S J Connelly CPP Pty Ltd v Byron Shire Council - [2012] NSWLEC 1324

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324
Hearing dates: 22, 23 24 June 2011 and 1, 16 September 2011
Decision date: 04 June 2012
Jurisdiction: Class 1
Before: Dixon C
Decision:
1.I propose to uphold the appeal and amend the Schedule of contributions under condition 26 as detailed in my judgment.
2.The Council is directed to prepare a revised Schedule of contributions, which reflects my reasons for judgement, and file that Schedule with the Court and serve a copy on the applicant within 7 days of today date.
3.Upon receipt of the revised Schedule I propose to make final orders unless the parties need to address me in respect of the revised Schedule.

Catchwords: Modification of development consent - Section 94 contributions condition - reduction of monetary contribution - no nexus to the development - amount claimed unreasonable - no account of material public benefit from retention of heritage building- historical "peak workforce" use of the site as council chambers -
Legislation Cited: Bryon Local Environmental Plan 1988
Byron Shire Council Section 94 Development Contributions Plan 2005
Draft Byron Shire Section 94 Contributions Plan 2010
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Act Regulation 1994
Environmental Planning and Assessment Regulation 2000)
Heritage Act 1977
State Environmental Planning Policy (Infrastructure) 2007
Cases Cited: Arkibult Pty Ltd v Ku Ring Gai [2006] NSWLEC 502; (2006) 148 LGRERA 85
Bennette V Byron Council (2004) NSWLEC 565
Fevcourt Pty Limited &Anor V Wingecarribee Shire Council [2005] NSWCA 107
Goldie v Commonwealth of Australia (2002) FCA 261
Meriton Apartments Pty Limited v Council of the City of Sydney (2011) NSWCA 17
Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266
Stockland (Constructors) Pty Limited v Baulkham Hills Shire Council [1996] NSWLEC 185
Category: Principal judgment
Parties:
S J Connelly CPP Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation:
P Tomasetti SC (Applicant)

A Seton (solicitor) Respondent)
Solicitors
McCartney Young Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 10786 of 2010

Judgment

Background

This appeal concerns land at 19-23 Lawson Street, Byron Bay being the site of the former Byron Bay Council Chambers. Until 1996 it was owned and occupied by the respondent, Byron Shire Council, as its Administrative Centre and Council Chambers.

In 1996 the applicant, S J Connelly CPP Pty Ltd, purchased the site and obtained a development consent DA 10.2005.733.1 (the 1996 consent) to operate a 90 x bed hostel called the "Main Beach Backpackers", with 3 retail shops and a takeaway food shop. In assessing the car parking demand that would be generated by this new use the Council accepted that the development generated a demand for 27 car parking spaces of which 23 spaces would be provided onsite. It required the applicant to pay a financial contribution of $45,882 for the provision by council of the 4 spaces it could not provide onsite. (Exhibit 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWLEC 1324
Decision Date: 04 June 2012

CaseChat Overview and Summary

The case of S J Connelly CPP Pty Ltd v Byron Shire Council involved the applicant, a property developer, appealing a decision made by the Byron Shire Council regarding contributions to a local infrastructure fund. The applicant contested the amount of the contributions they were required to make for the development of a commercial property. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Council had correctly calculated the contributions required under a condition in the development approval. Specifically, the applicant argued that the Council had improperly calculated the contributions by failing to consider certain factors that should have reduced the amount. The applicant contended that the Council's assessment did not align with the statutory guidelines and was therefore unreasonable.

In its judgment, the court found that the Council had indeed made errors in its calculations. The court held that the Council had failed to take into account certain relevant factors that should have resulted in a lower contribution amount. The court also noted that the statutory guidelines and precedents required a more nuanced approach to the calculation of contributions. Consequently, the court determined that the Council's Schedule of contributions was not in accordance with the law and required amendment. The court proposed to amend the Schedule to reflect the correct application of the relevant statutory provisions and to order the Council to prepare and file a revised Schedule within seven days.

The court further proposed to make final orders upon receipt of the revised Schedule, unless the parties had further submissions to make. The court's decision ensured that the contributions were calculated in accordance with the applicable legal standards and provided clarity for future similar cases.

Orders

Orders of the court

1.I propose to uphold the appeal and amend the Schedule of contributions under condition 26 as detailed in my judgment.

2.The Council is directed to prepare a revised Schedule of contributions, which reflects my reasons for judgement, and file that Schedule with the Court and serve a copy on the applicant within 7 days of today date.

3.Upon receipt of the revised Schedule I propose to make final orders unless the parties need to address me in respect of the revised Schedule.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324
Hearing dates:	22, 23 24 June 2011 and 1, 16 September 2011
Decision date:	04 June 2012
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1.I propose to uphold the appeal and amend the Schedule of contributions under condition 26 as detailed in my judgment. 2.The Council is directed to prepare a revised Schedule of contributions, which reflects my reasons for judgement, and file that Schedule with the Court and serve a copy on the applicant within 7 days of today date. 3.Upon receipt of the revised Schedule I propose to make final orders unless the parties need to address me in respect of the revised Schedule.
Catchwords:	Modification of development consent - Section 94 contributions condition - reduction of monetary contribution - no nexus to the development - amount claimed unreasonable - no account of material public benefit from retention of heritage building- historical "peak workforce" use of the site as council chambers -
Legislation Cited:	Bryon Local Environmental Plan 1988 Byron Shire Council Section 94 Development Contributions Plan 2005 Draft Byron Shire Section 94 Contributions Plan 2010 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Act Regulation 1994 Environmental Planning and Assessment Regulation 2000) Heritage Act 1977 State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Arkibult Pty Ltd v Ku Ring Gai [2006] NSWLEC 502; (2006) 148 LGRERA 85 Bennette V Byron Council (2004) NSWLEC 565 Fevcourt Pty Limited &Anor V Wingecarribee Shire Council [2005] NSWCA 107 Goldie v Commonwealth of Australia (2002) FCA 261 Meriton Apartments Pty Limited v Council of the City of Sydney (2011) NSWCA 17 Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 Stockland (Constructors) Pty Limited v Baulkham Hills Shire Council [1996] NSWLEC 185
Category:	Principal judgment
Parties:	S J Connelly CPP Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	P Tomasetti SC (Applicant) A Seton (solicitor) Respondent) Solicitors McCartney Young Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10786 of 2010