Longboard Developments Pty Ltd v Byron Shire Council

[2001] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION:	Longboard Developments Pty Ltd and Ors v Byron Shire Council [2001] NSWLEC 143
PARTIES:	APPLICANTS: Longboard Development Pty Ltd and Ors. RESPONDENT: Byron Shire Council
FILE NUMBER(S):	40120 of 1999
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- declaration as to true meaning of condition of development consent for residential subdivision requiring s 94 contributions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 94 and s 94AB
CASES CITED:	Fitch v Shoalhaven City Council (1987) 67 LGRA 165
DATES OF HEARING:	19-20/02/01
DATE OF JUDGMENT:	07/04/2001
LEGAL REPRESENTATIVES:	APPLICANTS: Mr B J Preston SC SOLICITORS Phillips Fox RESPONDENT: Mr G Newport, Barrister SOLICITORS Henningham and Ellis-Jones

JUDGMENT:

IN THE LAND AND Matter No. 40120 of 1999

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 4 July 2001

LONGBOARD DEVELOPMENTS PTY LIMITED AND ORS.

Applicant

v

BYRON SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its further amended class 4 application the Applicant claims declaratory relief in respect of a condition of a development consent granted on 28 March 1996 by this Court in upholding an appeal in class one proceedings (No 10746 of 1995 Ray Group Pty Limited v Byron Shire Council).

2. The development consent granted by the Court was for a residential subdivision of land known as lot 1 Deposited Plan 702271 comprising an area of some 24 ha known as Fern Beach Estate, South Golden Beach, North Ocean Shores (the development site) into 82 residential lots and some additional appurtenant lots (the Development Consent) was granted subject to a large number of conditions which included Condition C30 which was in the following terms:

C30 That the contributions as set out in the attached Schedule be paid.

3. The “attached Schedule” which was annexed to the Court’s orders granting the Development Consent included the following relevant matter:

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

The following contributions are current for a period of three (3) months from the date of this consent. If payment is made subsequent to three (3) months from the date of this consent the contribution shall be increased by the amount by which the Consumer Price Index (all groups Sydney) has increased from the date of approval to the date of payment (percentage increase). If payment is made subsequent to the three (3) month period it is essential that a check be made with Council to ascertain the current rates.

CONTRIBUTION TYPE	LOTS	RATE PER LOT	AMOUNT
ACTIVE OPEN SPACE ACQUISITION	21	$1004	$21,084
ACTIVE OPEN SPACE EMBELLISHMENT	82	$1195	$97.990
PASSIVE OPEN SPACE EMBELLISHMENT	82	$556	$45,592
COMMUNITY FACILITIES	82	$1627	$133,414

NOTE

With respect to the SCHEDULE OF CONTRIBUTIONS detailed above, pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, the above contributions shall be reduced by the value of land dedicated for active and passive open space and the cost of active and passive open space embellishment work and the cost of construction of community facilities and the value of any monetary contributions made or carried out by the developer.

4. In his reasons for judgment, Stein J granting the Development Consent considered at pp 8 - 9 the question of appropriate conditions to be imposed. It is apparent that condition C30 (and the accompanying schedule of contributions) was one of a large number of conditions which were imposed by the Court with the parties’ consent (in the sense that it was a condition proposed by the Council and accepted by the developer).

5. It is apparent that in the implementation of the Development Consent a number of disputes arose between the parties, leading to the commencement of the present proceedings on 22 June 1999 which in their original form claimed mandatory orders against the Council to issue a subdivision certificate pursuant to Pt 4A of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (or alternatively and according to the terms of the amended class 4 application pursuant to “s 327 of Local Government Act 1919) in respect of a particular subdivision plan.

6. Those original proceedings were the subject of consent orders made by the Court on 26 July 1999 which orders included a direction that the Applicant amend the class 4 proceedings to seek “appropriate declarations as to the construction of condition C30 and the schedule referred to therein”. This direction reflected the content of the “Terms of Agreement” between the parties which order 1 of the consent orders noted. It was pursuant to the Court’s direction that the Applicant filed on 21 September 1999 its further amended class 4 application claiming the following relief:
1. A declaration that, on its true construction and in the circumstances, the amount of monetary contributions payable by the Applicants to the Respondent pursuant to Condition C30 in the conditions of consent imposed by this Court on 28 March 1996 in proceedings No. 10746 of 1995 (“the Condition”) and the schedule referred to therein is nil.
2. In the alternative, a declaration that the Condition and the schedule referred to therein is invalid and severable.

7. At the commencement of the hearing, the Applicant abandoned its claim to the alternative relief set forth in par 2 of its further amended application.

8. At the hearing, the Applicant acknowledged the need to further amend its claim to declaratory relief so that it would reflect the outcome of the proper construction of Condition C30. However, no final form of amendment was proffered at the hearing and the parties agreed that the final form of any appropriate declaration should necessarily await the Court’s construction of condition C30. This course is acceptable and is adopted.

9. A final introductory matter to note is the fact there is pending in the Court a separate but related class one proceeding (No 10746 of 1995) in which the Applicant seeks modification of the Development Consent pursuant to s 96 of the EP&A Act by the deletion of condition C30. That proceeding was filed on 28 March 2000 but has not yet been pursued by the Applicant.

