Oxford Holdings Pty Ltd v Mulgrave Shire Council

[1992] QCA 386

IN THE COURT OF APPEAL	[1992] QCA 386
SUPREME COURT OF QUEENSLAND

No. 122 of 1992

BETWEEN:

OXFORD HOLDINGS PTY. LIMITED

Appellant

v.

MULGRAVE SHIRE COUNCIL

Respondent

______________________________________________________________

___

The President
Mr. Justice McPherson
Justice White

______________________________________________________________

__

Judgment of the Court delivered on the thirteenth day of
November 1992
______________________________________________________________
_

APPEAL ALLOWED BY SUBSTITUTING AS THE TIME FOR PAYMENT IN THE FINAL SENTENCE OF EACH OF CONDITION 1 AND CONDITION 2 IN THE REASONS FOR JUDGMENT GIVEN ON 25 JUNE 1992 THE TIME FIXED BY S.6.2(10)(A) OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990, OR AS THE PARTIES MAY AGREE.

IN ALL OTHER RESPECTS, APPEAL DISMISSED WITH COSTS.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 122 of 1992

Before the Court of Appeal

The President
Mr. Justice McPherson

Hon. Justice White

BETWEEN:

OXFORD HOLDINGS PTY. LIMITED

Appellant

v.

MULGRAVE SHIRE COUNCIL

Respondent

JUDGMENT OF THE COURT

Delivered the Thirteenth day of November 1992

MINUTE OF ORDER

Appeal allowed by substituting as the time for payment in the final sentence of each of Condition 1 and Condition 2 in the reasons for judgment given on 25 June 1992 the time fixed by s.6.2(10)(a) of the Local Government (Planning and Environment) Act 1990, or as the parties may agree.

In all other respects, appeal dismissed with costs.

CATCHWORDS

LOCAL GOVERNMENT - TOWN PLANNING - Appeal from decision of Planning and Environment Court in respect of applications by appellant to subdivide approved subject to conditions - whether any error of law shown with respect to imposition of conditions

Counsel:	The appellant by its director Lyon Q.C., with him Ure, for the respondent
Solicitors:	Macdonnells, Cairns, for the respondent

Hearing date: 6 October 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 122 of 1992

BETWEEN:

OXFORD HOLDINGS PTY. LIMITED

Appellant

v.

MULGRAVE SHIRE COUNCIL

Respondent

JUDGMENT OF THE COURT

Delivered the Thirteenth day of November 1992

This is an appeal from a decision of the Planning and Environment Court at Cairns in connection with an application by the appellant to subdivide land at Yorkey's Knob. The respondent is the local planning authority, the Council of the Shire of Mulgrave. This appeal concerns conditions imposed on the subdivisional approval by the Planning and Environment Court.

The land is an irregularly shaped block with frontages to Sims Esplanade and to Wattle Street and Kempton Street, both of which intersect with Sims Esplanade. Previously, the land consisted of a number of allotments which were amalgamated in 1986. It is now a single allotment (Lot 33) comprising 1.344 hectares which is zoned Residential "C" and used as a tourist accommodation complex, upon which a substantial number of bures is constructed. The object of the subdivision is to exercise the rectangular allotment of approximately 2,023 square metres which has a frontage to Sims Esplanade approximately 40 metres in length. The bures forming part of the tourist complex are to be removed from that area but will remain on the balance area with frontages to Wattle and Kempton Streets. According to the subdivisional application it is proposed to build a residential unit block on the land (proposed Lot 34) having the Sims Esplanade frontage. It is not disputed that the proposal is to replace 9 of the bures with 12 two bedroom units.

On 2 June 1992, the judge of the Planning and Environment Court who heard the appeal to that Court delivered reasons for judgment which concluded as follows:

"The end result therefore is that the appeal is allowed and the application for subdivisional approval is granted subject to the conditions relation [sic] to contribution to water supply and sewerage headworks as redrafted, former condition 20 and a condition relating to pavement widening in Sims Esplanade. I give liberty to either party to apply in relation to the formulation of these conditions."

