S J Connelly CPP Pty Ltd v Byron Shire Council
[2012] NSWLEC 1324
•04 June 2012
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) 2007Cases 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 185Category: Principal judgment Parties: S J Connelly CPP Pty Ltd (Applicant)
Byron Shire Council (Respondent)Representation: P Tomasetti SC (Applicant)
A Seton (solicitor) Respondent)
Marsdens Law Group (Respondent)
Solicitors
McCartney Young Lawyers (Applicant)
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 Tab 1 p4).
In December 2004, the Council placed an Interim Heritage Order on the council building under the Heritage Act 1977. On 25 November 2005 the building was listed as an "item of environmental heritage" under Schedule 2 of the Bryon Local Environmental Plan 1988 (LEP).
On 24 May 2007 the Council granted the applicant development consent to DA 10.2005.733.2 (the 2007 consent) for development described as a three storey mixed commercial development comprising:
(1) 316-bed backpacker hostel;
(2) 2 restaurants;
(3) 1 takeaway food shop;
(4) 5 retail shops;
(5) retention of 4 existing shops; and
(6) 55 onsite car parking spaces.
The consent was issued subject to condition 26. It provides:
"26 Developer Contributions to be paid
Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with [and the condition lists certain documents]...
The contributions payable will be adjusted in accordance with [sic] relevant plan and the amount payable will be calculated on the basis of the contributions rates that are applicable at the time of payment..."
The Schedule to condition 26 is said to be based on the provisions of the Byron Shire Council Section 94 Development Contributions Plan 2005 (CP2005) and is as follows:
SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979
Community and Cultural Facilities
(CF-BB)
86.90 SDU @ $967.17
=
$84,046.88
- Shire Wide
(CF-SW)
86.90 SDU @ $540.29
=
$46,950.77
Open Space
90S-BB)
86.90 SDU @ $6,033.78
=
$524,335.79
- Shire Wide
(OS-SW)
86.90 SDU @ $2,602.49
=
$226,156.81
Roads
(R-BB)
291.00 trips @ $765.92
=
$222,882.76
Car Parking
(CP-BB)
32.8 Spaces @ $54,594.84
=
$1,790,710.75
Cycleways
(CW-BB)
86.90 SDU @ 699.70
=
$60,804.20
Civic & Urban Improvements
(IM-BB)
91.87 SDU @ $1,547.50
=
$142,168.90
Surf lifesaving
(SL-BB)
86.90 SDU @ $25.16
=
$2,168.19
Administration
(OF-SW)
91.87 SDU @ $726.48
=
$66,741.90
Total
=
$3,166,984.96
On 6 August 2010 the applicant made application to the Council under s96 (1A) of the Environmental Planning and Assessment Act 1979, to modify the Schedule of contributions under condition 26 to an amount of $831,349.31 (folios 162 and 178 of Exhibit 2).
Before that application was determined the applicant filed this appeal on 30 September 2010.
On 11 October 2011 the council resolved to reduce the Schedule of contributions to a total amount of $2,397,108.93 (folios 354 -355 Exhibit 2).
SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979
Open Space
(OS-BB)
48.68
SDU @
$6,033.78
=
$293,724.58
" - Shire Wide
(OS-SW)
48.68
SDU @
$2,602.49
=
$126,689.46
Roads
(R-BB)
280.00
Trips @
$765.92
=
$214,457.64
Car Parking
(CP-BB)
29.40
Spaces @
$54,594.84
=
$1,605,088.29
Cycleways
(CW-BB)
48.68
SDU @
$699.70
=
$34,061.55
Civic & Urban Improvements
(IM-BB)
53.59
SDU @
$1,547.50
=
$82,930.57
Surf Lifesaving
(SL-BB)
48.68
SDU @
$25.16
=
$1,224.67
Administration
(OF-SW)
53.59
SDU @
$726.48
=
$38,932.17
Total
=
$2,397,108.93
In reducing the contribution the Council accepted that there should be no contribution made by the development for the local or shire wide "Community and Cultural Facilities" identified in the CP2005. It also accepted that the contributions for "Open Space, Cycleways, Civic & Urban Improvements, Lifesaving and Administration" should be reduced to reflect an occupancy rate for tourist development of 56% identified in the exhibited draft Byron Shire Section 94 Contributions Plan 2010 (folio 348 of Exhibit 2 - paragraph 6 of the Respondent's Written Submissions (RWS)). Other adjustments were made based on the floor areas of various components in the development.
