Lake Macquarie City Council v Hammersmith Management Pty Ltd - [2003] NSWCA 313

No judgment structure available for this case.

Reported Decision:
132 LGERA 225

Court of Appeal

CITATION: Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313

HEARING DATE(S): 17 September 2003

JUDGMENT DATE:
29 October 2003

JUDGMENT OF: Mason P at 1; Tobias JA at 2; Young CJ in Eq at 71

DECISION: Appeal dismissed with costs.

CATCHWORDS: ENVIRONMENT & PLANNING - whether contributions plan valid - whether condition of monetary contributin imposed by local council on particular development valid - meaning of "will or is likely to require" in s94(1) EPAA - Newbury test - ND

LEGISLATION CITED: Environmental Planning & Assessment Act 1979, s54(1), s94(10, s94B, s97, s80, s80A
Land & Environment Court Act 1979 cl.27(1)(c), s57(1)

CASES CITED: Parramatta City Council v Peterson (1987) 61 LGERA 286
Rockdale Municipal Council v Tandel Corporation Limited (1975) 34 LGERA 196
Association for Berowra Creek Inc. v Minister for Planning (2003) NSWLEC 39
Cowra Shire Council v Minister for Urban Affairs & Planning (2001) NSWLEC 113
House of Peace v Bankstown City Council (2000) 48 NSWLR 498
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Russo & Ors v Burwood Municipal Council - 25 November 1996, unreported
Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Stockland (Constructors) Pty Limited v Shellharbour Council - 24 April 1996, unreported
Randwick Municipal Council v Manousaki (1988) 66 LGERA 330
Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289

PARTIES :
Lake Macquarie City Council
Hammersmith Management Pty Limited

FILE NUMBER(S): CA 40161/03

COUNSEL: A: D.J. Preston SC / D R Parry
R: Dr G Flick SC / J Jagot

SOLICITORS: A: Peter Rees
R: Mallesons Stephen Jaques

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 312/02

LOWER COURT
JUDICIAL OFFICER : Lloyd J

CA 40161/03
LEC 312/02

MASON P
TOBIAS JA
YOUNG CJ in EQ
29 October 2003

LAKE MACQUARIE CITY COUNCIL v HAMMERSMITH MANAGEMENT PTY LIMITED

Judgment

1 MASON P: I agree with Tobias JA.

2 TOBIAS JA: This is an appeal from a decision of Lloyd J in the Land and Environment Court, whereby his Honour allowed an appeal by the respondent, Hammersmith Management Pty Limited (Hammersmith), against a decision of the appellant, Lake Macquarie City Council (the Council), to impose a condition upon a development consent granted to Hammersmith, requiring the payment of a monetary contribution pursuant to s 94(1) of the Environmental Planning & Assessment Act 1979 (the Act) in respect of "Conservation Land Requirements". The appeal to this Court lies only on questions of law as the primary judge was exercising the Class 1 jurisdiction of that Court: Land and Environment Court Act, 1979, s 57(1).

The background facts

3 Hammersmith is the registered proprietor of Lot 104 in DP 100408 (Lot 104), a parcel of land located wholly within the Northlakes Urban Release Area (the release area). Consisting of 129.1 hectares, Lot 104 forms approximately 30.5% of the release area. The main tributary traversing the release area is known as Cocked Hat Creek, and is surrounded by bushland on either side.

4 In December 1995, the Council resolved pursuant to s 54(1) of the Act to prepare a draft local environmental plan (the draft LEP) for the release area, its principal objective being to rezone rural land within the area to residential land. In a report to the Council on the draft LEP it was noted that:

“the main tributary of Cocked Hat Creek was identified for open space as it exhibited greater species diversity than all other three creek lines which traverse the site”.