The appellant appealed on 22 June 1992, although there is nothing to indicate that a formal order has yet been entered.

The notice of appeal filed on 22 June related only to the conditions requiring contributions to water supply and sewerage headworks. In his reasons for judgment dated 2 June the primary judge said:

"There was extensive discussion regarding the proposed conditions relating to contributions to water supply and sewerage headworks. I do not propose to set out a detailed account of the arguments advanced but after a consideration of all of the evidence I am satisfied that the solution in relation to water supply headworks proposed by the respondent's engineer, Mr. Agar, was reasonable and just and took proper account of previous contributions made in respect of the subject land. I accept his suggestion that Condition 5 should be

re-drafted in this manner.

'The registered proprietor is to contribute towards the provision of water supply headworks in accordance with the rate per equivalent domestic connection under Council's current by-laws and policies provided for in s.6.2 of the Local Government (Planning and Environment) Act at the time of payment.
The registered proprietor is to be credited with a number of equivalent domestic connections that has been paid for as a result of the consent to the existing bures at a rate of 0.35 EDC per bures removed on each proposed allotment.

A credit will attach to the allotment from which the bures is removed. The registered proprietor shall pay to Council an amount in accordance with the formula set out below at the time of lodgment of a building application.'

(No. of EDC'scredit for ) current rate

(required as - No. of EDC's) x per EDC for = $amount

(a result of	previously )	Water District	of
(building	paid for	)	18 Yorkey's Knob contribution
(application

Proposed Condition 22 dealt with contribution to sewerage headworks in accordance with s.6.2 of the Act. Evidence was given that it is the Council's intention to reticulate sewerage in the Yorkey's Knob area in the period 1991-1994. No such contributions have yet been forthcoming in respect of this land and, having regard to the relevant provisions of the Act and the evidence given it would appear to me to be just that there be a condition imposed upon this approval which reads:

'The registered proprietor is to contribute towards the provision of sewerage headworks in accordance with Council's by-laws and policies provided for in s.6.2 of the Local Government (Planning and Environment) Act at the time of payment. The contribution is to be paid prior to the lodgment of any building application in respect of further development of the subject land.'"

His Honour's only comment in relation to pavement widening of
Sims Esplanade at that time was:

"Some pavement widening of the Esplanade to continue the widened section of the roadway down to an appropriate point of access to the subject land is justified. Evidence on this matter was sketchy but common sense should enable the parties to formulate such a condition by agreement. If not, I am quite prepared to determine the matter and give liberty to either party to apply for those purposes."

The parties could not agree on the relevant condition, and were compelled to refer the matter back to the judge for his decision. Further reasons for judgment were delivered on 21 July which commenced as follows:

"In this matter the formulation of a condition dealing with pavement widening to which reference was made in my reasons for judgment remains to be attended to. The parties have not been able to reach agreement on the matter so I must make the necessary decision.

To avoid the considerable expense of either taking the Court once more to Cairns, or, alternatively, bringing the parties to Brisbane, it has been agreed among all concerned that the matter should be dealt with on the basis of written submissions. These have been received and I propose to make my decision on the basis of these submissions and on the evidence given in the hearing."

His Honour then proceeded to deal with the condition relating to pavement widening to Sims Esplanade as follows:

"In my view the major considerations are that a pavement width suitable for traffic to and from the north to gain access from and to development on proposed Lot 34 is desirable as is the discouraging of through traffic to the Kempton Street intersection, a matter upon which much emphasis was placed in the course of the appeal.

I have concluded that the community's interests and those of the appellant are best reconciled by the provision of a pavement widening which will extend the width existing in front of Lot 32 (excluding the parking bays) to a point 20 metres south of the northern boundary of proposed Lot 34 together with a tapering extending over a further ten metres. All pavement construction should be to a standard commensurate with that presently existing.

I accept the submission that to ensure that the point of access to any development on the subject allotment be within the twenty metres of widened pavement, an access restriction strip should be provided over the remainder of the frontage.

