Meriton Apartments Pty Ltd v Hornsby Shire Council

[2005] NSWLEC 736

Land and Environment Court

of New South Wales

CITATION:

Meriton Apartments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 736

PARTIES:

APPLICANT
Meriton Apartments Pty Ltd

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10456 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Section 94 contributions - traffic and road works - appeal against conditions - consolidation of prior section 96 amendments into a single document

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

05/12/2005

EX TEMPORE JUDGMENT DATE:

12/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
Instructed by: Ms M Peatman, solicitor
Of: Hunt & Hunt

RESPONDENT
Mr C McEwen, SC
Instructed by: Mr I Woodward, solicitor
Of: Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

5 December 2005

10456 of 2005 Meriton Apartments Pty Ltd v Hornsby Shire Council

JUDGMENT

1 This was appeal No. 10456/2005 between Meriton Apartments Pty Limited and Hornsby Shire Council in regard to conditions of consent for a mixed use development at 90 George Street, Hornsby. The consent had been issued on 6 October 2004 and the applicant had appealed Conditions 172, 173 and 174 in respect of s 94 contributions.

2 There were also conditions appealed against in regard to traffic matters, however, those matters have been withdrawn so no modification is required to those conditions, only to the three s 94 contribution conditions.

3 Since the lodgement of the appeal, Mr Chris Hallam was appointed as a Court-appointed expert to investigate the traffic engineering matters. On town planning matters Mr Peter Price was appointed for the applicant and Ms Vanessa Laybutt for the council. They had conferenced and made recommendations to the parties. The parties have subsequently reached agreement on the outstanding matters.

4 As a result, before me today are consent orders, signed by Mr Woodward and Ms Peatman, with new Conditions 172, 173 and 174, including handwritten annotations that have been counter-signed by the parties.

5 Having heard the submissions, I do not believe there is any further need to investigate the matters. They do not need to be advertised for public comment. Included in the consent orders is a full copy of the consent, plus annexed to it there are several s 96 amendments previously approved by the council. The parties have asked the Court if it would reissue the consent in toto with all the amendments.

6 I see no problem in doing this, provided the parties forward to the Court an electronic copy of the compilation that both have checked within 7 days hereof, before I check it myself, so that the minimum administrative work is required.

7 Therefore the Court orders by consent of the parties that:

1. The Appeal is upheld.

2. Development Consent No. 620/04 is granted for the erection of mixed use development containing 195 residential apartments, 8 retail units, 45 commercial units and a childcare centre with carparking and communal recreational areas and strata subdivision, subject to the conditions in Annexure “A” of the annotated Consent Orders tendered at the hearing except that conditions 172, 173 and 174 in the Annexure are deleted and the following conditions are substituted for them:

“172. The payment of a contribution towards the costs of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, civic improvements, stormwater drainage, bushfire protection and Section 94 administration in accordance with Section 94, 94B and 94C of the Environmental Planning and Assessment Act 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution for the residential component shall be $1,162,741.05 if paid prior to 30 June 2006 for the dwelling component it being noted that there are 195 multi-unit dwellings. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years.

This amount is to be paid to Council prior to issue of the construction certificate or the subdivision certificate, whichever occurs first.
The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to 30 June, 2006.


Note: A copy of Council’s Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No.296 Pacific Highway, Hornsby.

173. The payment of a contribution towards the cost of transport and traffic management, library and community facilities, civic improvements, stormwater drainage, bushfire protection and Section 94 administration in accordance with Section 94,94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution shall be $316,896.07 if paid prior to 30 June, 2006 for the commercial component it being noted that there are 5,171.2m2 of commercial floor area. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years. This amount is to be paid to Council prior to issue of the construction certificate or occupation of the premises whichever occurs first.

The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to 30 June, 2006.

Note: A copy of Council’s Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No.296 Pacific Highway, Hornsby.

174. The payment of a contribution towards the costs of transport and traffic management, library and community facilities, civic improvements, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections94, 94B and 94C of the Environmental Planning and Assessment Act 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution shall be $20,362.88 if paid prior to 30 June, 2006 for the retail component it being noted that there are 677.5m2 of gross leasable retail floor area. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years. This amount is to be paid to Council prior to the issue of the construction certificate or occupation of the premises, whichever occurs first.

The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to 30 June 2006.

Note: A copy of Council’s Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No.296 Pacific Highway, Hornsby.”


3. A consolidated set of conditions is attached in Annexure “B” hereto including amendments previously approved by the council dated:

8 November 2004
20 December 2004
31 January 2005
23 May 2005
31 May 2005
17 November 2005

4. No Order as to costs.

_________________
K G Hoffman
Commissioner of the Court
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