10. The parties to the present class 4 proceedings agree that it is appropriate that these proceedings be determined in advance of the related class one proceedings. This is because of the fact that the Applicant does not intend to pursue the related class one proceedings if it is successful in the present class 4 proceedings ie if the Court accepts the construction of condition C30 that is advanced by the Applicant. If, however, the Applicant is not successful in the class 4 proceedings, its present intention is to prosecute the related class one proceedings.

11. Accordingly, the sole issue for adjudication in the present proceedings concerns the true meaning of condition C30 in the context of the Development Consent.

B. THE RELEVANT FACTS

12. The relevant facts are found in the following sources of evidence:
(i.) the Development Consent (including the relevant conditions imposed thereon): Exhibit 1
(ii.) the provisions of the Council’s s 94 Contributions Plan—Open Space: Exhibit 5;
(iii.) the provisions of the Council’s s 94 Contributions Plan—Community Facilities Exhibit 6;
(iv.) the affidavit evidence of various experts filed by each of the parties.

13. Of these sources of evidence, the terms of the Development Consent are of primary importance because the sole issue to be adjudicated upon concerns the proper construction of the Development Consent.

14. However, the Council’s Contributions Plans provide relevant background material to that task of construction because it is common ground that as at the date when the Development Consent was granted by the Court, the EP&A Act, s 94(7) then relevantly provided:

When granting consent to a development application made on or after 1 July 1993, a council may impose a condition referred to in this section only if it is of a kind allowed by and is determined in accordance with, a contribution plan approved under section 94AB.

15. The EP&A Act, s 94AB relevantly enabled a council “to prepare and approve a contributions plan for the purpose of imposing conditions referred to in s 94”: subsection (1).

16. Section 94AC(1) requires judicial notice to be taken of a contributions plan, the validity of which may not be questioned in any legal proceedings except those commenced in this Court within three months of the date on which the plan came into effect. (Both plans came into force on 22 June 1993.)

17. The EP&A Act, s 94(1) and (2) which contain the relevant power to require contributions to public amenities and services at the relevant time provided as follows:

(1) Subject to subsection (2), where a consent authority is satisfied that a development, the subject of a development application, 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 consent to that application 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) shall be imposed only:

(b) to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.

18. The power vested in this Court by s 94(8) to disallow or amend a condition imposed pursuant to a contributions plan because the condition is “unreasonable” is not relevant to the present case, because as I have earlier noted, when granting the Development Consent, Stein J adopted the conditions (including condition C30) that the parties had agreed upon.

19. The affidavit evidence of the parties’ respective expert witnesses is not strictly relevant to the question of the proper construction of condition C30.

20. It is more relevant to the application of the determined meaning to the facts that may become necessary depending upon the outcome of the disputed issue of the proper construction of condition C30.

21. The relevant facts can be conveniently summarised separately by reference to each of the sources of evidence I have identified.

(i) The terms of the Development Consent

22. As I have earlier mentioned, the Development Consent was granted subject to a large number of conditions (which were drafted by the parties, and were imposed by the Court with the parties’ consent). In addition to condition C30, there are a number of relevant conditions which can be conveniently noted in two separate groupings relevant for the purposes of the present proceedings, namely:

(i.) conditions relevant to dedication of land for active and passive open space;

(ii.) conditions relevant to active and passive open space “embellishment work”.

23. The only condition relevant to (i) is Condition C11 which is as follows:

That land shown as park and/or pathways, being Lots 59, 101 and 102 as shown on plan 2408 sheet 13 (Exhibit 43) and Lots 87 and 88 as shown on plan 2408G sheet 15 (23/4/96) to be utilised only for the purpose of showing the pathways is to be dedicated as public reserves for recreation at no cost to Council. The applicant shall lodge for the approval of Council a Plan of Management for Lot 102. Such plan shall define management proposals for protection of the achronychia (A littoralis) stand, protection of land zoned 7(b) and access to drainage and water quality management structures.

24. The conditions relevant to (ii) are as follows:

C14A.. The subdivider is to construct a bikeway along the eastern side of Rangal Road and Kallaroo Circuit for the full frontage of the subject site to Council’s specifications.

C35 The applicant shall construct concrete pathways within proposed lot 87 as shown on plan 2408G sheet 15 (23/4/96) fronting proposed lots 54 to 59 and adjacent lots 38, 39 and 40 in proposed Road No. 4 within the pathway from proposed Lot 40 to the proposed public reserve (proposed Lot 101) to a location approved by Council’s Development Engineer. Engineering plans in triplicate for pathway construction shall be submitted to Council’s Development Engineer for approval prior to works commencing.

C40. The owner is to carry out at his own cost: the construction of the following on Lot 43:

C46.The construction of a boardwalk and fencing within Lot 88 shown on plan 2408G sheet 15 (23/4/96).

C55.The block is to be filled to a minimum of RL 3.1 metres AHD and compacted so as to drain all surface water to the road, subject to banksia tree protection in accordance with the plan prepared by Sinclair Knight Merz. The finished level at the front boundary line is to be 150mm above the road centreline level with the block graded from rear to front at a grade of 1:100. No filling or variation to natural ground levels should occur within 1m of any boundary alignment, other than necessary to bring surface undulations to a gradient consistent with gradients of adjoining properties. The block is to be shaped so as no water is to be shed onto adjoining properties.

C59.The site being landscaped generally in accordance with the approved landscape plan prior to occupying the development and maintained to the satisfaction of Council’s Planning Manager.

