London Fashion v Manly Council

[2009] NSWLEC 1162

Land and Environment Court

of New South Wales

CITATION:	London Fashion v Manly Council [2009] NSWLEC 1162
PARTIES:	APPLICANT London Fashion Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	11054 of 2008
CORAM:	Brown C
KEY ISSUES:	APPEAL :- consent orders - application to modify condition for s 94 contribution
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 94
DATES OF HEARING:	18-20 May 2009
EX TEMPORE JUDGMENT DATE:	20 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Craig QC SOLICITORS Susan Hill & Associates RESPONDENT Ms S Duggan, barrister SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

20 May 2009

11054 of 2008 London Fashion Pty Limited v Manly Council

JUDGMENT

1 COMMISSIONER: This is an appeal against an application to modify condition 156 of Development Application No 35/04 granted by Manly Council on 31 May 2005 for the demolition of the existing building and the construction of a supermarket, retail shops and residential apartments at 8-28 The Corso, Manly.

2 The modification application seeks the deletion of condition 156, which states:

156 Payment of contributions in accordance with section 94 of the Environmental Planning and Assessment Act 1979 is required for the development. The amount being in accordance with Council's Section 94 Policy applicable at the time of payment and paid prior to the issue of the Construction Certificate.

3 The council determined the modification application on 8 January 2009 where condition 156 was deleted and replaced by a new condition 156. This condition provided details of the contribution, based on the Manly Section 94 Contributions Plan 2004, and required a total contribution of $1,382,702.61. The new condition 156 was also opposed by the applicant and became the basis for the appeal.

4 The Court heard evidence from town planners Mr Geoff Goodyer for the applicant and Mr Stuart Harding for the council however prior to the completion of the hearing, the parties agreed to enter into Consent Orders.

5 In accordance with the Practice Note – Class 1 Development Appeals (cll 35 and 36) the "consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account".

6 In considering the consent orders, the Court was advised that the modification application was advertised and no submissions were received. Section 94B(3) of the Environmental Planning and Assessment Act 1979 provides that the Court may disallow a contribution allowed by a contribution plan because it is unreasonable in the particular circumstances of the case, even if it was determined in accordance with a contribution plan. On the basis that there was agreement between the parties, there is no reason why the provisions of s 94B(3) should not be used by the Court.

7 The orders of the Court, by consent, are:

1. Appeal allowed.
2. Development consent No 35/04 granted by the Respondent on to May 2005 be modified as follows:
a. Condition 156 be deleted and the following condition inserted:
156. A contribution is to be paid to the Council pursuant to section 94 of the Environmental Planning and Assessment Act 1979 in the sum of $450,000.00, being the sum payable as at 20 May 2009, such sum been determined taking into account the material public benefit derived from condition 26. This sum may vary at the time of payment in accordance with the Manly Section 94 Contributions Plan 2004 to reflect changes in the Consumer Price Index between 20 May 2009 and the date of payment. The contribution shall be paid to council prior to the release of the Construction Certificate.
b. Condition 212 be deleted.
c. Condition 26 be deleted and the following condition inserted:
26. The applicant is to enter into an agreement with Council permitting Council's garbage trucks to use the turntable in the Cole's loading dock, including the use of the turntable by garbage trucks for removal of garbage from premises that are serviced from the lane which provides access to the applicants loading dock.
3. The exhibits be returned.
_____________
G T Brown
Commissioner of the Court