5 The draft LEP was processed as draft Lake Macquarie Local Environmental Plan (Amendment No. 102) and duly made on 11 September 1996. It was gazetted on 8 October of the same year. In accordance with its provisions, the majority of the land belonging to Hammersmith was rezoned for residential purposes, while Cocked Hat Creek and the bushland corridor adjacent was rezoned 6(c) Open Space (Local Recreation) Zone (the conservation corridor). The corridor extended 100 metres either side of the creek line and had an area of 36.59 hectares.

6 On 11 December 2001, the Council approved the Lake Macquarie Section 94 Contributions Plan No. 2 – Northlakes (the contributions plan) pursuant to s94B of the Act, which applied to all land in the release area. This was the third contribution plan adopted by the Council for the release area.

The relevant statutory provisions

7 The relevant statutory provisions are as follows:

80

Determination

General

80A

Imposition of conditions

Conditions-generally

94 Payment towards provision or improvement of amenities or services

94B

Contributions plans-making

The Contributions Plan

8 Section 3.3 of the contributions plan was headed "Recreation Facility Provision" and specifically referred to the conservation corridor. In section 3.3.1, headed "Open Space Land for Recreation", reference was made to a previous contribution plan for the release area and to the fact that it had included a provision for the collection of s 94 contributions for a central corridor of open space following the main tributary of Cocked Hat Creek. It continued:

"This previous version of the plan stated that the central corridor of open space was predominantly devised to provide passive recreation throughout the Northlakes urban Release Area. In actual fact this corridor was devised primarily for conservation purposes. In particular it was designed to provide an adequate buffer to Cocked Hat Creek to maintain integrity of the creek. This is reflected in the proposed 7(2) Conservation (Secondary) zoning of the corridor under Draft Lake Macquarie Local Environmental Plan 2001. The corridor has therefore been excluded from the open space acquisition component of this plan but has been included in the conservation component of the plan."

9 Section 6 of the contributions plan was headed "Conservation". Having noted that the proposed width and location of the conservation corridor would also provide the opportunity to establish internal pedestrian and cyclist systems throughout the release area, section 6.2 (headed "Nexus") stated the following under the sub-heading "Causal":

"Consequently, this corridor provides ecological conversation and passive recreation functions (in this case bushwalking, pedestrians, cycling, nature appreciation etc). The Act of rezoning and subsequent development of the urban release area has generated the need to conserve this corridor and the benefit this provides the release area is clearly established. Therefore, Council considers it reasonable to levy contributions on all development within the Northlakes Urban Release Area to acquire the corridor along Cocked Hat Creek to ensure that it is preserved in its present state."

10 In section 6.4, under the heading "Apportionment", the following was stated:

"The need to preserve the Cocked Hat Creek corridor will be generated by the development of the site. Therefore, it is appropriate that development within the Northlakes Urban Release Area should be subject to the full cost of this land."

11 The full cost of acquiring the conservation corridor was stated in an appendix to the contributions plan as being $7,334,466.

12 On 30 October 2001, Hammersmith lodged a development application with the Council to subdivide part of its land into 37 community title lots. The Council granted consent to that application on 26 June 2002, subject to several conditions. Condition 53(a) of the development consent required the payment of monetary contributions pursuant to s 94 of the Act. This included a payment of $66,267 to be put towards the acquisition of the conservation corridor, ostensibly for the purposes of "Conservation Land Requirements". Hammersmith challenged the imposition of this particular condition in the Land and Environment Court, that being the only live issue at hearing.

The proceedings before the Land and Environment Court

13 Hammersmith commenced two sets of proceedings in the Land and Environment Court. The first, brought in Class 4 of the Court's jurisdiction, sought review of the Council's decision to impose the subject condition and ultimately challenged the validity of the contributions plan. The second, brought in Class 1 of the Court's jurisdiction pursuant to s 97 of the Act, challenged the imposition of that part of Condition 53 (a) which sought a monetary contribution for the acquisition of the conservation corridor. The two sets of proceedings were heard together by consensus.