The fears expressed by Mr. Habblewaite that this would inhibit any further subdivision of Lot 34 is not soundly based as the matter could be re-assessed if such an application was forthcoming (Mareen Developments Pty. Ltd. v. Brisbane City Council [1972] Qd.R. 72 p.203) although one would suppose that further pavement widening in such a case would probably be considered.

In the respondent's submissions more elaborate road works were discussed but while, from a traffic engineering viewpoint, the attractions of these are clear, I am not satisfied that it would be reasonable or relevant to make them the subject of conditions of approval of this subdivisional application."

He concluded with a summary of the outcome of the appeal:

"In the end result therefore, my final order in the

appeal will be that;

The appeal is allowed.

The application to subdivide the subject land is
approved subject to conditions that;

1. The registered proprietor is to contribute towards the provision of water supply headworks in accordance with the rate per equivalent domestic connection under Council's current by-laws and policies provided for in s.6.2 of the Local Government (Planning and Environment) Act at the time of payment. The registered proprietor is to be credited with a number of equivalent domestic connections that has been paid for as a result of the consent to the existing bures at a rate of 0.35 EDC per bures removed on each proposed allotment.

A credit will attach to the allotment from which the bures is removed. The registered proprietor shall pay to Council an amount in accordance with the formula set out below at the time of lodgment of a building application.

(No. of EDC's credit for ) current rate

(required as - No. of EDC's) x per EDC for = $amount

(a result of	previously )	Water District	of
(building	paid for	)	18 Yorkey's Knob contribution
(application

2. The registered proprietor is to contribute towards the provision of sewerage headworks in accordance with Council's by-laws and policies provided for in s.6.2 of the Local Government (Planning and Environment) Act at the time of payment. The contribution is to be paid prior to the lodgment of any building application in respect of further development of the subject land.

3. There be provided a pavement widening which will extend the pavement width existing in front of Lot 32 (excluding the parking bays) to a point 20 metres south of the northern boundary of proposed Lot 34 together with a tapering extending over a further ten metres. All pavement construction should be to a standard commensurate with that presently existing. An access restriction strip is to be provided over the remainder of the frontage of Lot 34.

4. The application is exempted from the provisions

of By-law 19(a) insofar as it relates to sewerage
reticulation."

The appeal is now directed to each of the first three of these conditions. It is convenient to begin with a consideration of Condition 3.

A.    Condition 3: Access restriction strip. The third of the above conditions imposed by the court

required the provision of a strip along the frontage of proposed Lot 34 to Sims Esplanade, for the length of which vehicular access from Lot 34 on to that road would be restricted.

The appellant has two complaints about this matter. One concerns the requirement of an access restriction strip as such; the other the process by means of which the primary judge reached his decision to impose the restriction. Originally neither of these complaints was the subject of appeal; but on 31 July 1992 the appellant advised the Registrar of this Court of its intention to amend; and at the hearing we gave leave to amend the notice of appeal so as to include both of these matters.

It may be said at once that the complaint about the procedure that was followed in reaching the decision to impose condition 3 is entirely without substance. As has been explained, in delivering his reasons on 2 June 1992 after the initial hearing the judge decided that the pavement or roadway of Sims Esplanade should be widened down to the point of access. However, he also suggested that the parties consult in order to formulate the requisite condition, with liberty to them to apply. In the event they could not agree on the condition and so returned to the judge, by presenting to him in the form of correspondence a series of submissions in writing. It was only after that, in giving his further reasons on 21 July 1992, the judge decided that there should be both a widening of the pavement and the provision of an access restriction strip.

The appellant's complaint about these events is that it was denied notice of the Council's intention to press for inclusion of that restriction, as well as an opportunity of being heard in opposition to it. That complaint is, however, quite untenable. The appellant actively participated in the correspondence leading to the decision now complained of; the correspondence shows it had ample notice that the Council was continuing to ask for an access restriction strip (see letter dated 15 July 1992, at p.129 of the record); and the appellant's own letter dated 20 July 1992 (which was the final item in the correspondence) expressly left the matter "to your judgment", meaning the decision of the judge to whom the letter was addressed.