In paragraph 102 of its written submissions, the Council submits that it would not be unreasonable for the Court to amend the contributions payable pursuant to the 2007 consent to provide for a contribution comprising the following:
- Parking - $619,948.48
- Roads - $246,825.67
- Open Space - $200.419.00
- Cycleways - $46,066.00
- Civic and Urban Improvements $46,166.00
- Surf Life saving - $1187.21
- Administration - $36,866.83
- Total $1,200,479.19
(The amounts are unindexed and council submits would need to be indexed from the date of the CP 2005 until the date of payment in accordance with the CP2005).
However, the reduction in the monetary contributions does not resolve the appeal because the applicant's primary submission is that it should not be required to pay any monetary contribution.
The issues are detailed in the applicant's Second Further Amended Facts and Contentions filed with the leave of the Court on 11 March, which is Exhibit A. The Court has been assisted by comprehensive written submissions filed by the parties and the expert planning, traffic/engineering, and heritage expert evidence.
Applicant's contentions
The applicant submits that no contributions are payable under s94 or that the quantum of the contribution imposed with respect to:
(a) Open Space (including "Shire Wide"),
(b) Roads.
(c) Car parking,
(d) Cycleways, and
(e) Civic & Urban Improvements,
(f) Administration
It asserts that the conditon is unlawful as there is no nexus between the development and the demand for those facilities identifed in the CP2005.
The applicant contends that it is unreasonable to require any contribution for the above items under the CP2005 and relies on section 94(2) of the Environmental Planning and Assessment Act 1979 . In the alternative, it asserts that the quantum of the s 94 contribution sought for the items is unreasonable and without limitaion.
With respect to a s 94 contribution for "Administration" in its written submissions (AWS) the applicant submits it is unreasonable and the contribution should be nil ( AWS paragraph 23).
With resepct to carparking contribution the applicant contends that the council has incorrectly calculated the carparking demand generated by the development. The quantum of the carparking contribution is unreasonable having regard to the requirement to retain and preserve and restore (in part) the heritage item on the site and the difficulty of achieveing carparking with such a constraint. It argues a material public benefit has been provided by the heritage item and that has not been factored into the amount of the car parking contribution.
In calculating the net increase in demand for public services and amenities generated by the development it submits it is reasonable to have reagrd to the pre -existing demand for public services and amenities generated by the peak work force populaion on the subject site at the time that it was owned and occupied by the council.
The applicant asserts that the development should not be levied for certain road works included in the CP 2005 because there is no nexus with the development.
It asserts some of the works identified in the CP 2005 are no longer being carried out yet a contribution is sought toward these works; such as the Byron Bypass (which is identified as "new works" in - Table 4.15 of the CP2005 -Exhibit 2 folio 851); and discussed in the council's report dated 24 June 2010 (Exhibit H). Other identified shortcomings and inaccuracies within the CP2005 are listed at paragraphs 59 to 65 of the AWS.
The applicant also contends that condition 26 fails to adequately establish the nexus between the expected types of development in the area to which that plan applies and the demand for amenities and services to meet the development (cl27 (1)(c)). In other cases the council attempts to impose obligations upon the incoming population for amenities and services the demand for which was already generated and in existence by 2001. The Court was referred to works brought forward from the 1993 plan into the CP 2005 which the applicant contends has no nexus to the 2007 consent under review (paragraph 73 -81 AWS.)
The applicant also asserts that the proposed development does not generate the demand for public services and amenities for which contributions are claimed. For example, there is little or no demand from backpackers for amenities such as open space or car parking. In support of this submission the applicant relies on the survey data in Annexure 2 to Exhibit 7; and, the oral evidence of its planner Mr Smith (transcript 24 June 2011 page 65, line 49 - [page 66, line 1]. It contends that the draft 2010 CP recognises that a substantial discount should apply to tourist related developments to take account of occupancy rates. Yet CP 2005 has not been amended at any time to reflect that discount in respect of tourist development. This is so notwithstanding that the council has been aware since 2005 that the contribution rate should be discounted by 56% [Page 9 transcript 24/6/2011 line 27].
