Hampstead Home Units Pty Limited v Woollahra Municipal Council
[2016] NSWLEC 169
•9 December 2016
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New South Wales |
Case Name: | Hampstead Home Units Pty Limited v Woollahra Municipal Council |
Medium Neutral Citation: | [2016] NSWLEC 169 |
Hearing Date(s): | 9 December 2016 |
Date of Orders: | 9 December 2016 |
Decision Date: | 9 December 2016 |
Jurisdiction: | Class 1 |
Before: | Moore J |
Decision: | At [17] |
Catchwords: | DEVELOPMENT CONSENT – appeal against contribution – challenge to validity of condition – no basis from terms of State Environmental Planning Policy (Affordable Rental Housing) 2009 to impose condition – condition struck out |
Legislation Cited: | State Environmental Planning Policy (Affordable Rental Housing) 2009 |
Cases Cited: | Grant v Kiama Municipal Council [2006] NSWLEC 70 |
Category: | Principal judgment |
Parties: | Hampstead Home Units Pty Limited (Applicant) |
Representation: | Counsel: |
File Number(s): | 207048 of 2016 |
Publication Restriction: | No |
JUDGMENT
HIS HONOUR: These proceedings constitute an appeal against the imposition of a condition in a development consent granted by Woollahra Council (the Council) to a development application to strata title a residential flat building located at 286 New South Head Road, Double Bay. As part of the notice of development consent, being DA2016 16(1), the Council imposed a condition, G1, entitled “Monetary contribution under SEPP (Affordable Rental Housing) 2009”. That condition read:
In accordance with section 51 of State Environmental Planning Policy, Affordable Rental Housing 2009, monetary contribution of $205,750 is to be paid to council to recover the loss of low rental affordable housing. In accordance with section 94G(3B) of the Environmental Planning and Assessment Act 1979, the full contribution will be paid to the chief executive of Housing New South Wales, Department of Human Services."
The Applicant in these proceedings objected to the imposition of that contribution and, as part of its contentions set out under the heading "Statutory controls" in the Applicant's Statement of Facts and Contentions, it disputed whether the control applies to the assessment of the proposal, that being cl 51 of the State Environmental Planning Policy (the Policy).
Clause 51 is the clause of the Policy that sets out the formula to be used to calculate a contribution to be made. Assessment of the application was undertaken by Mr Wong, who had provided a statement of evidence in these proceedings. A copy of his Development Application Assessment Report forms part of Exhibit 2, being his statement of evidence.
It is clear from page 3 of that document, under the heading “State Environmental Planning Policy (Affordable Rental Housing) 2009”, that the calculation that has been undertaken has been based on information made available for the Council.
It is, however, an assessment that launches straight into an assessment of whether there is a reduction of the availability of affordable housing, that being a matter arising under cl 50 of the Policy, without consideration of the precursor question arising under cl 49 of the Policy, that is, is the building proposed to be subdivided a building that falls within the scope of the Policy.
Clause 49(1) of the Policy reads:
This part, that is the part that imposes contributions of reduction of affordable rental housing, applies only to those buildings that were low rental residential buildings as at 28 January 2000 and does not apply to any building that becomes a low rental residential building after that date.
There is, in consideration of this provision, no doubt that at the present time the building comprises a low rental residential building. There is, however, no evidence that the assessing officer ever asked himself, "Is there any evidence that demonstrates that this building was a low residential building as at 28 January 2000?".
When I put that proposition to Mr Rigg, the solicitor who is appearing for the Council this morning, he quite properly conceded that there was at the present time no such evidence, and that it was unlikely that even if I were to permit the granting of subpoenas and provide an adjournment to permit exploration of this issue, that it would be possible to obtain evidence that would evince satisfaction of that preliminary fundamental precursor test in cl 49(1).
The consequence of that is that the appeal must be upheld and condition G1 deleted. The question then arises to whether, under these circumstances, it is appropriate that I make an order for costs against the Council. The costs provisions that apply in proceedings such as these are not those that have the presumption that costs will follow the event, as determined by the High Court in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. They are subject to the provision that it must be fair and reasonable that a costs order should be made rather than the bare presumption of success in the event.
The first decision of the Court that discussed the principles that might be appropriate to be applied in such circumstances was the decision of the Chief Judge in Grant v Kiama Municipal Council [2006] NSWLEC 70, where his Honour set out, at [15], a range of matters where courts have considered that it will be fair and reasonable to make an order for costs.
The matters that his Honour set out in that paragraph were not said to be exhaustive, however, [15(f)] is in the following terms,
Where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the application or Respondent respectively properly advised should have known that it had no chance or very poor prospects of success.
His Honour then cites a number of authorities in support of that proposition. In these proceedings, it is not only the position that cl 49(1) sets out the test in the instrument, but in the guidelines to which the assessing officer has had regard on page 4.
There is a description and an explanation of the work that is done by cl 49(1). It is under the heading "Buildings excluded from Part 3", and it reads:
Part 3 only applies to boarding houses or residential flat buildings that became low rental buildings before 28 January 2000. It does not apply to forms of accommodation that are lawfully characterised in a fashion then set out.
It is, however, expressly made clear that the 28 January 2000 threshold is a fundamental hurdle that must be passed before anything else can be done under this part of the State Environmental Planning Policy (Affordable Rental Housing) 2009.
Properly considered, either by the assessing officer or those who may have subsequently considered the assessing officer’s report further up the decision-making chain in the Council or by those who may have advised the Council over the intervening period of time, it was obvious that the Policy - absent evidence to demonstrate compliance with cl 49(a) - could not possibly apply to this building.
In those circumstances, I am satisfied that the exception discussed by his Honour in [15(f)] of Grant v Kiama is applicable and it is fair and reasonable to make a costs order against the Council in these circumstances.
The consequence of all of that is as follows:
(1)The appeal is upheld;
(2)Condition G1 to development consent DA2016 16(1) for the strata subdivision of a residential flat building at 286 New South Head Road, Double Bay is amended by the deletion of condition G1; and
(3)The Respondent is to pay the Applicant’s costs as agreed or assessed.
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