Merrin Developments Pty Ltd v Pittwater Council

[2016] NSWLEC 1080

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Merrin Developments Pty Ltd v Pittwater Council [2016] NSWLEC 1080
Hearing dates:	17,18 February 2016, conditions 25 February 2016
Date of orders:	09 March 2016
Decision date:	09 March 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA No 350/14 for the subdivision of land at 53, 53a & 53b Warriewood Road, Warriewood in two stages is approved subject to the conditions of consent in Annexure A. 3. The exhibits are returned with the exception of exhibits A, C and D.
Catchwords:	DEVELIOPMENT APPLICATION: staged subdivision – what infrastructure should be provided for the Stage 1 and Stage 2 – whether a s94 contribution can be imposed on existing dwellings
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 2014
Cases Cited:	Newbury District Council v Secretary of State for the Environment [1981] AC 578
Category:	Principal judgment
Parties:	Merrin Developments Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	Counsel: Mr C Leggat SC (Applicant) Mr S Nash, barrister (Respondent)   Solicitors: Swaab Lawyers (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	10871 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal relates to the refusal of DA No 350/14 by Pittwater Council for the subdivision of land at 53, 53a & 53b Warriewood Road, Warriewood (the site) in two stages.

The site

2. The three lots are:

• No. 53 Warriewood Road is Lot 3 in DP 942319. It is a narrow strip of land approximately 2 m wide and formerly owned by Pittwater Council, which runs from Warriewood Road between 53b & 53c Warriewood Road to Narrabeen Creek.

• No 53a Warriewood Road is Lot 3 in DP 1115877 and has an area of 6838 sq m. It has a frontage of 32.77 m to Warriewood Road, side boundaries of 216.63 sq m and 247.79 sq m and an area of 6838 sq m. Narrabeen Creek forms the rear boundary to the lot. A dwelling, swimming pool and a number of sheds are located on the lot.

• No 53b Warriewood Road is Lot 2 in DP 1115877 and has an area of 9251 sq m. It has a frontage of 46.555 m to Warriewood Road and side boundaries of 216.63 sq m and 177.14 sq m. Narrabeen Creek forms the rear boundary to the lot. A dwelling and a number of sheds are located on the lot.

The locality

3. The land south west of Warriewood Road (including the site) is former agricultural and horticultural land which is now being redeveloped for medium density housing under the Warriewood Valley Urban Release Area. Across Warriewood Road is the older established development in Warriewood, consisting of single detached dwellings on large blocks of land. This area was subdivided and built upon in the 1960s-70s and slopes up in a north easterly direction before reaching the top of the hill between Bertana Crescent and Elimatta Road.

The proposal

4. Stage 1 is a three lot subdivision of Lots 2 and 3 to create new Lots 111, 112 and 113 (see plan below). Lots 111 and 112 front Warriewood Road with Lot 111 having an area of 1722 sq m and Lot 112 having an area of 1403 sq m. It is intended that the existing dwellings and some other associated improvements currently on these lots will remain on the new lots. New Lot 113 is a residual lot with no development proposed as part of Stage 1. Any existing improvements on Lot 113 after the subdivision will be removed. Lot 113 has an area of 10,466 sq m. It is intended that this lot will be subdivided in Stage 2. All subdivision will be Torrens Title subdivision.

5. Stage 2 is a subdivision of Lot 113 into 12 lots. Of these, 10 lots, being Lots 101-110 are located on the north-eastern boundary with a recent subdivision (Ibis Estate) and are between 172 sq m – 214 sq m in area (see plan below). It is intended that these lots will contain one dwelling each although the approval of dwellings is not part of this application. Lot 211 is located on the south eastern boundary corner of the site and has an area of 273.6 sq m. Lot 212 has an area of 6679 sq m and is described as the riparian area adjoining Narrabeen Creek. Lot 213 is a residual containing land between Lorikeet Grove and the rear of the lots fronting Warriewood Road and also land to the south west of Lorikeet Grove containing OSD and landscaping areas in the Narrabeen Creek buffer zone.