The second aspect of the appellant's complaint about
condition 3 is somewhat more difficult to identify or define.
In part it involves an assertion that, having once decided
not to include the access restriction strip, his Honour had
no power to change his mind. Plainly, however, that is not
so. His decision in the first instance was provisional only;
the order of the court was not passed and entered; and, as
to the matter of pavement widening, the original decision
embodied a liberty to apply. It is thus quite wrong to
suggest that the decision on 21 July 1992 imposing the access
condition was in some way in excess of jurisdiction.

As regards the substance of the appeal on this point, the appellant's complaint attains what may be its clearest form in the course of the reply on the appeal. It claims that the access restriction strip has been imposed only because of the appellant's declared intention to construct units on proposed Lot 34; if, on the other hand, its proposal to build those units does not in fact proceed, but instead the appellant subdivides that lot into two single homesites, one of the sites will be disadvantaged by the presence of the access restriction strip. It would then be necessary for the appellant to return to the Planning and Environment Court to have the restriction removed.

There seems to be no good reason for assuming that, in the event of a further application to subdivide the lot into two single homesites, the Council would be powerless to review the condition restricting access to the Esplanade; but the fact that another application to court might be needed is in any event not a legitimate ground for regarding the condition in question as unreasonable or unnecessary in the circumstances as they appeared at the time of the hearing in the court below and as they now appear.

This ground of appeal is thus plainly not capable of being sustained. It reveals no error or mistake of law on the part of the judge and it involves no question of absence or excess of jurisdiction in the Planning and Environment Court as is required in order to found a competent appeal to this Court.

B. Conditions 1 and 2
The provisions adopted by the judge as Conditions 1 and

2, to which approval of the application to subdivide was subjected, each incorporate a requirement that the registered proprietor contribute towards the provision of:

(a)  water supply headworks, at a rate specified under the Council's current by-laws and policies, subject to allowing a credit at a rate identified in that condition;

and

(b)  sewerage headworks, in accordance with those by-laws and policies.

The conditions speak of those "policies" as being provided for in s.6.2 of the Local Government (Planning and Environment) Act 1991 ("The Act"). Before examining in detail the contention that both conditions 1 and 2 are invalid, it is necessary to say something of the legislative scheme in Part 6 of that Act and the particular provisions it contains.

Part 6, headed Conditions, Contributions and Works, comprises ss.6.1 to 6.4. Those sections are designed to regulate the extensive powers exercised by local authorities of requiring payments from developers and others as a condition of granting approval of applications for rezoning, use, subdivision, etc., of land. In that regard the dominant restriction on the power to impose any such condition is that, by s.6.1(c), the approval may not be subjected to a condition that is "not relevant or reasonably required" in respect of the proposal to which it relates. Subject to that overriding limitation, s.6.2 then proceeds to identify the requirements to which such a condition is to conform if it is imposed in the course of approving a "prescribed application", defined in s.6.2(1)(a)(iv) to include an application, like that in the present case, to subdivide land.

The provisions of s.6.2 are aimed mainly at conditions requiring payments or contributions to the capital costs, incurred or to be incurred, of providing water supply headworks, sewerage headworks, and other adjuncts of supplying water or sewerage services to the relevant land. Subsections (2) to (6) of s.6.2 describe in detail the various kinds of works and the permissible forms of condition and amounts of payments or contributions that may be imposed or required in relation to each of them. There are variations in the subjects and particular powers dealt with, and it is enough to say here that each of ss.6.2(2), 6.2(3) and 6.2(4) authorises a local authority to prescribe conditions requiring payment or contribution to costs of the kind described.

Section 6.2(6) imposes limits on the amount of the

contribution that is required to be paid under that provision.