14 In relation to the class 4 application, the primary judge held that the contribution plan was valid and consequently dismissed that application with costs. Hammersmith does not seek to challenge that decision. With respect to the Class 1 proceedings, his Honour allowed the appeal and deleted that part of condition 53(a) which sought to impose the payment of a monetary contribution for acquisition of the conservation corridor. This decision is the subject of the present appeal before this Court.

The reasoning of the primary judge

15 Although Hammersmith has not appealed against the primary judge's decision upholding the validity of the contribution plan, the Council has relied on parts of his Honour's reasoning on that issue in the appeal. It is therefore necessary to refer to the relevant parts of his Honour's reasoning on both issues.

16 The primary judge concluded from the text of the contribution plan that the primary purpose of the conservation corridor was indeed conservation, but that it also had as a secondary purpose that of recreation. The latter was demonstrated, for example, by the proposal for a cycleway along and through the corridor. It was however noted that the cost of providing that cycleway was included as part of the Roadworks and Traffic Management Facilities provided by the plan (to which there was no relevant challenge).

17 Two arguments were advanced by Hammersmith in support of its challenge to the validity of the contribution plan. The first was that conservation was not a purpose for which the power conferred by s 94 of the Act may be exercised. The second was that there existed no nexus between the conservation corridor and the development proposed.

18 As to the first of those propositions, the primary judge, accepting that the need for open space and recreation facilities generated by the development was satisfied by other provisions in the contribution plan, nonetheless considered that conservation was a purpose which could amount to a public amenity within the meaning of s 94(1). He therefore rejected the submission that conservation, in particular the provision of the conservation corridor, was a purpose falling outside the power conferred by the section.

19 As to the second proposition, the primary judge concluded as follows:

"19. Moreover, in the present case it is conceded that people within the Northlakes Urban Release Area will derive some benefit from, or make use of, the conservation corridor. This concession provides the necessary nexus between the corridor and development within the surrounding area. I conclude therefore that there is no invalidity in the contributions plan."

20 In relation to the Class 1 appeal, the primary judge commenced his consideration thereof in the following terms:

will or is likely to require

increase the demand

21 His Honour then set out eight factual bases for the view formed by him. These, so far as presently relevant, included the following:

need

increases the demand

22 The primary judge then considered a submission advanced by the Council, founded upon the judgment of Stein J (then a judge of the Land and Environment Court) in Parramatta City Council v Peterson (1987) 61 LGERA 286. The submission was that if persons within Hammersmith's proposed subdivision will or were likely to benefit from the conservation corridor that was sufficient to satisfy the requirements of s 94(1).

23 His Honour rejected this argument on the basis that s 94(1) was not satisfied where the proposed development did "not generate any need for the facility", which was the case here. His conclusion was expressed in the following terms:

will or is likely to require

increase the demand

Parramatta City Council v Peterson

24 The Council submitted that the primary judge had erred in law in the following respects:

will or is likely to require the provision of or increase the demand for

must generate the need for

need

require

Peterson

identifiable nexus

direct connection

clear need

demonstrated need

will or is likely to…increase the demand for

25 There is some overlap in the foregoing contentions. During the course of the oral argument it became clear that the above points could be distilled into four propositions:

need

(b) in determining the Class 1 appeal upon the basis that s 94(1) required that the development of Hammersmith's land " must generate the need " or must provide a " demonstrated need " for the corridor, the primary judge adopted a test which required proof of an actual need for that amenity, whereas the statutory phrase contemplates a prediction as to whether the particular development " will or is likely to " require the provision of the corridor or increase the demand therefor;

(c) as a variant of (b), the adoption by the primary judge of the test of " demonstrated need " or " clear need " imposed too stringent a test, not justified by the statutory phase which merely required a prediction as to whether the development " will or is likely to " require the provision of the corridor or increase the demand for it;

(d) having found, on the issue of the validity of the contributions plan, that future residents within the release area would derive some benefit from or make use of the conservation corridor, and that such a conclusion provided " the necessary nexus between the corridor and the development within the surrounding area ", it necessarily followed (in accordance with the judgment of Stein J in Peterson ), that the statutory phrase was satisfied. Further, even if the stricter construction were adopted (requiring the development to generate a ‘need’), the test was satisfied.