(ii) The Council’s s 94 Contributions Plan—Open Space

25. This Plan was adopted by the Council on 22 June 1993. The Plan is divided into two parts—“General” and “Open Space”.

26. Under the “General” Part, the following matter appears at pp 4 and 5:

Types of Contributions

Contributions levied under Section 94 are to be made in the following ways:

Credit for Land Dedication

Where land is dedicated to Council or where an applicant provides works in kind which are in excess of the contribution required, the excess land value and value of works will be held by Council as a credit for future development. The credit will be expressed in the terms of the number of allotments that will be off-set against the contributions for the same facility category in any future development by that applicant within the catchment area. This will generally be made the contribution rate at the time of the subsequent development.

27. Under the “Open Space” Part, a number of definitions appear on p 10 including the following:

Active Open Space : Land developed for the purpose of formal sporting activities

Passive Open Space: Includes land developed for informal leisure activities, such as parks and gardens, playgrounds, foreshore and riverside areas and natural areas.

28. Under the heading “Open-Space—Population Catchment Standards” the following appears at p 11:

For the purposes of calculating the area of land to be developed for public open space a standard of 2.83 hectares per 1,000 persons has been adopted. Public open space must be provided as follows:

1.62 hectares (60% active open space per 1,000 persons) and 1.21 hectares (40% passive open space). The contribution rates have been based on 3.0 persons per dwelling house which has been derived from 1991 estimates of dwelling occupancy rates for Byron Shire. Tourist accommodation occupancy rates will be based on 1 person per bed.
1.63 Dedication of land for open space will not be accepted unless it forms part of an existing or future open space network as outlined in adopted development control plan or for the purposes of neighbourhood parks. Dedicated open space is to be developed for low maintenance use before the land is dedicated. The dedication of land for active open space will not be accepted unless the land is in an appropriate location and forms part of an existing or future open space network in accordance with an adopted development control plan. Active open space is to be developed, drained, top soiled and grassed and provided with amenities, water supply, vehicular access prior to dedication in accordance with Council’s standards. Assessment of land in regard to the suitability of dedication will occur at the development application stage. The case of staged development credit may be given for areas of open space where this is considered appropriate by Council.

29. Under the heading “Active Open Space Requirements”, the following appears at pp 14 and 15 based upon “the anticipated 1997 residential population projections”:

The amount of active playing field land area for each urban centre is as follows:

* Ocean Shores Catchment

Total playing field area required: 1.7 hectares

Total land requirements: 1.9 hectares

30. Under the heading “Passive Open Space” at pp 15 to 18 (incl) the following matter is included:

Children access and use the total residential area to satisfy their play needs, not just designated play spaces. It is essential that planners and designers of new residential areas recognise these needs, and plan accordingly by creating child-friendly residential areas. The Section 94 Plan, however, specifically provides for designated play areas, and as such, methods for provision are listed below.

Listed below are the following subheadings—

6.1 Design Characteristics
6.2 Play space Hierarchy and Networks
6.2.1 Local Neighbourhood Play Spaces
6.2.2 Community Comprehensive Play Spaces

31. The 1997 “Passive Open Space Requirements” stipulated for “Ocean Shores” are as follows:

· Local neighbourhood playspace x 5
· Community comprehensive playspace x 1

Play space land requirements: 0.8 hectares

Total land requirements: 1.1 hectares

32. Section 8 of the Plan is headed “Calculation of Levy for Open Space” and includes Table 6 which stipulates “Contributions for Acquisition and Embellishment of Open Space” based upon a per lot rate. For the locality “Ocean Shores” (which includes the development site) the relevant contribution rates per lot are as follows:

(a) Land Acquisition per Conventional Lot created
Passive $787

Active $1,004

Total $1,791

(b) Embellishment per Conventional lot created

Passive $556

Active $1,004

Total $1,791

(It is to be noted that in the Schedule of Contributions attached to Condition C30 of the Development Consent, the abovementioned rates for “active and passive open space embellishment are adopted” as is the rate for active open space acquisition except that whereas the embellishment rates are applied to 82 lots, the active open space acquisition rate is applied only to 21 lots. In his affidavit sworn 19 September 2000, Mr Montgomery, the Council’s “Section 94 and Tree Preservation Officer” provides some explanation as to why the active open space acquisition contribution was based upon 21 lots and not 82 lots, namely that since the developer was required by Condition C30 to dedicate some 1,774 m2 (lot 52) as active open space (in addition to some 9,300 m2 of passive open space) there should be a reduction in the overall contribution for active open space acquisition).

(iii) The Council’s s 94 Contributions Plan—Community Facilities

33. This Plan, like the “Open Space” Contributions Plan, was adopted by the Council on 22 June 1993 and follows the same format as that Plan, being divided into two parts— “General” and “Community Facilities”.

34. “Community Facilities” is defined by the Plan to include the following:
(i.) long day centre
(ii.) occasional/casual child/care
(iii.) out of school hours care;
(iv.) playgroups;
(v.) pre-schools;
(vi.) toy library;
(vii.) youth centre;
(viii.) community hall/centre;
(ix.) library;
(x.) senior citizens centre;
(xi.) multi-purpose child care centre;
(xii.) multi-purpose community centre.

35. Table 4 stipulates the following contributions for community facilities on a per lot basis—

Shire wide facilities $364

Town level facilities $1,263

Total $1,627

(It is to be noted that this total rate is applied to 82 lots in the Schedule of Contributions attached to Condition C30 of the Development consent.)