6. Stage 2 also proposes an extension to Lorikeet Grove, to be dedicated to council, and two (2) new private roads. New Road 1 runs through the centre of the site ending in a cul-de-sac and is intended to serve Lots 101-110 and the northern side of future development on Lot 213. New Private Road 2 is another cul-de-sac and incorporates 53 Warriewood Road. It is intended to serve future development on the south-eastern side of Lot 213 and will join up with the recently approved private road on the north-eastern side of 53C Warriewood Road (N0330/14). Both private roads will remain as part of Lot 213 with rights of carriageway proposed over New Road 1 for Lots 101-110.

7. Works including provision of stormwater infrastructure in 53 Warriewood Road are intended to be carried out under Stage 2.

The contentions

8. The council maintains that approval should not be granted to the subdivision because of:

• inadequate drainage for Stage 1,

• whether the proposed lot sizes will achieve an appropriate character for the area,

• the uncertain titling arrangements for Stage 2,

• potential flooding of Lot 213, and

• whether the future subdivision will satisfy the required development yield for the site.

9. The parties filed opposing conditions of consent that reflected their position on the areas in dispute as well as other specific conditions.

Relevant planning controls

10. The site is within Zone R3 Medium Density Residential under Pittwater Local Environmental Plan 2014 (LEP 2014). Clause 2.3(2) provides that the “consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

11. Clause 6.1 provides specific requirements for the Warriewood Valley Release Area. Clause 6.1(3) relevantly states that:

Development consent must not be granted for development on land in a buffer area or sector or at an address mentioned in Column 1 of the table to this clause unless the consent authority is satisfied that the total number of dwellings shown opposite that buffer area, sector or address in Column 2 of that table will be erected.

Column 1	Column 2
Buffer area, sector or address	Number of dwellings to be erected
Buffer area 1b	Not more than 24 dwellings or less than 17 dwellings
Buffer area 1c	Not more than 18 dwellings or less than 13 dwellings
Buffer area 1d	Not more than 1 dwelling

12. Buffer area 1b is 53b Warriewood Road, Buffer area 1c is 53b Warriewood Road and Buffer area 1d is 53 Warriewood Road. Based on cl 6.1(3), the site must obtain not more than 43 dwellings and not less than 30 dwellings.

13. Clause 6.1(4) states:

(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the proposed development will not have any significant adverse impact on any of the following:

(a) opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors,

(b) the water quality and flows within creek line corridors,

(c) the stability of the bed, shore, and banks of any watercourse within creek line corridors.

14. Clause 7.2 provides requirements for Earthworks, cl 7.4 provides requirements for Floodplain risk management and cl 7.10 provides requirements for Essential services.

15. Pittwater 21 Development Control Plan – Appendix 8 – Flood Plain Risk Management Policy for Development in Pittwater (the Flood Policy), Warriewood Valley Section 94 Contributions Plan - Plan No 15 - Amendment 16 – Revision 1 (the s 94 Plan), Warriewood Valley Urban Release Area Water Management Specification (the Water Management Specification) and Pittwater 21 Development Control Plan 2014 (the DCP) apply.

Drainage for Stage 1

The evidence

16. Ms Louise Collier, an engineer, provided evidence for the council and Mr Sam Haddad, also an engineer, provided evidence for the applicant. Ms Collier states that stormwater infrastructure is required to support the subdivision of Lots 111, 112 and 113. Section C6.21 of the DCP states:

Infrastructure and facilities are to be provided directly as part of the development process prior to the occupation of the development.

17. At present, 53 Warriewood Road includes a 600 mm diameter stormwater pipe that services the upper catchment (including existing development outside of the land release). Ms Collier states that it would make sense to use this land to also service the stormwater infrastructure needs for Lots 111 and 112. She identifies two options for dealing with stormwater for Lots 111 and 112. Option 1 is to provide a duplicate system within the strip of land and create a stormwater easement and Option 2 is to replace the existing 600 mm pipe with a new pipe of suitable capacity to service both the upstream catchment and the newly created lots within the site.

