Lippman v Burwood Council (No. 2)

[2007] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION:

Lippman v Burwood Council (No. 2) [2007] NSWLEC 204

PARTIES:

APPLICANT
Ed Lippman

RESPONDENT
Burwood Council

FILE NUMBER(S):

10768 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- reasonableness of s 94 contribution for road and traffic facilities

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

Written Submissions

 
DATE OF JUDGMENT: 

24 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Austin, QC
Instructed by Mr S. Balafoutis
of Norman Waterhouse

RESPONDENT
Mr D. Baird, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 April 2007

10768 of 2006 Ed Lippman v Burwood Council (No. 2)

JUDGMENT

Background.

1 My findings on this appeal were published on 19 March 2007 and final orders withheld pending resolution of the outstanding conditions of consent. After further discussions between the parties, most of the unresolved conditions were agreed, with the exception of condition 9, which required a s 94 contribution of $104,120 towards road and traffic facilities.

2 The applicant contended that it was unreasonable to impose this condition on the subject development. The parties were then directed to provide written submissions in respect of this condition.

Submissions.

3 The councils submission is that the condition should be imposed in accordance with the provisions of Councils Section 94 Contributions Plan - Road and Traffic Facilities (S94CP), which became effective from 11 April 2001. This S94CP was adopted in order to fund all the needed road improvement works to meet the demand of new developments.

4 Accordingly the S94CP states that:

The contribution to road and traffic improvement allocated for new developments in the Municipality should be based on the estimated use of road and intersection capacity by the traffic generated by these developments. The cost allocation approach considered in this study was based on the following:
• use of the measure (vehicle trips) that creates the need for increased road and intersection capacity requiring their improvement;
• use the afternoon peak hourly traffic volumes as the mean to establish roadworks requirements;
• establishment of a standard for road and intersection level of service considered as the upper limit for acceptable traffic congestion (Level of Service "D" was adopted); and
• allocation of only the costs associated with the road and intersection improvements required by the additional traffic generated by the new developments.

5 The S94CP identifies a list of works to be undertaken and accordingly adopts the following steps to apportion costs:

• estimate the number of vehicular trips generated by the growth in residential developments within the Municipality and by commercial developments in the Burwood Town Centres over the next 16 years,
• the total costs are allocated to each land use in accordance with the relative proportion of trips generated; and
• derivation of contribution rate for each land use based on the number of additional residential dwellings or the gross floor area for commercial and retail developments.

6 Accordingly, the contribution rates (subject to annual CPI adjustment) are set out in the following Table 3:

• Residential - $208/dwelling,
• Town Centre - $24/ sqm GFA.

7 From this, the council’s submission is that the development contains 3800 sq m gross floor area out of the total site area of 5350 sq m and the commercial rate of $27.40 (adjusted) is applicable. This results in the contribution amount of (3800 sq m x $27.40) $104120 being required.

8 The councils justification for this contribution is:

• The study area for the s 94 plan was the entirety of the Burwood Local Government Area, and the traffic and roadworks considered to be necessary works relate to the entire Local Government Area, as result of new development, which might occur across the Local Government Area.
• While "educational establishments" is not separately addressed or defined in the s 94 Plan, councils submission is that it is clear that when the S94CP is read in its entirety, that the description of land uses used, being "residential" and either "commercial" or “retail and commercial" is really a description of land being "residential " and lands that falls into a category of “all other uses" which has been broadly described as "commercial" or "retail and commercial" in the s 94 Plan.
• Even though the site is zoned residential 2 (a), and abuts the Burwood Town Centre area, as is the majority of the land which surrounds the Burwood Town Centre area, the S94CP envisaged a level of intensity of development in the surrounding areas to be much lower than the intensity of the development in the commercial zones in the Town Centre as now proposed in subject development scheme.
• The traffic generation from the school will directly impact on the Burwood Town Centre in a number of ways.

9 Against this, the applicant's submissions are that the starting point is s 94 (1) of the Act, which provides:

A consent authority may impose a condition under s 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

10 As the S94CP contains only the two categories of residential and commercial use in the Town Centre on which contributions are levied, consequently, Council has no power to impose contributions on schools, which are not included in the S94CP.

11 Furthermore, the school does not satisfy the requirements for the contribution rate because it is not located within the Burwood Town Centre. Also, the school does not fall within the definition of "commercial use", instead it falls within the definition of educational establishment. If the school did fall within the definition of "commercial premises" or "shops" the development would be prohibited.

Conclusions.

12 In my assessment of these submissions, I accept that the S94CP is the appropriate avenue to levy a development contribution. However in this case, the S94CP only requires a contribution for development within the residential areas in respect of new dwellings, or commercial uses in the Burwood Town Centre.

13 As the proposal does not involve the creation of new dwellings, I do not consider is not reasonable to impose any contribution in respect of some equivalency of development on the subject land.

14 With regard then to the other "commercial uses" application, the subject property is outside the Burwood Town Centre, where the potential for increased commercial use/GFA was estimated in the formulation of the S94 contribution. On this basis, the S94CP never envisaged a contribution for the schedule of works from the subject site, and I accept the applicant's submissions in this regard, that it would be unreasonable to impose this condition as it is not covered by the S94CP.

15 Insofar as the Court may disallow or amend a s94 contribution on appeal, subject to its reasonableness in the particular circumstances, I have given particular attention to the S94CP cost allocation approach, which only requires a contribution for the listed works as required by the additional traffic (my emphasis) generated by the new developments.

16 However this development predominantly involves the relocation of the junior school from its existing nearby location, to the subject site. It maintains the same number of students in the junior school, together with an additional 32 kindergarten students. There is an offset because the development involves the demolition of 4 semi-detached dwellings, which should have a marginal decrease in traffic usage.

17 It seems to me that the proposed development will not generate any significant additional traffic, due to the junior school student numbers being maintained. Whilst some additional traffic is likely by the kindergarten uses, this will be offset by the decrease in the residential uses, so that any increase will be of a marginal nature. I do not consider that this marginal change is likely to affect the designated ‘Level of Service “D”’, anticipated by the S94CP.

18 Notwithstanding this, the evidence from the traffic experts in this appeal confirmed that there will likely be some changes in travel patterns in the subject area. The school has accepted that a traffic management plan is required to be implemented to ensure that traffic flow maintains reasonable levels of safety and convenience. To achieve this, the school is required to construct traffic-control devices in the public streets and also pay for traffic-control lights at the intersection of Burwood Road and Cromer Street, if determined necessary by the RTA. These conditions of consent were recommended by Mr Hallam (CAE), and I consider their implementation represents a reasonable response to the changed traffic conditions arising power of the subject development.

19 In summary then, I do not consider that the subject site is included in the S94CP designated areas of the Burwood Town Centre, where are a contribution based on the increased GFA is required. Accordingly, I consider councils approach to require a contribution based on the proposed GFA of the school isunreasonable, particularly considering that the proposal predominantly involves the relocation of the school, with the potential for only a marginal increase in additional traffic generation. Therefore, the S94CP condition requiring a contribution of $104120 is deleted.

___________________

R Hussey
Commissioner of the Court
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