The first proposition

26 In my opinion, the primary judge made it clear that there were in fact two questions that he was required to answer, namely, whether the particular development "will or is likely to require the provision of" the conservation corridor and whether it would "increase the demand for" such a corridor. He set out those questions in [25] of his judgment.

27 Further to this point, the primary judge said at [26]:

questions

questions

will or is likely to require

increase the demand

28 It is true that he should have inserted in that sentence the words "or is likely to" after the word "will" where secondly appearing. I regard that omission, however, as nothing more than a typographical oversight. There can be no doubt that a judge of his Honour's experience was fully aware of the necessity to address each of the two limbs of the statutory phrase.

29 It is also true that the primary judge summarised the statutory phrase in the terms "must generate the need" in sub-paragraphs (ii) and (vii) of [26], [29] and [30] of his judgment. However, in my opinion, he intended that his use of the composite expression "need" should encapsulate each of the two limbs of the statutory phrase.

30 The genesis of the requirement of "need" in the present context is to be found in the judgment of Glass JA in Rockdale Municipal Council v Tandel Corporation Limited (1975) 34 LGERA 196 at 206, where his Honour said:

will create a need

proximate enough to the site to present a reasonable connection with the needs generated by the development on it

31 Furthermore, it is not unheard of for judges of the Land and Environment Court to utilise as a shorthand expression the generation by the particular development of a "need" for the relevant public amenities or public services: see for example, Peterson at 289; Association for Berowra Creek Inc v Minister for Planning (2003) NSWLEC 38 at [17] and [19]; Cowra Shire Council v Minister for Urban Affairs & Planning (2001) NSWLEC 113.

32 Councils have adopted a similar approach. Thus, in the present case, section 6.2 of the contributions plan (which I have extracted in [7] above) asserts that:

"…subsequent development of the urban release area has generated the need to conserve this corridor".

33 In its written submissions on this issue, the Council advanced the following reasons for there being two limbs to the statutory phrase:

"Sometimes a development may, in itself, require a public amenity or public service to be provided. Other times, the development is but one of many developments in the area which increase a demand for a public amenity or public service within the area. No one development, by itself, could be said to require the provision of a particular public amenity or public service. However, in aggregation, developments in the area require the provision of the public amenity or public service. Hence, the second limb is designed to deal with the situation where a development does not of itself require the provision of a public amenity or public service, but rather contributes towards the demand for that public amenity or public service to be provided."

34 It was acknowledged by the Council that the subject development in the present case did not fall within the first limb of the statutory phrase as it could not be said that, by itself, it "will or is likely to" require the provision of the conservation corridor. On the other hand, it was submitted that it "will or is likely to" increase the demand for the corridor. It was submitted that by conflating the two limbs of the statutory phrase, the primary judge did not pose the right question and thereby misdirected himself.

35 With respect, I do not agree. As Hammersmith submits, a "need" may be generated either exclusively or in part. If a particular development exclusively generates the need for a public amenity or public service, it may be concluded without doubt that it "requires" the provision of that amenity or service. On the other hand, if it generates such need only in part, then it may be concluded that the development will increase the demand for that amenity or service.

36 Accordingly, in my opinion, the concept of "need" is perfectly capable of encapsulating both limbs of the statutory phrase. His Honour's finding in [29] of his judgment that the proposed development "does not generate any need for" the corridor was no more than convenient shorthand.

37 In my opinion therefore the primary judge did not misdirect himself with respect to the questions which he was required by s 94(1) to address.