18. Ms Collier states that having concurrent stormwater infrastructure (duplicated or replaced) and an easement (ideally graded so that it can be used for any future subdivision of Lot 113 to convey overland flow from the upper catchment) reduces risks of overland flooding for events greater than the pipe design (a 20 year ARI event). If a stormwater pipe for the full length of 53 Warriewood Road is not provided as part of the Stage 1 development, then an easement within Lot 113 that runs the full length of the lot to the creek containing a suitably sized stormwater pipe all the way to the creek will need to be provided to service the new Lots 111 and 112.

19. It would also be reasonable to expect that appropriate inter-allotment drainage, on-site detention (OSD) and Water Sensitive Urban Design (WSUD) facilities will be provided for the newly created lots in preparation for Stage 2 development especially ones with existing habitable dwellings on those new lots, from which flow would otherwise occur uncontrolled.

20. Consequently, Ms Collier states that in addition to the provision of stormwater drainage; OSD and WSUD features are required to service the existing dwellings on Lot 111 and 112. Other facilities would need to be retrofitted such as rainwater tanks and equivalent re-use (eg laundry and toilets) be plumbed into the dwellings to that proposed for the Stage 2 allotments to make them equivalent to the standard for all dwellings within the wider land release, in accordance with the Water Management Specification.

21. As it may be some time before the Stage 2 subdivision occurs and it is uncommon in the experience of Ms Collier to defer mandatory infrastructure, even without the presence of a dwelling. Without infrastructure, this means that the dwellings and development present are contributing excess water and stormwater pollution until such time as Stage 2 of the development commences.

22. Mr Haddad offers a different approach. He states that the construction of a stormwater pipe for the full length of 53 Warriewood Road and the creation and an easement, is intended for Stage 2 of the development and is unnecessary at Stage 1. While he states in his evidence that an easement will be provided to service Stage 1, this approach was amended during the hearing to retain the existing stormwater disposal systems that currently exist for the dwellings on Lots 111 and 112. Lots 111 and 112 have existing dwellings on each new lot. Mr Haddad states that the stormwater runoff will remain exactly the same as the current site conditions. No additional runoff or stormwater generated pollutants will be created by subdividing the land. On this basis, it is unreasonable to construct the entire infrastructure suggested by Ms Collier for Stage 1. The Stage 2 subdivision of Lot 113 is the appropriate time. Similarly, OSD and WSUD features for Lots 111 and 112 are not necessary as these will be catered for in the common facilities in Stage 2.

Findings

23. The significant difference between Ms Collier and Mr Haddad is when it is reasonable to construct the infrastructure for Lots 111 and 112. Put simply, Ms Collier maintains that as new urban lots are being created then those lots should be subject the full requirements of the Water Management Specification. Mr Haddad maintains that as no approval is sought for Lots 111 and 112 for anything that would change the current stormwater disposal, then the full requirements of the Water Management Specification are unnecessary.

24. On this matter, I agree with Mr Haddad. I accept that the Water Management Specification is a valuable and important document for the future redevelopment of the Warriewood Valley Urban Release Area. The proposed subdivision should ultimately have to comply with its requirements but not for Stage 1 of the subdivision. In essence, this stage provides an interim step in the subdivision of the site by excising the two dwellings (Lots 111 and 112) and creating a residual lot for future subdivision (Lot 113). No other matters are proposed in Stage 1. Lot 111 has a dwelling in poor condition and according to the town planning experts is likely to be redeveloped in the earlier stages of redevelopment of the site. Currently stormwater is collected and discharged through underground pipes to a series of informal trenches over Lot 113. The more recent dwelling on Lot 112 is already connected to the stormwater pipe in 53 Warriewood Road, presumably as part of the approval for the dwelling. It was agreed that this dwelling is likely to remain given its current good condition.

25. Even if Stage 2 does not proceed in the short term, I am not satisfied that the provision of the infrastructure suggested by Ms Collier for either of the two options and the retrofitting of the facilities for a house that is likely to be demolished is unreasonable, in the circumstances. In my view, this approach does not represent “the promotion and co-ordination of the orderly and economic use and development of land” given the cost of providing these facilities that may ultimately not be required given the likely subdivision of Lot 111, the connection of the dwelling on Lot 112 to the stormwater pipe in 53 Warriewood Road and importantly the connection of development on Lots 111 and 112 to the OSD and WSUD facilities required for Stage 2.