In its amended form it now provides:

"(6) The amount of any contribution required to be paid to a Local Authority pursuant to this section is -

(a)   where a prescribed application to subdivide land and the relevant land was at the relevant date in a zone under a planning scheme which would permit its use for a purpose envisaged by the prescribed application and the water supply headworks or sewerage headworks (or both), as the case may be, are available to service the relevant land - not to exceed the cost (calculated at the approval date determined by the Local Authority under section 5.1(5)(a), 5.2(4) or 5.3(4) to be appropriate) of the works which the Local Authority could lawfully impose by way of any by-law that was in existence at the relevant date and which required or may have required the applicant to contribute towards the cost of those works;

(b)   in any other case, notwithstanding section 2.8(6) - to be determined in accordance with a planning policy adopted by the Local Authority which is ... ".

Subsection 6(b) proceeds to add various other particular

requirements with which the planning policy is to conform.

It will be necessary in a moment to consider specific
aspects of the planning policy adopted by the Council here.
For the present it may be mentioned that s.6.2(7) also
identifies matters to which a local authority must have regard
in adopting a policy pursuant to s.6.2(6). They include in
s.6.2(7)(e) the application of the policy so as to secure a
reasonable contribution by the applicant to the costs of the
works, taking into account specified factors including in
(e)(iv) "the proposed use of the relevant land".

With these provisions in mind it is possible now to turn to relevant parts of the planning policy adopted by this Council pursuant to s.6.2 of the Act. The appeal record shows it to have been adopted by resolution of the Council at a meeting held on 9 March 1992 and that it is identified as Policy No. 1.105. Section s.1.1 of that Policy is in the main occupied in describing its scope, application, and functions.

A paragraph of it numbered (ii) explains that the policy applies to all prescribed applications "where the Council has decided that water supply or sewerage works are able to be provided to the development defined in the prescribed application". Before us there was some debate about the meaning of the word "development" in this context; but, although apparently not defined, the term plainly has reference to the proposed us to which the relevant land is to be put. In the case of the subject land, the appellant's written application dated 5 August 1991 for approval to subdivide contains in item (d) the following description:

"Proposed Lot 33 - Yorkey's Knob Beach Bures.
Proposed Lot 34 - Proposed Residential Unit
Development."

It is the latter use that represents the "development" referred to in the planning policy.

Paragraph (iii) of the same section 1.1 of Policy No. 1.05 explains the methods adopted by Council for determining the amount of the contribution to be made by the applicant toward the cost of the relevant works. A circumstance specifically mentioned in para.(iii) as one in which the Council will require payment of contribution is "where a development may increase the demand on Council's water supply or sewerage works or both, above that for which a contribution has already been made". In that event the policy declares that the contribution required will be such as to provide for satisfying the increased demand. Likewise, under s.3.1(iv) of the Policy No. 1.05 the amount of contribution is to be calculated by reference to the increased demand on water supply and sewerage works using certain specified tables.

The above account of relevant provisions of s.6.2 and the planning policy serves to introduce the grounds on which the appellant relies in support of its appeal against the inclusion of Conditions 1 and 2. They are as follows:

"1. That the parts of the Judgment set out above are wrong in law as they are contrary to the Mulgrave Shire Council's policies number 2.01(j) and/or 1.05 Section 3 to 3.2.3 inclusive;

2. That the formulas set down for the calculation of the contribution is wrong in law as they are contrary to Section 6.2(6)(a) of the Local Government (Planning and Environment) Act;

3. That the partes of the judgment set out above impose conditions that are not relevant or reasonably required and thus are wrong in law, being contrary to Section 6.1(1)(c) of the Local Government (Planning and Environment) Act."

Some of the matters raised by these three grounds are relevant to both Condition 1 (water supply headworks contribution) and Condition 2 (sewerage headworks); others relate only to one or to the other condition. One that relates to both is the appellant's argument that the conditions are contrary to para.(j) of another policy of the Council numbered 2.01.