The second and third propositions

38 These can be dealt with concurrently. In essence, they raise two issues. The first is whether the primary judge's use of the concept of "need" imposed a more stringent test than was justified by the use in the statutory phrase of the expressions "require the provision of" and "increase the demand for". The second arises out of the use by his Honour (especially in [30] of his judgment) of the expression "demonstrated need". It was submitted that the primary judge set too stringent a standard in that it was necessary to "demonstrate" that the "need" had been generated, whereas the statutory phrase in fact requires a lesser degree of satisfaction, involving a prediction ("will or is likely to") as distinct from demonstrated proof.

39 In my opinion, there is no substance in either of these submissions. As to the first, the Council in its written submissions made reference to the Macquarie Dictionary definition of the word "require", which includes "to impose, need or occasion for" and "to place under an obligation or necessity". It was further submitted that the context in which the word "require" is used in s 94(1) and the wide variety of public amenities or public services to which the provision was capable of referring made it clear that the word "require" was not intended to be synonymous with "necessitate", but carried a less onerous meaning.

40 It was then submitted that in the relevant context the word "require" meant "to benefit from". To a significant degree, this construction is indistinguishable from the Council's submission, based on the decision in Peterson, that s 94(1) was satisfied if the particular public amenity would be of benefit to the particular development. For reasons to which I shall later refer, in my opinion Peterson provides no support for that contention.

41 Although I accept that it is necessary for the statutory phrase to be read in context, I cannot accede to the proposition that the word "require", especially when used in conjunction with the expression "increase the demand for", means no more than "will benefit from". Both statutory phrases – "require the provision of" and "increase the demand for" – require the decision-maker to focus on the particular development and to then ask what types of public amenities or public services that development will or is likely to require the provision of or increase the demand for. The Council's approach concentrates on the identification of a particular public amenity or public service and then asks whether the particular development is capable of benefiting from it. This, in my opinion, shifts the emphasis from that which was intended by the drafter of the provision.

42 I therefore have no difficulty in attributing the concept of "need" to the word "require" in the first limb as well as to the expression "increase the demand for" in the second limb of the statutory phrase. After all, the Macquarie Dictionary definition of the word "require" includes, as the Council's submissions acknowledge, "need". Furthermore, it defines the word "need" as including "a requirement" and "of something requisite". It further defines "demand" in terms of "to….require as just, proper or necessary".

43 I acknowledge the observations of Mason P in House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at 504-505 as to the use of dictionaries in construing words in a statute. Nevertheless, as his Honour points out, dictionaries are frequently availed upon and their use in the process of statutory interpretation has support from the highest authority. Accordingly, when one considers the statutory phrase as a whole and the purpose of s 94(1) in making special provision for the imposition of conditions which require the contribution of money or the dedication of land free of cost, two things follow: firstly, no proper basis exists for construing the statutory phrase in the manner contended for by the Council; secondly, the concept of "need" fully reflects the concepts of "require the provision of" and "increase the demand for". Accordingly, in my opinion, the primary judge did not err or otherwise misdirect himself in his use of the concept of "need"; nor did he apply a more stringent test than that encompassed in the statutory phrase.

44 As to the second issue, the Council's complaint is that the primary judge substituted a test requiring "demonstrated need" in lieu of the predictive test of "will or is likely to". In my opinion, his Honour was doing no more than stating that it was necessary for the Council to demonstrate that the particular development would generate a need for the conservation corridor in the sense that, when implemented, the development will or is likely to increase the demand for such a facility. Although the statutory phrase contemplates a prediction for the obvious reason that the development in question has not yet occurred, it is still necessary for there to be evidence that would, as his Honour surmised, "demonstrate" that such a prediction was justified. I see no error in the use of the expression by the primary judge which the Council has sought to impugn.

The fourth proposition

45 The Council submitted that the decision of Stein J in Peterson was authority for the proposition that the statutory phrase was satisfied where the relevant development would benefit from the public amenity in question. In my opinion, this submission misconstrues the essence of Stein J's decision.