Flooding of Lot 213

The evidence

26. Ms Collier states that the Warriewood Valley Flood Study indicates that the Probable Maximum Flood (PMF) level for Narrabeen Creek is 4.9 m AHD. Based on the survey plan of the site, Lot 111 will be at approximately 8.0 m AHD and the Lot 112 will be at approximately 7.5 m AHD. However, Lot 113 will be subject to flooding as this lot has its lowest level at 1.93 m AHD. Ms Collier estimates that more than 50% of Lot 113 will be flood-affected. The creation of Lot 113 is inconsistent with the requirements of the DCP Section C6.4 (in force at the time that the application was made) which states:

The subdivision of land requires the building platforms for each additional allotment created to be at or above the flood planning level.

27. Further, and while a Stage 2 plan of subdivision is part of the application, this part of the application could potentially not proceed or could change and therefore the building platform could be located anywhere on the lot. It would therefore be reasonable to assume that anywhere outside of the riparian corridor would need to be elevated to the flood planning level of 4.8 m AHD

28. Mr Haddad states that no filling needs to be undertaken and Lot 113 can be left in its current state. The contention relates to the front lots only which have existing dwellings. Lot 113 is not part of the contention and is a vacant land in its natural state and will remain as such in Stage 1. Any further development or subdivision of Lot 113 will require the filling of the land above the flood levels as per Stage 2 documents presented to council. These documents clearly show that the subdivision of Lot 113 creates lots above the flood level and provides for flood free parcels of land.

Findings

29. I agree with the conclusions of Mr Haddad. Lot 113 is a residual lot that will be developed as part of Stage 2. It is not intended to be used for urban purposes in its current configuration. There was agreement that the earthworks works required for Stage 2 satisfactorily address any flooding implications for the proposed subdivision of Lot 113.

The proposed Stage 2 lot sizes/lot yield

30. Expert town planning evidence was provided by Mr Paul Grech, for the council and Mr James Lovell, for the applicant. They agree that the existing dwelling on Lot 112 appears unlikely to be redeveloped for the foreseeable future. It is a relatively new dwelling and its design and siting is generally consistent with the planned character of the area. Mr Lovell notes that in any event, any future development of Lot 112 will be subject to the planning controls that apply at the time of the submission of any application. The dwelling on Lot 111 is more likely to be developed in the short term given the size, age and condition of the dwelling.

31. Mr Grech and Mr Lovell agree that the proposed subdivision does not necessarily prevent either the minimum or maximum number of dwellings being achieved across the whole of the site; however Mr Grech does not agree that the application will ensure that this occurs and establishes a framework that will constrain future development. Mr Lovell notes that the subdivision layout is largely dictated by the required alignment of Lorikeet Grove extending across the site, connecting to the existing and approved alignments of the roadway to the west and east. Further, new Road 2 matches the alignment of the approved internal roadway to the east. The alignment of new Road 1 is the most efficient subdivision layout. Mr Lovell states there is no reason why either the minimum or maximum dwelling yield cannot be achieved.

32. In relation to the future character of the area, Mr Lovell notes that proposed Lots 201 - 210 (ranging from 172 sq m to 273.6 sq m) are larger than the majority of the lots recently approved by council on the adjoining property to the east (53C Warriewood Road) where the lot sizes range from 148.1 sq m to 170.2 sq m. Those lots have a same orientation to the proposed lots and in any event, the approval does not provide for the construction of dwellings on those allotments. Further, the approved subdivision maintains the existing dwelling fronting Warriewood Road.

33. Mr Grech notes that the proposed subdivision will provide the opportunity for 13 dwellings, with potential for more dwellings on proposed Lots 111 and 213. However, there is no definitive proposal of how a development outcome with 30 to 43 dwellings will be achieved to satisfy cl 6.1(3) of the LEP. .The provisions of cl 6.1 of LEP 2014 and the DCP establish a reasonably flexible structure for planning and obtaining development approvals for relatively small parcels of land in a greenfield release area situation. This flexibility is balanced against the need for applicants to undertake master planning of those parcels of land to ensure development will achieve key planned outcomes, provide for the delivery of site infrastructure and will coordinate with adjoining development. In his experience, unless a development application is lodged for the ultimate development of the site, then a masterplan that conceptually shows how the whole site would be developed is necessary to assess whether an acceptable outcome would be achieved, and in this case, this would be the minimum required to be satisfied that cl 6.1(3) of LEP 2014 would be complied with.