Paragraph (j) is directed to a case like the present where existing residential allotments are subdivided. It provides that "if the resubdivision produces no greater number of allotments there shall be no requirements as to water, sewerage, or upgrading of the road bordering the allotments ...". In the present case the "resubdivision" or proposed subdivision of existing Lot 33 will result in the creation of a new Lot 34 fronting the Esplanade and a balance of Lot 33.

Obviously, therefore, it does produce a greater number of allotments (two instead of one), so that Policy No. 2.01(j) has no impact upon it. Plainly therefore, the appellant's reliance upon that provision is altogether misplaced.

To this the only answer offered by the appellant is that before the amalgamation in 1986 the site was divided into three allotments (Lots 33 and 34 and sub.3 of resub.453).

While that is no doubt factually accurate, it is quite irrelevant to the question at issue on the appeal. Policy 2.01, and in particular para.(j) of it, evidently refer to the time at which the approval for resubdivision is given, and not to some other earlier and undefined time in the past history of the land. What happened in or before 1986 cannot now be used to determine the fate of the application to subdivide made in August 1991.

A second aspect of the appellant's submissions on appeal, and one that also occupies a place of prominence in relation to both water supply and sewerage headworks contribution, is that, according to the appellant, the subject land is already entitled to the benefit of water and sewerage, so that the proposed subdivision will do nothing to increase the demand for either of those services. It follows, so runs the appellant's argument, that none of the provisions of Policy 1.05 authorising contributions to be required toward the costs of such works is capable of being applied in the present case.

By virtue of para.(iii) of s.1.1 of Policy 1.05, it is only when there is an increase in the demand arising from the development that a contribution to costs can be required; in the absence of such an increase no contribution can be exacted as a term of the approval.

The principal difficulty with the appellant's submission on this point is that it insists on treating the term subdivision in this context as meaning nothing more than the drawing of a line on a plan that upon registration will have in law the effect of splitting a single parcel of land into two or more allotments. That is the abstract or technical sense in which the word subdivide and its derivatives is used, for example, in s.119 of the Real Property Act 1861; but it is not only in that limited sense that the word is used in the provisions of the Council's planning policy. As has been noticed, para.(ii) in s.1.1 of Policy 1.05 refers to a Council decision that water supply or sewerage works are able to be provided "to the development defined in the prescribed application". We have already seen that in the appellant's application to subdivide the development as defined in item (d) is the "proposed residential unit development" on proposed Lot 34, under which nine of the existing bures are to be replaced by 12 two-bedroom units.

It is clear that the Council's planning policy may legitimately take into account the proposed use of the relevant land. That is, as we have seen, something that is expressly recognised in s.6.2(7)(e)(iv) of the act as a proper factor to be considered in securing a reasonable contribution to the cost of the works. The additional demand that will be occasioned by the use of the proposed residential unit accommodation, which is the "development", is therefore not only a legitimate consideration but the operative factor justifying the imposition of an obligation to contribute as well as a measure of the amount of the contribution. Contrary to the appellant's submission, the contributions envisaged in Conditions 1 and 2 are not being required simply because the registered plan will subdivide the land into two parcels but because of the increased demand that will follow the proposed use of, or "development" on, the land.

It is convenient now to consider some specific arguments that are advanced by the appellant against each of the Conditions examined separately.

(a) Sewerage headworks contribution. As regards sewerage headworks contribution, Condition 2 does no more than require contribution toward provision of those headworks "in accordance with Council's by-laws or policies provided for in s.6.2 of the ... Act at the time of payment". It is difficult to see how any objection can possibly be taken to a condition framed in that way, which effectively does no more than incorporate the applicable provisions of the by-laws and policies leaving calculation of the quantum of the contribution to be made in the future.

The appellant nevertheless has a further complaint about
Condition 2, which is additional to those already considered.
In particular, it is said that the subject land in its
present unsubdivided condition is already entitled to sewerage
services without contribution for headworks, so that the
imposition of Condition 2 is contrary to s.6.2(6)(a) and
provisions of the planning policy.