46 In Peterson, the development involved a significant commercial and retail building with a floor space of 24,162 m2. It was undisputed that it would "generate a need" for more than the 357 car parking spaces to be provided within the proposed building; ibid at 289. (It is noteworthy that his Honour, in the context of the statutory phrase in s 94(1), utilised the expression "generate a need").

47 The council proposed to construct a large car park which was to be situated some 800m west of the development site and on the opposite side of the railway line. There were in fact council car parks closer to the site, including one which had recently been completed. It was common ground that on-street parking facilities in the city centre were insufficient both for short and long-term parking, so that the need generated by the development could only be satisfied by the provision of further public car parks.

48 It was submitted that the Assessor in that case had erred when he held that it was not open to the Council to impose a condition requiring a monetary contribution pursuant to s 94(1) of the Act to the construction of the proposed car park because there was no "identifiable nexus" or "direct connection" between the development and the car park. After considering the pre-1979 authorities and referring to the threefold test laid down by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, which required, inter alia, that a condition "must fairly an reasonably relate to the development" (the second Newbury test) to be valid, his Honour said (at 295):

Newbury

49 His Honour then considered the effect of s 94(1) of the Act and said (at 296):

50 Relying on these passages, the Council submitted that the statutory phrase in s 94(1) was satisfied if the development in question "is benefited by the public amenity provided". It seems to me that the conflation of the two limbs of the statutory phrase alleged to have been committed by the primary judge in the use of the concept of "generated need", is being adopted in this submission to serve the Council's purposes. It is, in effect, submitting that the two limbs of the statutory phrase can be conflated such that the statutory test is satisfied if the development will or is likely to be "benefited by" the particular public amenity provided.

51 More relevantly, Stein J's judgment in Peterson proceeded from the undisputed basis that the development generated a need for the type of public amenity that the Council in that case sought to provide. There was therefore no issue that the development increased the demand for the provision of such an amenity. The only issue was whether the proposed car park, in respect of which the monetary contribution was imposed, would meet the increased need or demand generated by the development for such an amenity. His Honour found that it would do so as the amenity was to be provided within the Council's area (as s 94(1) required) and the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear, as the provision of the car parking facility in question had the potential to attract vehicles which currently parked in facilities closer to the proposed development, thus freeing up spaces in those facilities to be used by those resorting to the development.

52 In my opinion, a condition can only be validly imposed pursuant to s 94(1) if:

Newbury

Russo & Ors v Burwood Municipal Council

53 The third Newbury test is a restatement of the test of reasonableness in the special sense expressed by Lord Greene MR in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229. It is a test going to the validity of a condition and is not to be confused with the merit requirement of reasonableness mandated by s 94(2).

54 So far as the first Newbury test is concerned, it would generally be satisfied if one or other of the limbs of the statutory phrase was satisfied. The same comment applies (at least in most cases) to the second Newbury test. As was submitted by the Council during argument, the reference in the statutory phrase to "public amenities and public services" is in general terms and not directed to any particular public amenity or public service. In other words, it refers to a type of amenity or service rather than a particular amenity or service. Thus, in Peterson the statutory phrase was satisfied because the development generated a need (in that it increased the demand) for the provision of an off-street car park. The only question in that case related to the particular off-street car park in respect of which the monetary contribution was sought. It was in that context that the second Newbury test became relevant.

55 The type of public amenity relevant to the present case is that of a conservation corridor. Therefore, the relevant question was whether the primary judge was satisfied that Hammersmith's development was or was likely to increase the demand for such a corridor. If not, the enquiry needed go no further. If it did, then a second question would have arisen as to whether a condition requiring payment of a monetary contribution towards the acquisition of the particular corridor "fairly and reasonably" related to that development. It is only at that point of the enquiry that the question whether the development would be benefited by the corridor would become relevant.