Ultimately the applicant invites the Court to come to the view that the applicant should not pay any contributions as a result of the grant of consent to this development. It submits that the CP 2005, which was adopted on 28 June 2005, fails to comply with the law and therefore "cannot form the basis for a calculation of s94 contributions that are reasonable" (paragraphs 58- 68, 204 (a) AWS). However, if the Court is minded to require some monetary contribution, it submits that obligation is more than offset by the value of the material public benefit in retaining the council chamber building as a heritage item and recognising the difficulty in achieving car parking on the site because of the item. This credit would be in addition to the credit, which the applicant contends arises from a consideration of the "peak workforce" or occupancy when the council used the land as administration offices. It is the applicant's position that the council did not correctly assess, if at all, the net parking increase generated by the 1996 development consent as compared to the council use as discussed by the Court in Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17. It believes that credit should be applied to this consent.
In short, the applicant invites the Court under s 94B to form its own view as to what a reasonable contribution should be (if any) having regard to the circumstances and the facts of this case (AWS paragraph 67-68).
Council's contentions
The Council is of the view that the modified Schedule of contributions detailed at paragraph [11] should be imposed.
It takes issue with the applicant's interpretation of Meriton and submits the Court of Appeal decision is not authority for the proposition that the Council or the Court is required, in respect of imposing a monetary contribution under s 94 of the EPA& Act, to determine or give a credit for the "peak workforce' that may have occupied the site the subject of the development application at some previous point of time. The Court of Appeal did not deal with the question of how far back, if at all, a council or the Court should go in relation to determining the maximum population of a site; and, there is no such general principle.
The Council contends that the provisions of the statute are concerned with the net demand for public amenities and services generated by the development in question. This requires a determination of the existing demand for such services in order to reach the net demand: Merition at [59]. There is no need to go back further than the present use of the site pursuant to the 1996 consent to determine the population of the relevant land and the existing demand for public amenities and services. It follows that a credit for the demand generated by the existing 90-bed hostel and 4 shops would be allowed and it would be unreasonable to go back further in the circumstances of the case (RWS paragraphs 22 -30). If the Court does not accept that submission, the Council explains that any credit allowed against monetary contributions for the 2007 consent for the demand generated by the use of the land prior to 1996 for the council chambers would be limited to the joint expert evidence in Exhibit 9 and Exhibit G and not as the applicant asserts by reference to the DCP 2002 or DCP 2010 (exhibit 4 and 5).
The Council rejects the applicant's claim for a 50% credit against the monetary contribution for car parking as proposed in the Council's planner's report on the 2007 consent (Exhibit 2 tab 3) based on a "material public benefit" for the preservation of the 1929 section of the former council chamber building the Council. It submits that it is not legally open to the Court to take into account the heritage building as a "material public benefit" under s94 (6) of the EPA &Act on the facts of this case. And even if it were, it submits that there is no probative evidence before the Court to support the amount of the discount of 50%. It invites the Court to reject the evidence of Mr Gooley about the development potential of the site (without the heritage item) as unreliable because his evidence is based on the 2004 development application which was refused by the council for many reasons not just the heritage item. It also submits that council's internal planning assessment report, which supports a 50% discount for car-parking contribution should be ignored (Exhibit C).
The council submits that the there is no suggestion that the Bypass or other listed works in the CP2005 have been abandoned. The withdrawal of the development application for the Bypass was a consequence of legislative changes, which allowed the development to proceed under State Environmental Planning Policy (Infrastructure) 2007. It submits that there is no probative evidence to support the applicant's claim in this regard.