A critical circumstance of which the significance may not have been fully grasped by the appellant is that the sewerage works, for the cost of which the Council is intending to require contribution, have not yet been constructed. A condition requiring contribution may, pursuant to s.6.2(2)(b) and (c), nevertheless be imposed where the local authority:

(b) "is constructing a ... sewerage scheme", or (c) is "prepared to provide" as part of that scheme headworks that are adequate to make sewerage (sic)available to the relevant land. In such a case s.6.2(2) requires the amount of contribution to be "determined in accordance with a planning policy adopted by "the local authority, and s.6.2(6) imposes limits on the amount that may be demanded.

In relation to amount, s.6.2(6) is divided into paras.(a) and (b). Paragraph (a) caters for the case where water supply headworks or sewerage headworks are already available to service the relevant land; para.(b) caters for "any other case", and requires the quantum of the contribution to be determined in accordance with a planning policy.

It is now the intention of the Council to sewer the area of Yorkey's Knob in which the subject land is situate. The case thus falls within s.6.2(2) as being one where the local authority is constructing a sewerage scheme or is prepared to provide headworks. Unless sewerage headworks are already available to service the relevant land, the amount of contribution falls to be determined in accordance with Council planning policy: see s.6.2(6)(b). The relevant portion of that policy is s.3.1 of Policy 1.05. It operates where the Council "is prepared to make available water or sewerage to the relevant land", and it requires the applicant to pay contribution toward the cost of headworks as determined in accordance with that section of the policy.

It was therefore proper for the court to include Condition 2 requiring as a condition of the approval that a contribution be made by the applicant to the cost of the sewerage headworks for the sewerage scheme that the Council is intending to make available to land (including the subject land) at Yorkey's Knob. The legislation referred to is adequate to authorise the provisions contained in the planning policy, and they do not offend any of the specific limitations or restrictions imposed by the legislation. Contrary to a further contention advanced by the appellant, which is that the primary judge was not entitled to take account of the fact that no contributions to sewerage headworks have yet been made by the appellant in respect of the subject land, it is clear from s.6.2(5) of the Act that the extent of contributions already made is a factor that the local authority is required to bring into account in determining whether a contribution to the cost of the works ought to be made. The appellant's contention on this point, and generally on the condition requiring contribution to cost of sewerage headworks, is not capable of being sustained. In including Condition 2 the court below made no error of law or jurisdiction.

(b) Water supply headworks contribution. In this instance it was Condition 1 that imposed the duty to contribute which is now challenged on appeal. There are two relevant differences between it and Condition 2 relating to sewerage headworks contribution. First, water supply headworks serving the subject land have already been constructed and are in existence; secondly, Condition 1 contains a specific formula fixing the extent of the credit to be allowed to the appellant in diminution of its obligation to contribute.

As to the first point, s.6.2 of the Act provides both for
the case where the works are yet to be constructed and also
where they are already in being and paid for. See ss.6.2(2)
and s.6.2(3), each of which speak of payment or contribution
"towards the cost incurred or to be incurred" in providing
such works. In this instance, where water supply headworks
are already available to service the land, it is not
s.6.2(6)(b) but s.6.2(6)(a) that is relevant in determining
the amount of contribution that may be demanded.

The principal basis of this aspect of the appeal is, first, that contribution can be required only if increased demand accompanies the application; and second, that no such demand will arise either from the application or the subdivision in this case. There is, we think, no reason to doubt the first step in this reasoning. Paragraph (iii) of s.1.1 of Policy 1.05 does, as we have seen, expressly authorise contribution to be required beyond that already made, for an increase in the demand on the Council's water supply or sewerage works. In determining the rate of the contribution to be made, s.3.1 of Policy No. 1.05 refers to calculation of the increased demand on the water supply and sewerage works.