(iv) The Parties’ expert affidavit evidence

36. The Applicant adduced affidavit evidence of three experts—Mr Meineke (Town Planner), Mr White (Valuer) and Mr Cottrell (Quality Surveyor).

37. Mr Meineke expressed his own opinion as to how the contributions required by Condition C30 should be calculated or determined. His method of determining the required contribution essentially is reflected in the Applicant’s primary submission as to the proper contribution of the Condition which I shall hereafter consider.

38. Mr Meineke expressed the opinion that of the land dedicated as public reserve in accordance with Condition C11, lots 50 and 51 (these are the current references (ie as contained in the registered plan of subdivision DP 1006418 registered on 15 October 1999) to the lots referred to in Condition C11) have been dedicated for “passive open space purposes” and lot 52 (again the current plan reference) has been dedicated principally for “active open space” (and to a lesser extent, passive open space) and that the pathway required to be provided by condition C11 and/or Condition C35 has been dedicated for “passive open space”.

39. Finally, Mr Meineke expresses the opinion that obligations imposed upon the developer by various nominated conditions of the Development Consent relevantly involve “embellishment works of the open space lands”.

40. Thus, according to Mr Meineke’s opinion, conditions C35, C40, C46, C59 relevantly impose obligations for the embellishment of passive open space and condition C40 relevantly imposes obligations for the embellishment of active open space.

41. In total Mr Meineke identifies the following works to be relevantly “embellishment works of active and passive open space” and he attributes to each work the cost thereof as estimated by Mr Cottrell:

Item of Work	Estimated Cost of Work
Filling to Lot 52 and the pathway	77,000
Tennis Court	34,100
Half size basketball court	17,600
Pavilion	8,250
BBQ and brick support structure	1,650
Children’s playground	5,500
Landscaping rehabilitation to parks	7,100
Street tree planting Stage 1	42,700
Street tree planting Stage 2	44,000
Walkway to beach	35,200
TOTAL	$273,100

42. Mr Cottrell’s affidavit provides the details of his estimates of the costs of carrying out the works listed by Mr Meineke as embellishment works and adopted by the latter.

43. Mr White’s affidavit contains his valuations of the three lots (lots 50, 51 and 52) and the pathway leading to the beach dedicated as required by Condition C11 of the Development Consent as follows:
(i.) lot 50 $65,000
(ii.) lot 51 $30,000
(iii.) lot 52 $160,000
(iv.) the pathway leading to the beach $40,000

44. Mr White’s valuation of Lot 52 reflects a rate per m2 of $90 and his valuations of lots 51 and 52 each reflect a rate per m2 of $10.60 and his valuation of the pathway reflects a rate per m2 of $10.

45. These rates per m2 reflect Mr White’s opinion that the value of lands within the Scientific Zone (Zone 7(j)) designated by the Byron Local Environmental Plan (the LEP) would be approximately 10 per cent the value of land within the Residential 2(a) Zone designated by the LEP.

46. Mr White notes that lots 50 and 51 are located within the Scientific Zone and lot 52 is located in the Residential 2(a) Zone and the pathway is located in a mixture of zones—Residential 2(a), Scientific 7(j), Habitat 7(k) and Urban Coastal Lands 7(f).

47. Mr White’s aforesaid valuations were current values but he confirmed in oral testimony that his adopted values would also be relevant as at two further dates—namely March 1996 when the Development Consent was granted and October 1999 when the Subdivision Plan of the approved development was registered.

48. The Council adduced affidavit evidence of Mr Montgomery, its “Section 94 and Tree Preservation Officer”. I have already referred to Mr Montgomery’s evidence seeking to explain why the Schedule of Contributions attached to Condition C30 applied the required contribution for “active open space acquisition” to 21 lots rather than the 82 additional lots created by the approved subdivision.

49. According to Mr Montgomery’s evidence, there were in force at the date when the Development Consent was granted two further s 94 Contributions Plans (ie additional to the Plans relating to “Open Space” and “Community Facilities”), namely a Plan relating to “Bikeways” and a Plan relating to “Street Tree Planting”.

50. Mr Montgomery expresses a number of opinions on the intent and the effect of Condition C30 which I shall refer to in more detail later in these reasons. Whereas there is little difference between the opinions of Mr Montgomery and Mr Meineke on the requirements for open space land dedication in terms of the Council’s s 94 Contributions Plan—Open Space their opinions significantly diverge on the question of what works qualify as “open space embellishment works”.

C. THE DISPUTED MEANING OF CONDITION C30 OF THE DEVELOPMENT CONSENT

51. The dispute arises entirely from the Contents of the “Note” appearing at the end of the Schedule of Contributions attached to Condition C30.

52. But for the existence and effect of the “Note” it is common ground that the Schedule of Contributions would require payment of a total amount of $298,080 (plus adjustments for relevant Consumer Price Index increases, which adjustments are not relevant in these proceedings).

53. The Council does not submit that the “Note” is simply to be ignored. Rather it submits that on a proper construction, its true meaning is as follows:
(i.) the requirement to reduce the contribution by “the value of land dedicated for active and passive open space” does not apply to lands that have been dedicated pursuant to Condition C11 of the Development Consent which required “dedication at no cost to Council” (as occurred in the present case upon registration in October 1999 of Deposited Plan 1006418);
(ii.) in the alternative, any reduction in contribution should be limited to the value of the quantum of dedicated land that exceeded the maximum quantum of land required to be dedicated under the Council’s S 94 Contributions Plan—Open Space;
(iii.) the requirement to reduce the contribution by “the cost of active and passive open space embellishment work” does not apply to expenditure unless it:-
(a) relates to “embellishment work” that is identified as such in the s 94 Contributions Plan—Open Space and is agreed to by the Council as “Works in Kind”, within the meaning of that Plan; and
(b) is not otherwise required to be undertaken by virtue of conditions of the Development Consent (other than Condition C30).