The Council submits that the Court is entitled to assume that the CP2005 sets out the works that are proposed to be provided by the council: Easeport Pty Ltd V Leichhardt Council (2001) 112 LGERA 376 (although I note the law has changed since Easeport; cl 26 (g) of the Environmental Planning and Assessment Act Regulation 1994 was replaced by cl 27 Environmental Planning and Assessment Regulation 2000). It also contends that it is not unlawful to carry works forward from earlier contributions plans to the CP 2005. There is no restriction in the EPA Act or regulations upon a council carrying forward works and collected contributions into a new plan: Fevcourt Pty Limited &Anor V Wingecarribee Shire Council [2005] NSWCA 107 Beazley JA. In support of this submission it relies on Mr Mc Kenzie, council's planner's oral evidence at p83, line 21 of the transcript dated 24 June 2011 "...the proportion that council has charged for these facilities is listed in the table. Now they decided, in moving from one plan to the next plan and I'll admit this is a clumsy way of doing it, but they're accepting an uplift in the proportion that they're collecting those contributions for."
While I am not bound to apply the CP2005 the council submits that I should have regard to those provisions unless it can be objectively demonstrated that a condition imposed in accordance with CP 2005 was unreasonable in the circumstances of the case (RWS paragraph 16). The council reminds me that the statutory discretion of the Court is not unfettered it must be referenced to the subject matter, scope and purpose of the legislation which creates it: Goldie v Commonwealth of Australia (2002) FCA 261 at 45.
Consideration
In order to dispose of this appeal I must decide - in accordance with s 94B (3) of the EPA & Act - whether to disallow or amend conditon 26 because it is unreasonable in the particular circumstances of this case. The section states:
"
94B Section 94 or 94A conditions subject to contributions plan
....
(3) 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 section does not authorise me to disallow or amend the contributions plan even if I accept, as the applicant contends, that the CP 2005 has not been updated in accordance with the Environmental Planning and Assessment Regulation (effective 8 July 2005) or reviewed as required by the Department's Practice Notes to in respect of accountability and transparency (Exhibit 2 tab 30 folios 947-968).
Those matters are only relevant in this appeal if it results in the imposition of a condition that is unreasonable in the circumstances of the case. Only then is the condition open to challenge: Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 Santow JA citing Pearlman J in Stockland (Constructors) Pty Limited v Baulkham Hills Shire Council [1996] NSWLEC 185 "...until the contribution plan is amended, anyone who challenges such a condition is likely to succeed "; and Jagot J in Arkibult Pty Ltd v Ku Ring Gai [2006] NSWLEC 502; (2006) 148 LGRERA 85 at [45].
Council has already acknowledged issues with the application of the CP2005 in respect of this case. It has on review reduced and in one instance removed some of the items in the schedule. It has accepted that there should be no contribution made by the development for the local or shire wide "Community and Cultural Facilities" identified in the CP2005. It also accepted that the contributions for "Open Space, Cycleways, Civic & Urban Improvements, Lifesaving and Administration" should be reduced to reflect an occupancy rate for tourist development of 56% identified in the exhibited draft Byron Shire Section 94 Contributions Plan 2010 (folio 348 of Exhibit 2 - paragraph 6 of the Respondent's Written Submissions (RWS) and now proposes a final amended version at RWS paragraph [102].
I must now consider whether the reductions to the contributions result in a reasonable s 94 condition in this case or whether condition 26 should be amended in the terms sought by the applicant or at all.
In making that decision I am not required to apply the provisions of CP 2005 or impose a condition that is in accordance with CP2005 if I am of the opinion to do so is unreasonable. However, my discretion under s94B of the EPA &Act is not unfettered. I must adhere to the subject matter, scope and purpose of the imposition of the condition requiring the payment of a monetary contribution under s94 (1) of the EPA &Act. That means that I must have regard to the "net demand for public amenities and services generated by the development in question: per Tobias Meriton at [56] and [58].
On the evidence before me, I cannot accept that the development approved by the 2007 consent does not generate a demand for public amenities and services. I agree with the councils' submission that the development proposes a substantial increase in the existing number of hostel beds on the subject site (226) and provides for five new shops having a GLFA of 226.8m2 and two restaurants having a GLFA of 142.07m2.
The applicant contends that any contribution payable is offset under s 94 (6) by the material public benefit gained by the retention of the heritage building on the site and a consideration of the net increase in parking demand generated by the development when compared to the "peak workforce" when the council used the site. These propositions are fundamental to the applicant's primary case.
Material Public Benefit
The applicant relies on s 94 (6) of the Act in support of its claim for a discount for the retention of the heritage item as a "material public benefit".