56 The foregoing analysis finds support in the later decision of Stein J in Stockland (Constructors) Pty Limited v Shellharbour Council, 24 April 1996 (unreported). The issue in that case was whether Council administrative offices and a technical services depot (in respect of which the monetary contribution was sought) constituted a "public service" or a "public amenity". His Honour held that they did, provided they were operated for the benefit of the public. However, in the course of his judgment he said (at 4):

must also satisfy

Newbury

· be for a planning purpose

· fairly and reasonably relate to the development (the nexus test)

· be reasonable." (emphasis added)

57 It is apparent from the above passage that his Honour considered that before a monetary contribution for a public amenity or service could be extracted from a developer, three conditions had to be satisfied. The first was compliance with the statutory phrase. The second was the reasonableness of the contribution. The third was the satisfaction of the Newbury tests. It is noteworthy that his Honour refers to the second test as "the nexus test".

58 There is no reason to think that Stein J's approach in Peterson was intended to be any different to that which he later adopted in Stockland. There was no issue in Peterson with respect to the first two conditions outlined above. It was only the third condition, the second Newbury test in particular, that was in issue.

59 If the Council's submission is correct, then it follows that the statutory phrase need not be addressed, as it adds nothing to the Newbury tests. Provided that the condition purports to be imposed pursuant to s 94(1) and satisfies the Newbury tests (the second in particular), the condition may be validly imposed. In my opinion, such a construction of s 94(1) cannot be accepted. As Hammersmith submitted, the rationale in s 80A(1)(h) of the Act empowering the imposition of a condition if "it is authorised to be imposed under…s 94…" is that conditions which mandate the payment of money or the dedication of land free of cost are, and should be, the subject of more onerous requirements for their validity than conditions which do not have that effect.

60 In my opinion, it follows from the foregoing that the primary judge did not err when he held in [30] of his judgment that s 94(1) was not satisfied merely because the "residents of the proposed subdivision may conveniently make use of the conservation corridor".

61 The final aspect to be dealt with in relation the fourth proposition arises from the primary judge's finding, when considering the validity of the contributions plan, that the fact that persons within the release area would derive some benefit from or make use of the conservation corridor, provided the necessary nexus between the corridor and development within the surrounding area. The Council submitted that such a finding was inconsistent with his Honour's later finding that the development of Hammersmith's land would not generate a need for the corridor for the purposes of s 94(1).

62 It is apparent from the primary judge's reasoning on the contribution plan issue that he considered the question to depend, at least in part, on there being the "necessary nexus" between the conservation corridor to which the plan referred and the development proposed for the release area, that nexus being satisfied by the fact that the future population of the release area would derive some benefit from or make some use of the corridor. His finding went no further than that, although it would, in all probability, have resulted in the satisfaction of the second Newbury test (the "nexus test" as Stein J referred to it in Stockland) when applied to the condition under appeal.

63 The Council referred in its submissions to clause 27(1)(c) of the Environmental Planning & Assessment Regulation 2000, which provides as follows:

64 No doubt the passage from section 6.2 of the contributions plan referred to in [7] above would satisfy the requirement of that sub-clause of the regulation. It is not apparent that any non-compliance with the provisions of that sub-clause expressly constituted a basis for the challenge by Hammersmith to the lawfulness of the contributions plan. However, one of the two reasons for that challenge identified by the primary judge in [23] of his judgment was that:

"There was and is no nexus between the conservation corridor and the development within the Northlakes Urban Release Area which will not and is not likely to require the provision or increase the demand for such corridor."