30. Mr Grech further states that the current proposal will create lots to accommodate about 1/3 of the dwellings required for the site but does not set in place the design parameters by which the following 2/3's will be subject to. He states that a masterplan for the whole of the site should be provided, to demonstrate how the current proposal would fit into a scheme that would acceptably satisfy the dwelling yield required by LEP 2014. The masterplan should assume further development of Lot 111 and allocate space for all utility services, visitor parking driveway crossovers, street trees and provide dwelling designs for the proposed lots. The road system should be designed to allow for manoeuvring of waste collection vehicles and bin stand locations.

31. Mr Grech states that it would not be orderly and best practice to subdivide the site into new lots in a greenfield situation, which establishes limitations and potential constraints to their future development without the reasonable certainty that the lots will be developed in an acceptably planned and coordinated manner.

Findings

36. I accept Mr Grech’s position that a masterplan would be desirable but I do not accept that it is necessary. There is nothing fundamentally wrong with the approach adopted by the application. The subdivision of land in stages with residual lots for future subdivision is commonplace in the development of urban land. In this case, there are no minimum lot sizes provided in LEP 2014 but only a maximum and minimum number of lots for specific sites. If there was any doubt over whether the maximum and minimum requirements in cl 6.1 could be achieved then I would agree with Mr Grech that a masterplan should be provided however I have no such doubt. Ultimately, the applicant must satisfy the number of lots in cl 6.1 or risk refusal by the council.

37. I also have no doubt that a dwelling could be built on each of Lots 201 – 210. The applicant provided architectural designs to show this could be achieved (Exhibit J). While these architectural plans were part of a previous application refused by the council, they clearly establish that acceptable dwellings can be constructed on Lots 201 – 210. The most significant issue raised by the council in relation to the dwellings was the potential problems with location of water storage tanks and an acceptable solution was proffered by the applicant in response.

38. I also see no issue with the character of the proposed subdivision (and likely dwelling construction). As stated by Mr Lovell, the subdivision layout is largely dictated by the required alignment of Lorikeet Grove extending across the site, connecting to the existing and approved alignments of the roadway to the west and east and together with New Roads 1 and 2, the proposed subdivision provide the most efficient subdivision layout. The proposed lot size is also not a matter that would warrant the refusal or amendment given the absence of any minimum lot size in LEP 2014 and the approval by the council of smaller lot sizes on the adjoining property (53C Warriewood Road).

39. The retention of the dwelling on Lot 112 has no meaningful impact on the character of the area and is anticipated by the DCP where it states:

…Lots suitable for housing typologies that reflect the streetscape character of existing housing on the opposite side of Warriewood Road, for example dual occupancies (attached or detached) should be sited fronting Warriewood Road

The management of infrastructure for Lot 213

40. Mr Lovell states that it is intended that Lot 213 will have s88 restrictions to impose benefits, burdens and maintenance requirements for road and stormwater infrastructure for all new lots (including Lots 111 and 112 in Stage 1). New Lots 201-210 will have burdens on their title for their share of maintenance of any infrastructure they have the benefit of. While there are alternate ways in which the responsibility for the maintenance of infrastructure could be distributed, such as under a Community Title arrangement, it is not proposed to use other alternatives given that there is no obligation to use other alternatives beyond a s88B instrument.

41. Mr Grechs’ position is that just because there may be no legal impediments to the registration of a subdivision using s88B instruments, it does not mean that considerations relating to the on-going management of the infrastructure associated with that development are not relevant planning considerations. On the basis that restrictions will be created through a s88B instrument, Mr Grech still maintains the following concerns:

• there is uncertainty as to who will be responsible for the maintenance of the infrastructure and the users of that infrastructure without a masterplan or approval for development on proposed lot 213, and

• if the maintenance of the road was to be a public authority there would unlikely be an issue but in this case there is a need for future private owners to accept this responsibility.