Section 94 provides:
"
94 Contribution towards provision or improvement of amenities or services
(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,
or both.
(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.
(3) If:
(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and
(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).
(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.
(5) The consent authority may accept:
(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or
(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).
(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:
(a) a benefit provided as a condition of the grant of development consent under this Act, or
(b) a benefit excluded from consideration under section 93F (6).
(7) If:
(a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and
(b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,
then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition. "
The Council submits that because the applicant has not dedicated or provided any part of the building on the land to the council it cannot rely on s94 (6). It is only a "material public benefit" if it is dedicated or provided free of cost within the area (or any adjoining land) to the consent authority (RWS paragraph 35 - 43).
In this case the building is not vested in or placed in the control of the council. And, the Council submits even if it was not necessary for the material public benefit to be dedicated or provided to council it submits that there has been no "material public benefit" dedicated or provided by the applicant/owner of the land. The building remains because of the planning controls that require it to be retained not because of anything done or provided by the applicant/owner of the land. It is listed as a heritage item under the LEP1998. The building has always been able to be viewed from the public domain and the applicant provides nothing more.
The Council contends that it is not legally open to the Court to take into consideration the heritage item that remains on the land as a "material public benefit" under s 94(6).
I accept council's submissions on this issue. The development does no more than comply with the provisions of clauses 19 and 20 of the LEP 1998. The heritage item is a development constraint on the site but that does not equate with it being a "material public benefit" for the purposes of s94 (6). As Mr Romney, the applicant's heritage expert states at 5.0 at p6 of Exhibit E the development incorporates "...adaptive reuse of the retained 1929 Byron Shire Council Chambers building for front of house hostel reception and lounge functions." The applicant in this case retains the private use of the heritage item and does not offer it up for a public use such as a "community centre" controlled by the council or someone other than the applicant.
A material public under s 94 (6) to my mind must be a public benefit of an enduring nature and not one susceptible to being withdrawn or changed by the applicant or a successor in title. An enduring public benefit is assured by vesting the item in the control of the council or some other entity independent of the owner of the land. Whether s 94 (6) requires that it only be vested in the council does not need to be determined on the facts of this case.
Therefore, I do not believe that I have the power under s 94 (6) to give any credit or discount as sought by the applicant in respect of any material public benefit argument on the facts of this case.
Peak workforce
In identifying the net increase in demand for public amenities and services the applicant argues that there is no evidence before the Court that indicates that any real or genuine consideration was given by the council to the net increase in demand for public amenities and public services generated by the development of a 90 bed backpackers hostel. It submits that as a matter of law following the decision of the Court of Appeal in Meriton the Court is required to have regard to the peak workforce for the purposes of determining the net demand for public services and amenities. (AWS in Reply paragraph 1 p1).
The peak workforce is a matter of fact and the applicant contends that according to the evidence that was at the time of the council's use of the land (exhibit B). It asserts in respect of car parking spaces that the council use of the site generated a demand of 50 spaces (applying the DCP exhibit 4) and an additional demand from the public when visiting the chambers. (Transcript 23 June p41). Council provided 29 spaces (Exhibit 9 - varies from 28 to 35 spaces). Accordingly, it submits that there was a shortfall of at least 21 spaces.
It submits that the car-parking shortfall, the demand for which was generated by the council use of the site may not be required to be made up by the applicant. Accordingly, the demand for car parking calculated by Mr Holdsworth is reduced from 62.9 spaces to a net demand of 37.9 spaces - allowing for the 21 spaces and the 4 spaces previously paid for - at Exhibit 8 p8 (AWS 160 to 183).
I do not accept the applicant's submission that Meriton is authority for the proposition that the Council or the Court in an appeal is required, in respect of imposing a monetary contribution under s 94 of the Act, to determine or give a credit for the peak workforce that may have occupied the site a point of time. I agree with the Council's submissions that the Court of Appeal in Meriton merely accepted that the Senior Commissioner determined that a credit should be granted for past industrial use on the facts of that case and that it was not appropriate to adopt in that case the cut off date for being populated as being that reflected in the 2001 census. I accept as the Council submits that the Court of Appeal did not deal with the question of how far back, if at all a Court should go in relation to determining the maximum population of a site.