65 The primary judge seems to have answered the first part of the question so tendered by Hammersmith in the affirmative, holding that the derivation of benefit from the conservation corridor by future residents within the release area "provides the necessary nexus between the corridor and development within the surrounding area". However, I do not believe that his Honour's finding, sufficient though it may have been to the issue of validity of the contributions plan, can be converted (as the Council seeks to do) into a finding that development within the release area will or is likely to require the provision of or increase the demand for the conservation corridor. The primary judge addressed that question specifically when considering the Class 1 appeal and answered it in the negative. I have rejected the Council's submission that Peterson is authority for the proposition that the statutory phrase is satisfied by a "nexus" arising from a prediction that future development in the release area will be benefited by the conservation corridor. It follows therefore that there is no inconsistency between the primary judge's findings which support the validity of the contributions plan on the one hand and his finding of invalidity of the specific condition proposed pursuant to s 94(1) on the other. Accordingly, there was no error by his Honour in this regard.

66 For the sake of completeness, I should refer to a submission by the Council that, although the primary judge accepted the evidence of Mr Sanders that the need for conservation of the land in the corridor arose from its intrinsic characteristics and not by reason of the proposed development, nonetheless the corridor had instrumental or utilitarian value which justified its conservation. It was said that this value would generate the provision of or increase the demand by the development for the facility.

67 Although the Council referred to some evidence of a Mr Murray and Associate Professor Adam that might have supported such a submission, there is no indication that the primary judge accepted that evidence or that he was prepared to infer from it an affirmative answer to the two questions posed by the statutory phrase. Any error in failing to do so (if there is one) could not, in my opinion, give rise to a question of law and would involve no more than an error of fact: see Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 at 333 where Clarke JA (with whom Hope and McHugh JJA agreed), held that even perverse or unreasonable findings of fact do not constitute errors of law.

Conclusion

68 In my opinion, the various challenges to the decision of the primary judge fail. Even if any of them had been successful it is to be noted that the primary judge expressed an additional and independent ground for rejecting the impugned condition. In [30] of his judgment he concluded:

"Moreover, absence of any demonstrated need suggests that the condition is unreasonable, even if it is determined in accordance with the contributions plan and so would not be allowed by the Court pursuant to s 94(2)."

69 There is no challenge to that finding: nor could there be as it was one of fact. That alone is sufficient to justify dismissal of the appeal: Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289 at [30].

70 However, as no error of law on the primary judge's part has been demonstrated, it follows that the appeal should be dismissed with costs.

71 YOUNG CJ in EQ: I agree with Tobias JA.

**********

Last Modified: 10/31/2003

Citations

Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313

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CITATION:	Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313
HEARING DATE(S):	17 September 2003
JUDGMENT DATE:	29 October 2003
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Young CJ in Eq at 71
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	ENVIRONMENT & PLANNING - whether contributions plan valid - whether condition of monetary contributin imposed by local council on particular development valid - meaning of "will or is likely to require" in s94(1) EPAA - Newbury test - ND
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979, s54(1), s94(10, s94B, s97, s80, s80A Land & Environment Court Act 1979 cl.27(1)(c), s57(1)
CASES CITED:	Parramatta City Council v Peterson (1987) 61 LGERA 286 Rockdale Municipal Council v Tandel Corporation Limited (1975) 34 LGERA 196 Association for Berowra Creek Inc. v Minister for Planning (2003) NSWLEC 39 Cowra Shire Council v Minister for Urban Affairs & Planning (2001) NSWLEC 113 House of Peace v Bankstown City Council (2000) 48 NSWLR 498 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Russo & Ors v Burwood Municipal Council - 25 November 1996, unreported Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Stockland (Constructors) Pty Limited v Shellharbour Council - 24 April 1996, unreported Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289
PARTIES :	Lake Macquarie City Council Hammersmith Management Pty Limited
FILE NUMBER(S):	CA 40161/03
COUNSEL:	A: D.J. Preston SC / D R Parry R: Dr G Flick SC / J Jagot
SOLICITORS:	A: Peter Rees R: Mallesons Stephen Jaques

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 312/02
LOWER COURT JUDICIAL OFFICER :	Lloyd J