The appellant's argument at this stage is essentially a repetition of one that has already been considered in another context; namely, that, viewed in the abstract, subdivision of the land cannot itself create any "increased demand" for water supply that is capable of activating provisions of the Policy enabling contribution to be required. The submission to that effect has already been disposed of. It is not necessary here to do more than recall that it is not subdivision as such but the increased demand arising from the proposed use following upon the subdivision that is the relevant factor or criterion.

As to this, s.3.2.2 of Policy No. 1.05 is specific, providing

as it does that:

"In assessing the demand created by a subdivision application the number of equivalent domestic connections shall be calculated through assessing the proposed land use for each sub-divided lot ... Balance areas ... shall be counted as a new allotment irrespective of the size of the area ... "

The final attack on Condition 1 was directed specifically to the quantum of the contribution in the form of the amount to be allowed under it by way of credit for contribution already made by the appellant to the cost of water supply headworks. Section 6.2(6)(a) of the Act contains an express restriction upon the amount that may be exacted by way of contribution. It is:

"... not to exceed the cost of the works that the local authority could lawfully impose by way of any by-law that was in existence at the relevant date and which required the applicant to contribute towards the cost of those works."

The "relevant date" for this purpose is defined in s.6.2(1)(a) as 1 September 1985. At that date the following by-law was in force:

"19.A(e)(i) If the Council shall require an applicant to contribute towards the cost of the provision of a water supply service and the provisions of sewerage or the provision of water supply service or the provision of sewerage (other than by reticulation) to the land to be subdivided in accordance with subparagraphs (iii) and (iv) of clause (b) of this By-law then the Council shall state in the relevant condition of approval the amount of contribution required (which having regard to the reasonable foreseeable extent of usage of the facility concerned by the applicant and others) and such contribution shall be paid within the time specified in the relevant condition of approval (which shall not be less than three months except with the consent of the applicant)."

It is common ground that under this by-law the applicant had previously contributed to the cost of water supply headworks. The record does not show that under the formula in Condition 1 the contribution now being required does not exceed the limit allowed under the legislation; but we were informed, without contradiction, that this was so. In adopting that formula the judge in a passage already set out in these reasons said he was satisfied that the solution in relation to water supply headworks proposed by the Council engineer Mr. Agar "was reasonable and just and took account of previous contributions made in respect of the subject land".

The Court has not been provided on appeal with a full record of the proceedings including transcript of evidence given at the hearing. Without it, the appellant cannot hope to expose any question of law said to be lurking in his Honour's finding to the foregoing effect. Even with the benefit of such a record, it would almost certainly be seen that the finding that the proposal was "reasonable and just" cannot have involved any error or mistake involving a question of law. An appellant wishing to challenge a decision of the Planning and Environment Court is bound to produce to this Court, and identify, the materials that demonstrate that to be so.

It remains to mention a further general submission from the appellant based on the overriding statutory prohibition against imposing a condition of approval that is "not relevant or reasonably required". The appellant argues that none of the principal conditions was "reasonably required" as a term of the approval for the subdivision of this land. Essentially the point made here is that in 1975 the Council zoned the subject land Residential "c" with a view to promoting development of the type proposed, and that in doing so:

"... the Council relinquished its rights to impose certain conditions on the site including water and sewerage headworks contributions, roadworks, etc."

It is said also that, because of that form of zoning, the Council has in the past received higher rates in compensation for the rights it so relinquished.

With respect to all of this it is enough to say simply that, even if correct, the propositions so advanced demonstrate no mistake of law that would justify this Court in interfering with the Conditions imposed by the Planning and Environment Court.

The only respect in which Conditions 1 and 2 require attention is that Condition 1 requires payment to be made "at the time of lodgment of a building application", and Condition 2 requires the contribution to be paid "prior to the lodgment of any building application ...". This is contrary to s.6.2(10)(a), which requires payment within 14 days after receipt by the local authority of notification of the applicant's intention to commence works in connection with the application. The two Conditions must be varied accordingly.

Otherwise the grounds argued before us raise no mistake or error of law, nor any want or excess of jurisdiction, in arriving at the decision appealed against. In all other respects the appeal must therefore be dismissed with costs.