I do not accept that there is any general principle that requires the Council or the Court in determining a monetary contribution to give a credit for the peak contribution or workforce that occupied a site at some date in the past.
In accordance with s 94B I need to be focused on "the net demand for public amenities and services generated by this development" In this case, this requires a determination of the existing demand based "...purely on the actual or deemed resident or workforce population of the relevant land at the time of the development application for it is only the future population that generates the demand in respect of which a monetary contribution can be required" per Tobias J Meriton at [59].
As a matter of law I do not need to go back to the council use of the site. Having regard to the facts and evidence before me I think it is appropriate to consider the present use of the site pursuant to the 1996 consent for the purpose of determining the population of the relevant land and the existing demand for public amenities and services in order to assess any net increase from the 2007 consent.
I accept as the council submits that in determining the net demand, on the evidence before me, a credit for the demand generated by the existing 90-bed hostel and 4 shops would be allowed. To go back further in this case would be unreasonable.
Car parking
The traffic experts Mr Begovic and Mr Holdsworh agree that the 2007 consent development will generate additional demand for parking. Some backpackers from the development will use cars (Survey Annexure F to exhibit 8).
They also agree that the 2007 consent proposes 460.4m2 floor area for the 4 existing shops and 5 new shops. The restaurants generate a total floor area of 142.07m2 and then there is the 316-bed hostel.
According to Mr Begovic the appropriate rate is 4.5 spaces per 100m2 of gross lease able floor area (GLFA). Based on the RTA traffic Guidelines (Exhibit 6). Mr Holdsworth uses a figure of 4.1 spaces per 100 metres GLFA. However, the expert use different GLFA figures in table 5.2 of the RTA guideline (Exhibit 6) that applies to shops.
I prefer Mr Begovic' s figure as being more reasonable on the evidence before me. It is closer to the requirements in the DCP2002- Part G exhibit 4 and the rates set out in table 5.2 of the RTA Guide for shops having less than 10,000m2. Mr Begovic assesses the car parking should be 1 space per 8 beds (lower than the requirement in DCP 2002 rate of 1 space per 4 beds) and two staff space. Mr Holdsworth 's evidence is 1 space per 4.8 beds for private rooms and 1 space per 11 beds for dormitory rooms.
I accept Mr Begovic' s assessment in addressing the demand generated by this development. Based on that evidence and a consideration of the competing submissions of the parties I think it is reasonable to require a contribution for a parking shortfall for 12.6 car spaces at $49,202.26 (unindexed) that calculates to $619, 948.
Administration
I accept the applicant's submission that the contribution for Administration should not be allowed on the facts and evidence before me.
The evidence does not establish a nexus between the development and the recoup of the costs for the new council chambers. In fact Mr McKenzie agreed with the proposition that the contribution for "Administration" as proposed by the council was unreasonable (at p100 line 48 Transcript 24/6/2012). 4.13.1 of the CP.
He then proceeded to calculate a reasonable contribution under the CP2005. I cannot accept Mr McKenzie's entirely speculative basis for calculating a contribution for the purpose of administration under 4.13.1 of CP2005 (p40 exhibit 7) as discussed at paragraph 96 of the RWS. It is as the applicant asserts based on assumptions and it is unsupported by the evidence before me. As a result I have no reliable evidence to support the imposition of a contribution for this item. Therefore, I have no choice but to disallow the contribution sought for Administration in the Schedule of contributions under condition 26 pursuant to s 94B (3).
Open space
The planners have different views about whether tourists demand open space as opposed to using it. Mr Smith is of the opinion that tourist's may use it if it is there but not demand it (transcript 24 /6/2011 p65 line 49).
Despite that difference in opinion Mr Smith is critical of the CP2005. He points out errors in the CP2005 and a lack of detail about the proposed works. His evidence is that without the detail in the CP2005 you cannot determine a nexus between contributions required for an alleged demand for open space and this development (AWS 86 - 99). With respect to nexus Mr Smith's evidence is that there are no open space facilities identified in the CP2005 and accordingly there is no demonstrated nexus with the development (Transcript 24/6/2011 p71 line 35 p72 line 27).