42. While Mr Grech acknowledges that there is no reason that the developer of the site should be mandatorily required to develop the site under a Community Title scheme; this form of title provides a number of benefits for resolving the on-going infrastructure management issues.

Findings

43. I accept a s88B instrument is an appropriate mechanism for the management of infrastructure and that the provision of a s 88B Instrument can be imposed through a condition of consent and subject to the approval of council.

Half road construction of Warriewood Road

The evidence

44. Mr Grech and Mr Lovell agree that the half road construction of Warriewood Road, as proposed, is a desirable outcome however Mr Grech considers that the road construction should be required as part of the Stage 1 works whereas Mr Lovell considers it should form part of the Stage 2 works. Mr Grech and Mr Lovell agree that if the applicant is not willing or able to carry out the half road reconstruction in Stage 1, that a Bond in respect of those works could be imposed as a condition of consent in relation to Stage 1 of the proposed development, although this is not Mr Lovell’s principal position.

45. Mr Grech and Mr Lovell are aware that the joint statement prepared by the traffic experts includes agreement that "the half road reconstruction of Warriewood Road should be undertaken in Stage 2 because the Stage 1 subdivision will not generate any traffic activity which would warrant any infrastructure works" although Mr Grech maintains his position that the half road construction should be provided at Stage 1.

46. Mr Grech considers that the works proposed to Warriewood Road have a primary nexus with Lots 111 and 112, which are the only proposed lots to have frontage to Warriewood Road. The works to Warriewood Road are integral to the transformation of the parent rural residential lots to urban lots. Lot 111 has further urban development potential and it is reasonable and common practice to ensure lots created for urban purposes have road frontage constructed to an urban standard. Also, Mr Grech is concerned that if the half road reconstruction of Warriewood Road is not required as part of Stage 1, the work may not be carried out in the event that Stage 2 does not proceed, under the same consent.

47. Mr Lovell is of the opinion that there is no direct nexus between the Stage 1 development, and the half road reconstruction of Warriewood Road. Lots 111 and 112 have existing access to Warriewood Road and no new allotments are proposed with a frontage or access to Warriewood Road.

Findings

48. I am satisfied that the half road reconstruction of Warriewood Road should be undertaken in Stage 2 because the Stage 1 subdivision will not generate any traffic activity which would warrant any infrastructure works. Again, and while Lots 111 and 112 are new urban lots they do not provide the demand for the half road construction because these lots practically retain their status as existing residential dwellings, and particularly in this case, their access to Warriewood Road.

Section 94 contributions

The evidence

49. Ms Tija Stagni, the Local Infrastructure Coordinator for the council provided evidence and Mr Lovell provided evidence for the applicant. They agree that the s 94 Plan is silent in relation to whether existing dwellings that are retained within a subdivision should be levied a s 94 contribution. However, pt 2.10 of the s 94 Plan identifies certain types of development that are not required to make a s 94 contribution. They include development "That in the opinion of Council does not increase the demand for the categories of local infrastructure addressed by this Plan".

50. Ms Stagni states that s 94 contributions relate to the funding of community needs and not the needs of the individual. She further states that the future incoming community will expect and demand an urban standard of infrastructure and therefore it is reasonable that the developer is required to contribute toward the infrastructure requirements of the total development that is proposed. The future residents of Lots 111 and 112 are expected to have a different demographic profile to the existing residents and will generate demand the infrastructure and services planned to be delivered via s 94.

51. Ms Stagni further states that Lots 111 and 112 are significantly larger than the majority of residential lots in the Warriewood Valley Release Area. Should Lots 111 and 112 be subdivided in the future (and if contributions are paid for Lots 111 and 112), one credit per lot would be permitted under the s 94 Plan, in recognition of the contribution made as part of this development. There is no evidence that the existing two dwellings proposed to be retained will not create a demand for the type of infrastructure provided for and by the s 94 Plan or that the proposed development will not increase the demand for the types of infrastructure provided for by the s 94. Further, pt 2.4.1 of the s 94 Plan provides a formula to calculate the contributions payable under the plan. The formula refers to "Total dwellings to be developed".