54. The Applicant’s competing submissions may be summarised as follows:
(i.) the true meaning of the Note to the Schedule of Contributions is that it requires the total amount of contributions specified in the Schedule to be reduced by a number of factors, including the following which are relevant to the present case:
(a) the value of any land dedicated for active a and passive open space; and
(b) the cost of any active and passive open space embellishment work.
(ii) the Council’s primary submission that the Note does not apply to the value of land that is dedicated pursuant to Condition C11 “at no cost to Council” would involve a confession of an excess of the power conferred by s 94 of the EP&A Act and should on that account, be rejected, in favour of a construction which harmonises the effect of conditions C11 and C30 as conditions operating within the limits of the power conferred by s 94;
(iii) the Council’s alternative submission reads important restrictive words into the text of the Note without any justification; and
(iv) the Council’s submission that the reduction from the required contributions of “the cost of active and passive open space embellishment work” is only allowed if the Council has agreed to the embellishment work as a “work in kind” involves an “impermissible” gloss on the text of the Note.

D. THE PROPER CONSTRUCTION OF CONDITION C30

55. It is important to emphasise at the outset that the sole issue presented by the parties for adjudication is the question of the proper construction of Condition C30. Importantly, there is no claim made by either party seeking rectification of the condition, and as I have earlier noted, the Applicant has abandoned its claim that the condition is invalid and severable from the Development Consent. Accordingly, the sole question is what is the scope and content of the obligation imposed upon the developer by Condition C30. In this respect, as earlier noted, no difficulty arises from the terms of Condition C30 or from the terms of the Schedule of Contributions. The sole difficulty is that posed by the content of the ‘Note” appearing at the end of the Schedule.

56. The principal difficulty posed by the content of the Note concerns its reference to “land dedicated for active and passive open space”. What precisely is being referred to here? Is it a reference to all of the land that has been dedicated as required by condition C11 (as contended for by the Applicant) or is it a reference to land that has been dedicated otherwise than as required by Condition C11 (as is principally contended for by the Council)?

57. As a matter of ordinary construction, each of these possibilities lays some initial claim to acceptance, but upon analysis, each solution also presents some difficulty.

58. Take first the Applicant’s contention where the problem can be exposed by asking the following question: Why is the reference in the Note to “land dedicated for active and passive open space” to be taken to include land dedicated as required by Condition C11 when (i) there is nothing in that condition that in terms speaks of “active and passive open space”; (ii) where the condition requires dedication “at no cost to Council”; and (iii) there is no apparent nexus or connection between the separate obligations created by Conditions C11 and C30?

59. Yet a further difficulty with the Applicant’s contention is why should there be a reduction in the required contribution on account of land dedicated for active and passive open space in circumstances where (i) no contribution is imposed in respect of passive open space acquisition; and (ii) there is only a partial contribution imposed in respect of active open space acquisition (namely that based upon 21 lots instead of the additional 82 lots created by the approved subdivision when it is by reference to those 82 lots that all other contributions are imposed by Condition C30, (as are the “water, bulk water and sewer” levies pursuant to the Water Supply Authorities Act 1987 as required by Condition C29of the Development Consent?)

60. The Applicant’s answer to these apparent difficulties proceeds along the following lines.

61. Condition C30 imposes requirements for monetary contributions conformably to s 94 of the EP&A Act. That section provides the exclusive power for conditions to be imposed upon a development consent requiring “(a) the dedication of land free of cost or (b) the payment of a monetary contribution or (c) or both”, subject to a number of specific limitations, namely:
(i.) the condition must only require a reasonable dedication or contribution for “the provision, extension or augmentation of the public amenities and public services”: subsection (2); and
(ii.) the condition must be “of a kind allowed by, and determined in accordance with a contributions plan approved under s 94AB”: subsection (7).

62. Not only was condition C30 a condition “authorised by s 94” within the meaning of the EP&A Act, s 91(3)(h) (since repealed and re-enacted in the current EP&A Act as s 80A(l)(h)) but so was condition C11, requiring the dedication of the specified lots as “public reserves for recreation at no cost to Council”.

63. Once it is appreciated that both Conditions C30 and C11 are conditions authorised to be imposed by s 94, then not only is each condition required to satisfy the two aforesaid limitations on the s 94 power, but the operation and effect of the two conditions can be readily harmonised. In particular, that harmonisation readily justifies reading the reference to “land dedicated for active and passive open space” in the Note to the Contributions Schedule attached to Condition C30 as including the lands required to be dedicated by Condition C11 because both conditions are concerned with s 94 contributions.

64. Notwithstanding the attractiveness of this argument, there remains this fundamental difficulty—why should there be allowed a reduction in the required contribution on account of the value of land dedicated for active and passive open space when the required contribution does not itself require any contribution in respect of passive open space acquisition and requires only 25 per cent of the permissible maximum contribution for active open space acquisition?

65. The Applicant’s answer not only fails to deal with this serious anomaly, but itself proffers a solution which on its face is not consistent with the Applicant’s suggested operation of s 94 or the Council’s s 94 Contributions Plan—Open Space.

