Piwila Pty Ltd v Kempsey Shire Council
[2012] NSWLEC 1171
•22 June 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Piwila Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1171 Hearing dates: 12 June 2012 Decision date: 22 June 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld.
2. Condition 11 of Development Consent T6-11-135 for the payment of a s 94 contribution is deleted.
3. The exhibits, other than exhibits 1, 2 and A, are returned.
Catchwords: DEVELOPENT CONSENT - appeal against condition imposed under s94 of the EPA Act 1979 on a development consent for the construction of a shed Legislation Cited: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979Category: Principal judgment Parties: Mr Robert Dennis (Applicant)
Kempsey Shire Council (Respondent)Representation: Mr Robert Dennis (Applicant in person)
Mr Geoffry Underwood (barrister) (Respondent)
Coney Harvey Doney (Respondent)
File Number(s): 10314 of 2012
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against a condition of consent, Condition 11, of Development Consent no. T6-11-135, granted by Kempsey Shire Council (the Council), requiring a contribution of $8,332.00 under s 94 of the Environmental Planning and Assessment Act 1979.
The development consent is for the demolition of existing sheds and the construction of a new shed at the rear of commercial premises at 73 Belgrave Street, Kempsey (the site).
The appeal was subject to mandatory conciliation on 12 June 2012 in accordance with the provisions of s34 of the Land and Environment Court Act 1979. At the end of the conciliation conference, the parties advised that there was no prospect of an agreement being reached and so the conciliation conference was terminated pursuant to s 34(4) and the parties consented to me disposing of the proceedings forthwith on the basis of what had occurred at the conciliation conference, pursuant to s 34(4)(b)(ii).
Issues
The majority of the applicant's contentions, included in the Statement of Facts and Contentions, dealt with the validity of the Kempsey Town Centre Public Domain Section 94 Developer Contribution Plan 2010 (the Contribution Plan), which is not a matter that can be addressed as part of these proceedings. The relevant issue raised in the proceedings, which was discussed by the parties during the conciliation conference, is whether the contribution is reasonable or unreasonable in this case, in accordance with s 94B(3) of the EPA Act, as follows:
A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.
The Council contends that the increased floor area of the new shed will or is likely to increase pedestrian and vehicular traffic to it and use of adjacent open spaces and that, in turn, will or is likely to increase additional demand for public infrastructure adjacent to the new development. The applicant contends that the new shed will not provide increased demand for public amenities and public services in the area.
The site
No. 73 Belgrave Street, Kempsey is located on the northern side of Belgrave Street, on the corner of Memorial Avenue. The site contains a single storey dwelling, used as commercial premises and the newly constructed shed to the rear. The parties agree that the new shed, when compared to the demolished sheds, represents an increase in floor area of 63 m2. Vehicular access is provided to the rear portion of the site from Memorial Avenue.
The newly constructed shed is a separate structure to the commercial premises and includes a panel lift door on the southern elevation, fronting the vehicular access to the rear portion of the site. The shed encloses a rudimentary storage space and does not have basic facilities usually associated with commercial office space, such as toilets and air conditioning/heating.
The planning framework
Section 94(1) of the EPA Act states:
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,
or both.
Section 94B(1) of the EPA Act provides that a consent authority may only impose a condition under s94 if it is of a kind allowed by, and is determined in accordance with, a contribution plan. It states:
A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).
The site is located within the Contribution Catchment - Commercial, identified by the map on page 30 of the Contribution Plan.
Section 5.4 of the Contribution Plan, 'New and Existing Development', states that the contribution will be payable on developments affecting existing residential and commercial properties within the contribution catchment, in the case of commercial properties for 'an increase in the floor area of an existing business'. The Contribution Plan's commercial contribution is calculated on the basis of a square meter rate of $131.03 (table page 31 of the s94 Plan).
The Section 94 Contribution Plan: Project Administration requires a 6% levy to be applied to the subtotal of payable contributions.
Condition 11 of development consent T6-11-135 required a total payment of $8,332.00 as a contribution towards the provision or improvement of amenities or services, prior to the issue of a Construction Certificate. The contribution was calculated based on the Contribution Plan's commercial contribution square meter rate of $131.00, multiplied by the increase in the floor area of 60 square meters, plus the 6% administration levy.
Findings
Development consent T6-11-135 describes the approved development as 'demolition of existing sheds and construction of new shed'. The Statement of Environment Effects (SEE) submitted as part of the development application, dated May 2011, describes the proposed development as follows:
The shed will be used for commercial office storage, security carparking and uses that compliment the businesses now operating in the existing offices.
In order to impose a condition requiring a s 94 contribution under the plan, the Council must be satisfied, under the provisions of s9 4(1) of the EPA Act, that 'the 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 development consent granted by the Council is for construction of a new shed, to replace existing sheds, at the rear of commercial premises, to be used for storage, car parking and uses that compliment the businesses operating in the commercial premises, according to the SEE.
In imposing a condition under s94, it must be established that the development 'will or is likely to require the provision of, or increase the demand for public amenities and public services within the area'. For commercial land uses, it could be argued that there is a relationship between floor area and persons who create the need for public amenities and public services. This relationship, however, may not exist in all cases. In this case, the additional floor area of 63 m2 is to be used for 'office storage, security car parking and uses that compliment the businesses now operating in the existing offices.'
Based on the use of the shed described by the SEE and the explanation provided by the applicant at the hearing, I am not satisfied that the additional floor area could reasonably be seen to satisfy the fundamental test in s 94(1). If the shed were to be used to house additional staff for the operation of the business elsewhere on the site, then the Council's position would have merit.
Having found that the proposed shed does not satisfy the requirement in s 94(1), the appeal must be upheld and condition 11 deleted.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Condition 11 of Development Consent T6-11-135 for the payment of a s 94 contribution is deleted.
3. The exhibits, other than exhibits 1, 2 and A, are returned.
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Susan O'Neill
Commissioner of the Court
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Decision last updated: 25 June 2012
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