52. Mr Lovell states that the retention of the existing dwellings is such that they do not "increase the demand" for the categories of development infrastructure addressed by the s 94 Plan. Therefore, the retention of the existing dwellings satisfies the exemption requirements set out in Part 2.10 of the s 94 Plan.

53. Mr Lovell notes the comments of Ms Stagni that the future residents of the existing dwellings are expected to have a different demographic profile to the existing residents however, in his opinion, this is not a relevant consideration. The s 94 Plan is based on an average density of occupants, and the specific number, or demographic profile, of people occupying a dwelling at any given time is not relevant.

54. In response to the comments of Ms Stagni in relation to "there is no evidence that the existing two dwellings proposed to be retained will not create a demand for the type of infrastructure provided for by the plan" and whether the retention of the existing dwellings satisfies that requirements of Part 2.10 of the s 94 Contributions Plan, Mr Lovell states that this is the wrong test. The correct, and required test is whether the existing dwellings will "increase the demand" for infrastructure. In circumstances where the existing dwellings are being retained, the existing dwellings do not "increase the demand" for infrastructure.

Findings

55. I agree with Mr Lovell that the test of whether a credit should be given to the existing dwellings is not a just matter of blindly applying the s 94 Plan (although pt 2.10 provides the opportunity for a credit) but providing a more fundamental consideration of the provisions of s 94. Relevantly, s 94(1) states:

(1) If a consent authority is satisfied that development for which development consent is sought 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 the development consent subject to a condition requiring:

(a) the dedication of land free of cost, or

(b) the payment of a monetary contribution.

56. In accordance with s 94(1) and for the payment of a monetary contribution, it is necessary for the Court to be satisfied that Stage 1 of the subdivision “will or is likely to require the provision of or increase the demand for public amenities and public services within the area”. While Ms Stagni maintains that there was no evidence to suggest that the residents of the existing dwellings would not use the new goods and services provided by the s 94 Contribution Plan and that future residents" of the existing dwellings "are expected to have a different demographic profile to the existing residents", I agree with Mr Lovell that this is not the appropriate question.

57. In my view, it is not necessary to enter into such detail given the necessary and often general assumptions required to formulate a s 94 Plan. To accept the approach of Ms Stagni would require an almost individual assessment of each person living in the Warriewood Release Area and also those moving into the area. This is not a practical or sensible approach or one advocated by s 94. To address s 94(1) (and whether a credit should be given for the dwellings on Lot 111 and 112), I am satisfied that it is reasonable to conclude that the existing residents of the dwellings on Lots 111 and 112 are likely to be catered for by the existing public amenities and public services and that these residents will not or are unlikely to require the provision of or increase the demand for public amenities and public services within the area. The fact that some existing residents of the dwellings on Lot 111 and 112 may use the facilities does detract from the fundamental position advanced by s 94(1).

58. This finding also raises the question of whether the condition sought to be imposed by the council, fairly and reasonably relates to the development (Newbury District Council v Secretary of State for the Environment [1981] AC 578).

Conditions of consent

59. The parties differed on conditions of consent based on the preceding matters in dispute. The applicant provided a marked up version of the councils conditions and I propose to adopt the changes shown on the marked up version of the council’s conditions, including substantive changes on the matters in dispute, some minor changes not raised during the hearing and superfluous references to the council, appeal rights and s 82A reviews. The conditions also have numbering irregularities in some parts which have resulted in a change of numbering in parts of the conditions of consent.

Orders

60. The orders of the Court are:

1. The appeal is upheld.

2. DA No 350/14 for the subdivision of land at 53, 53a & 53b Warriewood Road, Warriewood in two stages is approved subject to the conditions of consent in Annexure A.

3. The exhibits are returned with the exception of exhibits A, C and D.

______________

G T Brown

Commissioner of the Court

10871 of 2015 (C) gtb (538 KB, pdf)

Amendments

09 March 2016 - Annexure A attached/uploaded

Decision last updated: 09 March 2016