Satmell Holdings Pty Ltd v Blacktown City Council (No 2)

[2019] NSWLEC 1605

Land and Environment Court

New South Wales

Medium Neutral Citation:	Satmell Holdings Pty Ltd v Blacktown City Council (No 2) [2019] NSWLEC 1605
Hearing dates:	30 October 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1)   The Applicant is granted leave to rely on the amended plans filed with the Court on 19 June 2018. (2) The objection pursuant to cl 4.6 of Appendix 6 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking to vary the maximum height standard at cl 4.3 of Appendix 6 to the instrument is upheld. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No. SPP – 17 – 00012 for demolition of the existing structure, retention of six trees, subdivision to create two development lots, construction of a three storey residential flat building containing 48 apartments and the construction of 87 townhouses, construction and dedication of new public roads, landscaping and associated stormwater drainage works, subject to the conditions marked Annexure “A”. (5)   The exhibits from the remitter proceedings are returned.
Catchwords:	DEVELOPMENT APPEAL – New residential subdivision and development – remitted matter – variation to height control – determination of the relevant contribution rate
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Local Infrastructure Contributions Directions) 2012 Environmental Planning and Assessment (Local Infrastructure Contributions Directions) 2012 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Cases Cited:	Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188 Satmell Holdings Pty Ltd v Blacktown City Council [2018] NSWLEC 1256 The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36
Texts Cited:	Assessment of Contributions Plan 22 for Rouse Hill (Area 20 and Riverstone East): Blacktown City Council, IPART, 2018 Macquarie Dictionary Practice Note: Local Infrastructure Contributions January 2019
Category:	Principal judgment
Parties:	Blacktown City Council (Respondent) Satmell Holdings Pty Ltd(Applicant)
Representation:	Counsel: S Pritchard SC (Respondent) A Galasso SC (Applicant)   Solicitors: Clayton Utz (Respondent) Mills Oakley (Applicant)
File Number(s):	2017/266013
Publication restriction:	No

Judgment

1. COMMISSIONER: I have been given this matter on remitter from the decision of Pepper J in Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 (the 56A Judgment), which at [77] set aside my decisions and orders of 31 May 2018 and 24 July 2018 respectively.

2. Whilst the proceedings have been remitted, the 56A Judgment makes no finding of error in the factual outline of the proceedings, the site and locality, the planning controls, the summary of public submissions, the assessment of the requested variation to the height standard, the merit assessment of the application including the stormwater design or the findings on the contested conditions (excluding the conditions relevant to the imposition of development contributions). As such, I adopt [1]-[75] and [129]-[154] of the judgment, Satmell Holdings Pty Ltd v Blacktown City Council [2018] NSWLEC 1256 (‘Satmell Holdings v Blacktown 2018’) in this judgment without duplication for the sake of brevity.

3. At the remitter hearing, no further expert evidence was called by the parties and the matter proceeded based on the previous evidence, supplemented by written and oral submissions.

4. It is agreed between the parties that the principal contested issue remains the relevant contribution rate that should be applied to the proposed development.

Background

5. On 28 June 2019, Pepper J delivered two separate, but related judgments in relation to:

1. the validity of Contributions Plan No. 22 – Rouse Hill Works and Contributions Plan No. 22 – Rouse Hill Land (‘the Contributions Plans’);

2. the validity of a determination made in a Class 1 appeal in relation to the applicable contribution payable for development on land subject to the Contribution Plans.

6. The first judgment determined that both of the Contribution Plans were validly made and in force from 7 March 2018, and relevantly at the date of the determination of the appeal: Satmell Holdings v Blacktown City Council [2019] NSWLEC 94 (‘Satmell Holdings v Blacktown 2019’)

7. The second judgment (the 56A Judgment) upheld the appeal under s 56A of the Land and Environment Court Act 1979 (LEC Act) and made orders that:

1. set aside the decision and orders made in Satmell Holdings v Blacktown 2018; and

2. remitted the proceedings to be determined in accordance with the reasons for the judgment.

The rates

8. Contributions Plan No. 22 – Area 20 (the Area 20 Plan) had a contribution rate of $26,132.98 per lot.

9. Consistent with Satmell Holdings v Blacktown 2019, the contributions plans applicable to the development application are:

• Contributions Plan No. 22- Rouse Hill Works (CP22W); and

• Contributions Plan No. 22- Rouse Hill Land (CP22L).

Collectively ‘the contribution plans’. Application of these plans to the subject development application would result in a contribution rate of $52,697.61 being levied (Exhibit 4).