Mr McKenzie's evidence is that the development will demand open space - shire wide p2 (exhibit 7). However, Mr McKenzie was also unable to identify the works with any certainty under the CP 2005 (carried forward from the 1993 contributions plan (necessary to meet the population increase that occurred in 2001).
Despite the lack of nexus on the evidence the Council submits it is reasonable to require a contribution for open space for items identified in CP2005 albeit at a reduced rate reflecting an occupancy rate for tourists of 56% based on Mr McKenzie's evidence. It proffers Mr McKenzie's assessment for an open space contribution in the amount of $200,419.00 (indexed from 4 June 2004) as reasonable in the circumstances of this case to meet the demand for this development. Unfortunately, Mr McKenzie's evidence on this issue suffers the same absence of detail as the plan itself.
The CP2005 does not demonstrate nexus between this development and the "open space" demand generated as a result of this development. The applicant submits that if the Council wants to levy s 94 contribution then the Council must prepare a CP that identifies the increase in demand, propose specified facilities and then locates and costs the facilities and all items proving and demonstrating a nexus with the development. In the absence of a CP that meets these requirements then the Council can only assert general propositions, which are not able to satisfy the legal requirements for a levy under s 94.
I accept Mr Smith's evidence and the council's submission in respect of this item and disallow the contribution sought for Open Space under s 94B(3) of the EPA Act.
Civic and Urban Improvements
The applicant's planner Mr Smith gave oral evidence (p90 line 5 Transcript 24/6/2011) that there may be some demand for items listed for the civic and urban improvements for Byron Bay/Suffolk Park /Ewingsdale identified in s4.12.2 of CP 2005 (folio 857 of Exhibit 2).
Mr Mckenzie was more confident about demand he believed that development would generate a demand for public street signs, rubbish bins; bike racks, public toilets and footpaths (line 15 Transcript 24/6/2011). He assessed that a contribution in the amount of $49,166.00 was reasonable for this item having regard to CP2005.
I accept that there is a nexus between the development and a demand for this item and based on the evidence of Mr McKenzie believe the amount of the contribution is appropriate and that this item is reasonable under s 94B (3). Therefore, I accept a contribution of $49,166.00 for this item.
Surf Lifesaving
The applicant does not dispute a contribution for this item at $1187.21 therefore it is allowed under s 94B (3).
Cycleways
Based on the evidence tourist use bicycles. According to the survey (Annexure 2 of -Exhibit 7) 34 of the 71 persons staying in a backpacker hostel used a bicycle as a mode of transport.
The CP2005 does identify works, which might be used by this development. I do not accept, as the applicant contends, that the three items brought forward from the 1993 CP into the CP 2005 which propose inter town links have no nexus to the development. The location of the inter town links explored in the evidence (see Transcript 24/6/20110 at p84) did not in my opinion support a conclusion that there is no nexus between the proposed development and the bikeway network proposed under the CP2005. The various locations within Bryon, which need to be linked, include tourist destinations (see p77 Transcript 24/6/2011 at 41).
I accept Mr McKenzie's assessment (p2 of Exhibit 7) of a contribution in the amount of $46,000.00 to the shire wide cost of providing cycleways as reasonable under s 94B (3).
Roads
Both traffic experts agree the development will generate additional traffic. Although the applicant says the demand generated by this development will be negligible (AWS in Reply paragraph 73). It notes a number of errors with the CP2005 relating to car parking and traffic but says the most significant problem relates to the work identified in the CP2005 for the Byron Bypass.
According to the evidence the work is to build the Byron - By Pass around town centre Byron at a cost of $3,611,313. The council lodged a DA for the By Pass in 2001 but withdrawn the application in June 2010. The cost of the work is included in the 2005 CP. The other work identified in the plan relates to Bangalow Rd.
Both works include a s94 and council contribution. The applicant submits the council has abandoned the By Pass (Exhibit H) and therefore a contribution cannot be asked of this developer toward that work.
The council, however, maintains that the By Pass has not been abandoned for the reasons detailed at paragraph [32]. I accept the Council 's explanation. It cannot be assumed on the evidence before me that the By Pass will not proceed as proposed in the CP2005.