66. Moreover, given the very narrow context of the present proceedings raising only the question of the proper construction of Condition C30, there is obvious difficulty standing in the way of accepting the Applicant’s argument that Condition C11 should itself be regarded as a condition entirely dependent upon the power conferred by the EP&A Act, s 94. In the first place, unlike Condition C30, the Condition is not itself expressed to be a s 94 condition. Secondly, there is no obvious nexus between the conditions. The Applicant argues that as a matter of legal power, condition C11 must be read as if it were a condition authorised solely by s 94.

67. Whereas long standing decisions of this Court (eg Fitch v Shoalhaven City Council (1987) 67 LGRA 165 per Stein J) have held that s 94 provides “the exclusive source of power for contributions or dedications for public amenities” in the sense that a consent authority cannot avoid the express limitations on the s 94 power by seeking to impose the same type of condition pursuant to its general power to impose conditions, it is very important to appreciate that s 94 is premised upon the fact that it is the consent authority that probably must bear the impact of increased demand for public amenities and public services generated by the approved development.

68. However, where in the case of a development like the present, creating a sizeable residential subdivisional estate, it is the developer who conventionally under planning law and practice, must bear responsibility for the provision, extension or augmentation of many public amenities and services. For example, in the present case, the developer must build the subdivision roads to the standard required by the Council and then dedicate them: vide Condition C12(a). Likewise, the developer must extend into the residential estate the existing Council sewerage and water mains: vide Condition C15. Likewise, the developer is required to construct traffic devices pursuant to Conditions C33 and C39.

69. In a real sense, all these obligations involve the provision of “public amenities or services”. However, the conditions imposing them are not on that account simply to be supposed to be conditions emanating from s 94 for the reason that the obligations are wholly imposed upon the developer as integral and essential features of the approved development. For that very reason they are not public amenities and services within the purview of the s 94 regime because the consent authority itself is not required to provide them. It follows that the Applicant’s argument that as a matter of power, these identified conditions must be held to emanate from s 94 must be rejected.

70. However, having clarified the proper limits of the principle enunciated in Fitch, there is, it must be conceded, greater difficulty in determining as a matter of construction, whether or not Condition C11 is relevantly a condition that emanates from s 94.

71. However, having regard to the Council’s own evidence and its arguments advanced on the hearing, I think that it is both fair and legitimate to regard Condition C11 as having been intended to impose a condition for dedication for open space purposes of the relevant lots free of cost, conformably to s 94.

72. In particular, Mr Montgomery specifically acknowledges in par 9 of his affidavit that the dedication of lots 50 and 51, having a combined area of 9774 m2 far more than satisfied the passive open space requirements of 2,977 m2 contained in the Council’s s 94 Contributions Plan—Open Space. It is also to be noted that whereas Mr Montgomery for whatever reason did not bring into his account of lands dedicated for open space (passive or active) the land comprising the pathway to the beach, the Council, in its final address acknowledged that this land contributed an additional area of 3,731 m2 dedicated passive open space, with the Council conceding that an area of 10,528 m2 had been dedicated in excess of the area of a passive open space that was required by the Council’s s 94 Contributions Plan—Open Space.

73. This result is to be contrasted with the area of land dedicated for active open space which involved a deficit of 2,211 m2 in the area of active open space required by the Council’s s 94 Contributions Plan—Open Space.

74. Turning for the moment to the Council’s primary argument that the Note to the Schedule of Contributions simply did not apply in respect of land that had been dedicated for active and passive open space as required by Condition C11 because that condition had required dedication “at no cost to Council”, the Applicant’s argument that such an outcome would significantly transgress the limitations on the s 94 power, provides, I think, a cogent rebuttal of the Council’s contention, particularly in the light of the Council’s case that freely conceded an overall excess in the dedication of lands for open space (active and passive) of 8,317 m2 (representing an excess area of passive open space of 10,528m2 and a deficit area of active open space of 2,211 m2).

75. However, the Council’s alternative argument does, I think, present an attractive solution having all the hallmarks of fairness of ultimate contributions impost, and consistency with the limitations on the s 94 power and with the Council’s s 94 Contributions Plan—Open Space. That alternative argument, it is to be recalled, is that the reference in the Note to the Schedule of Contributions to “land dedicated for active and passive open space” is intended to refer only to so much of such land that is dedicated in excess of the maximum requirements that may be imposed consistently with the express limitations on the s 94 power. As a matter of mathematical calculation, this means applying to the excess area of 8,317 m2 the value of that land by applying thereto the rates per m2 adopted by Mr White in his valuations of the lands dedicated for passive open space ($10.60) and the dedicated pathway lands ($10) resulting in a total value of $85,930 made up as follows:

Area	Value
(i) 4586 m2 @ $10.60	$48,620
(ii) 3731 m2 @ $10.00	$37,310
TOTAL AREA 8,317 m2	TOTAL VALUE $85,930

76. Subject to a necessary adjustment to the calculation of the value of excess land dedicated as active and passive open space, I think that the Council’s alternative contention proffers an available solution by way of construction of the Note to the Schedule of Contributions, which operates with even-handed fairness to both parties.

77. The adjustment to the calculation that I consider to be necessary is that which recognises the following facts:
(i.) there is an excess in area of 10,528 m2 of land dedicated for passive open space; and

(ii.) there is no deficit in the area of land dedicated for active open space because the Schedule of Contributions includes a component for “active open space acquisition” (which component was, according to the unchallenged evidence of Mr Montgomery, included in the required contributions to make good the deficit of 2211 m2 in the area required to be dedicated).

