(1) A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.
Mr Hale submits that the modification of a development under s 96 has retrospective effect (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299) and in this case, if the modification application is granted then the February 2012 development consent will be deemed from that date to have a condition in the form of the modified condition C.3 sought by the applicant. It will be deemed from the original grant of approval to contain a condition pursuant to s 94A.
In any event, Mr Hale submits that it is open for the Court to include a monetary contribution, equivalent to the contribution sought under s 94A, in condition C.3 as part of it's discretion pursuant to s 94B(3.
In considering the competing submissions, I agree with the submissions of Mr Hale. I am not satisfied that the broad powers provided to the Court in ss 39(2) and (5) of the Court Act are limited by the restrictive reading of the definition of "consent authority" suggested by Mr Flanigan. If the approach suggested by Mr Flanigan is adopted, then it would be open for a council to modify condition C.3 in the manner sought by the applicant because they are a "consent authority" for the purposes of s 94A. However a similar action would not be available to the Court on appeal. In my view, this clearly is inconsistent with the powers of the Court in ss 39(2) and (5) where there the Court is to "have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal".
There is also some merit in the submission of Mr Hale (and which was accepted by Mr Flanigan) that there is no reason why the Court could not impose a monetary contribution, of an amount identical to that suggested by the applicant under s 94A, pursuant to s 94B(3) if the Court found that it was reasonable in the particular circumstances of this case.
For these reasons, I find there is no barrier to the Court imposing a condition pursuant to s 94A in substitution of a condition pursuant to s 94.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. The application to modify condition C.3 of DA/96/2011 granted by Woollahara Municipal Council on 12 February 2012 for the demolition of an existing unused cinema and the construction of mixed retail/commercial development at 377-383 New South Head Road Double is modified by the deletion of this condition and it's replacement with the following Condition C.3 that reads:
C.3 Payment of Security, Levies and Fees (S80A(6) & S94A of the Act, Section 608 of the Local Government Act 1993)
The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees prior to the issue of a construction certificate, subdivision certificate or occupation certificate, as will apply.
Description
Amount
Indexed
Council Fee Code
LONG SERVICE LEVY
under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy
information/?le w information/lew calculator.stm
Contact LSL
Corporation or use
their online calculator
No
SECURITY
under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit - making good any damage caused to Council property.
$94,280
No
T115
DEVELOPMENT LEVY
under Woollahra Section 94A Development Contributions Plan 2009 This plan mav inspected at Woollahra Council or downloaded at .
Development Levy
$54,091 + Index Amount
Yes, quarterly
T96
INSPECTION FEES
under Section 608 of the Local Government Act 1993
Public Road and Footpath Infrastructure Inspection Fee
$420
No
T45
Security Administration Fee
$180
No
T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES
$148,971 plus any relevant indexed amounts and long service levy
Building and Construction Industry Long Service Payment
The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act, 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate. The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation's website or the Long Service Payments Corporation on 13 14 41.
How must the payments be made?
Payments must be made by:
- Cash deposit with Council,
- Credit card payment with Council, or
- Bank cheque made payable to Woollahra Municipal Council.
The payment of a security may be made by a bank guarantee where:
- The guarantee is by an Australian bank for the amount of the total outstanding contribution;
- The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable];
- The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent;
- The bank guarantee is lodged with the Council prior to the issue of the construction certificate: and
- The bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.
How will section 94 contributions be indexed?
To ensure that the monetary value of the contributions are not eroded over time by increases in costs the contributions will be increased annually. Clause 3.13 of Woollahra Section 94 Contributions Plan 2011 sets out the formula and index to be used in adjusting the contributions.
Do you need HELP indexing the contributions?
Please contact our customer service officers on 9391-7000. Failure to correctly calculate the indexed contributions will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).
Deferred periodic payment of Section 94 contributions under Woollahra Section 94 Contributions Plan 2011
Where the applicant makes a written request supported by reasons for payment of the contribution other than as required by clause 3.7 of the plan, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:
- The reasons given;
- Whether any prejudice will be caused to the community deriving benefit from the public facilities required by the proposed development;
- Whether any prejudice will be caused to the efficacy and operation of this Plan; and
- Whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected.
Where Council accepts periodic payment by way of instalments, it will be on the basis that each instalment is paid before work commences on the corresponding stage of the development and the amount of each instalment will be calculated on a pro-rata basis in proportion to the cost of the overall development.
Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where:
- The guarantee is by an Australian bank for the amount of the total outstanding contribution;
- The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable];
- The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent;
- The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and
- The bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.
Any deferred or outstanding component of the contribution will be indexed in accordance with clause 3.13 of the plan. Under the indexation provisions, if a deferred or periodic payment is made before the next anniversary of the Plan, there will be no increase in the amount payable. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid. Standard Condition: C6
3. The exhibits are returned with the exception of exhibit E.
____________
G T Brown
Commissioner of the Court
Decision last updated: 24 September 2012
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