The nexus between tourist development and the demand for improvements or upgrading of roads is established in 4.9.of CP2005. Again the CP2005 includes works carried forward from 1993 plan or CP 2001 into the CP2005 (AWS) but I accept this can be done.
Despite that I also accept the applicant's submission that road trips generated by backpackers are not significance based on the Surveys at annexure 2 of the Joint report of the planners (exhibit 7). However, the development also contains restaurants and shops.
Mr Begovic and Mr Holdsworth agree that the traffic generated for the hostel should be equivalent to the traffic generation rate for motels as set out in the RTA Guide to Traffic Generating Development and they agree upon a rate of 3 trips per car space. In respect of shops they agree that table 3.2 of the RTA Guide is relevant. However, both adopt different figures and come to different conclusions about the assessed contributions albeit not terribly far apart in monetary terms.
Mr Holdsworth uses a figure in table 3.2 that is even less than the figure that is provided for a GLFA of 30,000- 40,000m2. Mr Holdsworh did not carry out a survey assessment of the GLFA in Byron Town Centre. The council contends the rate adopted by Mr Holdsworth is unreasonable or justified because it is even lower that the figure set out in table 3.2. It contends Mr Begovic's figure of 55.5 tips per 100 m2 of GLFA for shops is more reasonable having regard to the table in 3.2. In relation to the restaurant the RTA Guide to Traffic Generating Development it provides 60 trips per 100m 2 GFA (p3-11 Exhibit 6), which converted, to GLFA is 75 trips per 100 m2. Mr Begovic adopts this figure and Mr Holdsworth adopts 45 trips per 100m2 (which is lower than the rate for shopping centres having GLFA of 30,000-40,000m2 in table 3.2).
I accept the shops of Byron Town Centre are not the same as a "shopping centre" of a kind referred to in table 3.2. Therefore, I prefer Mr Begovic's assessment methodology.
The council submits that the assessment by Mr Begovic of an additional 339 trips per day at $750.23 per trip (unindexed) is reasonable in this case and calculates to a road contribution to $246,825.67. It includes 135.43 vehicle trips at 3 trips per space for the hostel component: (316 divided by 7 beds per space X 3 = 135. 43) the other detail is recorded in the RWS.
The Council's internal engineer assessed the road contribution in council's assessment report (folio 348 Exhibit 2). It also relies on the RTA Guide to Traffic Generating Developments for motel type developments, which have occupancy rates included. That report recalculates the traffic based on the reduced floor areas and reduces the estimated traffic from 291 trips to 280 trips. The council engineer at (folio 384 of Exhibit 2) supports a contribution based on with 280 trips at $765.92 = $214,457.64.
However, according to the evidence the RTA Guide to Traffic Generating Developments for motel type developments rates assumes 100% occupancy rate (AWS in Reply p15 at paragraph 53). This is at odds with the 56% occupancy rate identified by the Council for tourist development in the draft CP2005 and used by council in its revised Schedule of contributions at CWS paragraph [120] repeated at paragraph [11] of this judgment.
Accordingly, any contribution required must reflect an occupancy rate for the hostel of 56%, which on the evidence is accepted as the appropriate occupancy rate for tourist accommodation.
After a consideration of the above I have decided to accept the council engineer's calculation of the road contribution of $214,457.64 (folio 348 of Exhibit 2) subject the amendment to reflect an occupancy rate of 56%.
Conclusion
After a consideration of all of the evidence and the oral and written submissions of the parties I propose to uphold the appeal and amend the Schedule of contributions under condition 26 pursuant to s 94B (3) of the EPA Act as detailed above. I have also decided in the circumstances of this case to disallow any contribution for "Administration" or "Open Space".
The Council is directed to prepare a revised Schedule of contributions, which reflects my reasons for judgement and file and serve a copy of that Schedule within 7 days. Upon receipt I propose to make orders unless the parties need to address me in respect of the Schedule.
Susan Dixon
Commissioner of the Court
Amendments
27 November 2012 - Decision date amended from 04/06/2011 to 04/06/2012. Medium Neutral Citation number changed from [2011] NSWLEC 1393 to [2012] NSWLEC 1324
Amended paragraphs: Judgment Coversheet
Decision last updated: 27 November 2012
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