78. Accordingly, instead of the Council’s calculation earlier recited, the appropriate calculation that determines the reduction in the contributions, by virtue of the value of excess lands dedicated for active and passive open space, is to apply to the excess area of 10,528 m2 for passive open space the rate of $10.60 per m2 that was ascribed by Mr White in his valuation of lots 50 and 51, resulting in an amount of $111,597. This amount represents the relevant reduction in contributions.

79. My reasons for adopting the Council’s alternative construction of the Note to the Schedule of Contributions can now be stated as follows:
(i.) As a matter of construction, the phrase appearing in the Note “pursuant to Section 94 of the Environmental Planning and Assessment Act 1979” means, in context, that the ultimate impost by way of s 94 conditions (namely conditions C11 and C30) must be “reasonable” (s 94(2)(b)) and must be “of a kind allowed by and determined in accordance with” the Council’s s 94 Contributions Plan—Open Space. That Plan not only prescribes the maximum rates of open space contributions (expressed in terms of (i) required land dedication; and (ii) monetary contributions for (a) land acquisition and (b) embellishment of open space) but also contains express provision for offsetting the value of land dedication against required monetary contributions. It is these particular features of the Contributions Plan, read in the light of the limitations imposed upon the s 94 power, which are given effect to by the total operation of the Schedule of Contributions and the Note thereto;
(ii.) the reference in the Note to “land dedicated for active and passive open space” is a reference only to such land which has been dedicated in excess of the requirements for dedication contained in the Council’s s 94 Contributions Plan;
(iii.) such an interpretation is justified and supported having regard to the following features of the content of the contributions specified in the Schedule:-
(a) no contribution was imposed for passive open space acquisition presumably because of the existence of Condition C11 which was known by the parties to have imposed requirements for dedication of lands for passive open space far in excess of the area required to be dedicated by the Council’s s 94 Contributions Plan; and
(b) only a partial contribution was imposed for active open space acquisition presumably because of the existence of Condition C11 which was known by the parties to have imposed requirements for the determination of lands for active open space containing an area less than the area required by the Council’s s 94 Contributions Plan); and
(iv) the adopted interpretation of the Note is one that plainly harmonises the operation and effect of Conditions C30 and C11 (as conditions emanating from s 94) and produces overall fairness to both parties in terms of the ultimate contributions impost imposed by s 94 whereas the competing constructions advanced both by the Applicant and by the Council in its primary submission, manifestly fail to provide any harmonisation in the operation and effect of Conditions C30 and C11 and also manifestly fail to achieve a fair and reasonable result, inasmuch as the construction contended for by the Applicant would give the Applicant the unmerited boon of avoiding altogether any requirement for contributions for open space (active and passive) acquisition, and the Council’s primary argument would likewise give the Council the unmerited boon of acquiring gratis an area of 10,528 m2 dedicated as passive open space in excess of the maximum requirement allowed for under its s 94 Contributions Plan—Open Space.

80. For all the foregoing reasons, I hold that the reduction in contributions on account of “the value of land dedicated for active and passive open space” as I have interpreted that expression is $111,597.

81. The remaining dispute concerns that part of the Note that allows a reduction in contributions on account of “the cost of active and passive open space embellishment work”. Although I think that the dispute is principally confined to the application of that particular expression rather than in its true meaning, I need to firstly determine that meaning.

82. Before doing so I should note that it is common ground that only two of the debated “embellishment works” (as itemised in Mr Meineke’s affidavit) have in fact been carried out, namely (i) landscape rehabilitation to the value of $7,100; and (ii) street tree planting to the value of $42,700.

83. Since I do not understand the Applicant to dispute the Council’s contention that the relevant allowable reduction in contributions is in respect of “the costs of embellishment works”, and accordingly the works must be first carried out in order that relevant costs be incurred, this aspect of the Applicant’s claim to declaratory relief is (unlike the other aspect of its claim concerning the reduction in contributions on account of the value of lands dedicated for open space) simply to have clarified at the present time the nature of the Applicant’s necessarily future and contingent entitlements to reductions in the contributions it is required to pay pursuant to Condition C30, in the event it carries out those works.

84. The question of construction that is raised is simply what is meant by “active and passive open space embellishment work” appearing in the Note to the Schedule of Contributions.

85. This question is much more simply answered than the other question of construction raised in the proceedings. Although “embellishment” is an ordinary English word, it has long been used in the context of a Council’s powers and responsibilities in respect of “public reserves”. Thus, the Local Government Act 1919, s 349 provided:

The Council may improve and embellish public reserves which are under its care, control and management.

86. The contributions imposed by the Schedule of Contributions reflect the maximum requirements for embellishment provided for in the Council’s s 94 Contributions Plan—Open Space.

87. The clear intent and purpose of the Note allowing a reduction in contributions on account of “the cost of active and passive open space embellishment work” is to provide the developer with the choice of either paying the requisite monetary contributions or undertaking “works in kind” (in part or total satisfaction of the relevant contribution). Such an entitlement is expressly provided for in the Council’s s 94 Contributions Plan provided that the works satisfy the following requirement stated on p 5 of the Council’s Plan:

Those works must be included in a schedule of facilities in the Plan…. ”

88. An example of such an identification of works is provided in Appendix 6 to the Plan which contains under the heading “Approximate Costing Local Neighbourhood Play Space” the following items:

Play Equipment:-

Main Structure

$8,000

Swing Sets

Infants

School Aged

$2,500

$1,200

Edging

$600

Impact Absorbing Material

$2,000

Landscaping:-

Pathways

$2,000

Seating

$1,000

Plantings

$1,000

Earthworks

$1,000

Concrete Surfacing

$1,000

Plumbing Etc.

$500

Fencing

$700

Labour

$2,000

Survey Investigation & Design

$1,500

Total

$25,000

89. Accordingly, and for the moment confining attention to Condition C30 in isolation from other conditions of the development consent, the proper construction of the relevant expression contained in the Note to the Schedule of Contributions is one that reflects the relevant content of the Council’s s 94 Contributions Plan—Open Space, namely

works embellishing active or passive open space (in the sense of improving and enhancing that open space), being works that are identified as embellishment works in the Contributions Plan.

90. However, there remains the possibility that this interpretive result may require some revision or modification in the light of other conditions of the Development Consent imposing obligations upon the developer to undertake particular works on the lands dedicated for open space purposes.

91. A good example is provided by Condition C40 requiring the developer to construct at his own cost on the lot (dedicated for active open space) the following facilities:
· tennis court and pavilion
· children’s’ playground
· half size basket ball court
· barbecue facilities

92. Mr Montgomery stated that when these works were constructed, the Council would allow a credit against the s 94 contribution for the cost of such works. He so concluded, notwithstanding the obligation cast upon the developer by Condition C40 to construct such works “at his own cost” reasoning in par 40 of his affidavit “that it would be unreasonable to interpret Conditions C30 and C40 so as to require the applicant to both provide for the relevant open space embellishment and thereafter pay the contribution for the same purpose”.

93. This eminently fair reasoning process strikes me as providing a just solution to any conflict that might otherwise be thought to arise between the operation of Condition C30 including the Note to the Schedule of Contributions and other Conditions of the Development Consent that impose obligations on the developer to provide facilities on the open space lands.

94. In my opinion, having regard to the Council’s s 94 Contributions Plan—Open Space and to the limitations on the s 94 power, the proper construction of Condition C30 and the Note to the Schedule of Contributions, is that the imposition of the monetary contributions for embellishment of open space is to be reduced by the cost of “open space embellishment works” whether or not they are the subject of any separate obligation imposed by any other conditions (including any conditions requiring such works to be undertaken “at the developers cost” or “without cost to the council”).

95. Having adopted this interpretation of the Note to the Schedule of Contributions attached to Condition C30, it remains for me to apply it to the various items of works in dispute by deciding whether such works are relevantly “embellishment works”, being such works that are relevantly identified in the Council’s s 94 Contributions Plan—Open Space.

96. The disputed works are the following works as itemised in Mr Meineke’s affidavit:
(i.) filling lot 52 and the pathway
(ii.) landscaping rehabilitation to parks
(iii.) street tree planting—Stage 1
(iv.) street tree planting—Stage 2
(v.) walkway to beach

97. In my judgment, the following works do not qualify as relevant “active and passive open space embellishment works” as I have interpreted that expression in its context—
(i.) filling of lot 52 and the pathway;
(ii.) street tree planting Stage 1;
(iii.) street tree planting Stage 2

98. In so concluding, I prefer Mr Montgomery’s opinions to the competing opinions of Mr Meineke in respect of these items.

99. In particular, I also accept the Council’s submission that filling of the land as required by Condition C55 applied to the lands to be dedicated for active open space and the beach pathway.

100. Moreover, I accept the Council’s argument that the filling required by Condition C55 was in the nature of an essential pre-condition to bring the development site into a developable state. As such, the works were not in the nature of “embellishment works” but were in the nature of “pre-development works” (the two types of works being very different in kind).

101. It is also to be noted that “filling” of the land as required by Condition C55 is not relevantly identified by the Council’s s 94 Contributions Plan—Open Space as an “embellishment” work.

102. The claim for street tree planting is not, in my opinion, even remotely an “open space embellishment work” because it is simply not located on the relevant open space lands.

103. I do, however, consider the other works in dispute, namely landscaping rehabilitation to the dedicated lands for passive open space and (ii) the boardwalk to be erected on the beach pathway qualify as “active and passive open space embellishment works” as I have interpreted that expression. In so concluding, I here prefer Mr Meineke’s opinions to the competing opinions of Mr Montgomery.

104. For all the foregoing reasons, I hold that in the future event of the developer carrying out the following works the Note to the Schedule of Contributions to Condition C20 would allow for the reduction in the required contributions in respect of the cost of carrying out these works relevantly being “active and passive open space embellishment works”:
(i.) tennis court
(ii.) half size basket ball court
(iii.) pavilion
(iv.) barbecue
(v.) children’s’ playground
(vi.) landscaping rehabilitation to parks; and
(vii.) boardwalk erected on pathway to beach.

E. CONCLUSIONS AND ORDERS

105. For all the foregoing reasons, I hold that the contributions required by condition C30 to be paid by the developer are reduced by the sum of $111,597 in respect of the value of land dedicated for active and passive open space, and in the event of the developer carrying out the works listed in the preceding paragraph, the said contributions are to be further reduced by the cost of undertaking those works.

106. The Applicant is invited to bring in draft short minutes within 21 days to give effect to my adjudications on the matters in dispute.

107. The question of costs is reserved.

108. Exhibits (other than Exhibit B) may be returned.