10. Applying the Environmental Planning and Assessment (Local Infrastructure Contributions Directions) 2012 (‘the Ministerial Direction’), as amended, the following capped rates apply to the development and reduce the levied contributions:

• from 1 January 2018 to 30 June 2018: $35,000 per lot

• form 1 July 2018 to 30 June 2019: $40,000 per lot

• from 1 July 2019 to 30 June 2020: $45,000 per lot

11. As part of their submissions, the Applicant tendered a table that compared the differing contributions rates and their application to the proposed development. This table is reproduced below:

Stage	Council (@$45,000)	Applicant (@CP 22)	@$35,Q00 at hearing
A (Roads)	0	$291,339	0
B (lanes), Townhouses 10-39	$1,350,000	$814,588	$1,050,000
C - Townhouses 8,9,40-66	$1,305,000	$726,204	$1,015,000
D - Townhouses 67-87	$945,000	$498,472	$735,000
E-Townhouses 1-7	$315,000	$220,005	$245,000
F-RFB	$2,160,000	$977,342	$1,680,000
Total	$6,075,000	$3,527,950	$4,725,000

(Applicant’s written submissions)

The Applicant’s position

12. The Applicant seeks the imposition of a contribution amount by way of condition of consent at a rate less than that which is applicable to the development by application of the Ministerial Direction (Applicant’s written submissions, p 3).

13. The Applicant submits that s 7.13 of the Environmental Planning and Assessment Act 1979 (EP&A Act) empowers the Court on appeal to disallow or amend a condition imposed under s 7.11 of the EP&A Act if it is unreasonable in the particular circumstances of the case.

14. Section 7.11 of the EP&A Act requires the payment of a monetary contribution towards the provision or improvement of amenities or services, subject to the satisfaction of a number of matters. These matters are not in dispute. Section 7.13 states (emphasis added):

7.13   Section 7.11 or 7.12 conditions subject to contributions plan

(cf previous s 94B)

(1)  A consent authority may impose a condition under section 7.11 or 7.12 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).

(2)  However, in the case of a consent authority other than a council:

(a)  the consent authority may impose a condition under section 7.11 or 7.12 even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b)  the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

(3)  A condition under section 7.11 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.

(4)  A condition under section 7.12 that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.

15. The Council also accepts that this power is available to the Court: (Respondent’s written submissions, p 3).

16. The Applicant submits that the Macquarie Dictionary definition of “unreasonable” is relevant to the Court’s consideration. The Macquarie Dictionary defines “unreasonable” as follows:

“1. Not reasonable; not endowed with reason

2. Not guided by reason or good sense

…

4. Not based on or in accordance with reason or sound judgement

5. Exceeding the bounds of reason; immoderate; exorbitant”

(Applicant’s written submissions, p 4)

17. The Applicant argues that having regard to the circumstances of the case “the Court ought to be readily satisfied that the imposition of a condition requiring the payment of a contribution in the amount of $45,000 per lot is unreasonable and ought to be amended pursuant to s7.13(3)” (Applicant’s written submissions, p 5).

18. The Applicant argues that a contribution rate of $45,000 per lot is unreasonable on three bases:

1. the Contribution Plans are inadequate and contain errors;

2. that there is uncertainty and lack of public confidence in the plan making process; and

3. on the basis of timing.

19. These arguments are outlined in the following.

The Contribution Plans are inadequate and contain errors

20. The Applicant argues that the findings of the “Assessment of Contributions Plan 22 for Rouse Hill (Area 20 and Riverstone East): Blacktown City Council” prepared by the Independent Pricing and Regulatory Tribunal (the IPART review) identify errors and inconsistencies in the Contributions Plans. The Applicant summarises these errors as “… the costs allocated to works, administration, land, the double counting of land acquisition costs and incorrect apportionment based on the projected population for the precinct” (Applicant’s written submissions, page 5).

21. Mr Galasso SC notes that the collective value of the reduction in costs arising from the IPART review are:

“- A reduction of the costs allocated to works and administration by $110,039,598.00; and

- A reduction of the cost allocated to by $44,953,196.00.”

(Applicant’s written submissions, p 6)

22. Consistent with the decision of Moore AJ (as his Honour was then) in Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188 (“Colonial Credits Pty Ltd v Pittwater Council”), at [44] the Applicant argues that the IPART finding of errors is a sufficient basis for a finding of unreasonableness in the Contributions Plans application to the site.

23. The Applicant submits that

“a contribution amount, which reflects those in the previous contribution plan is certain, has been through the contemplated IPART process and incorporates changes recommended by the Minister.”

(Applicant’s written submissions, p 6)

On this basis, the Applicant seeks the Court to utilise s 7.13 of the EP&A Act to amend the contribution rate to $26,132.98 per lot as they argue that to apply the current Contributions Plans, which contain errors, is unreasonable.

There is uncertainty and a lack of public confidence in the plan making process

24. The Applicant argues that the Contributions Plans are being sought to be applied by the Council without the errors identified by the IPART review being corrected. Mr Galasso notes that at the conclusion of their review in December 2018, IPART recommended a reduction in costs across the Contributions of $154.99 M across both of the Contribution Plans (refer to [21]).

25. Further, the Applicant argues that the public, relying on the review process contemplated by the Ministerial Direction and the Local Infrastructure Contributions Practice Note (2019) (‘the Practice Note’), would expect those errors to be corrected and the plan adopted by the Council prior to being applied.

26. Mr Galasso notes that this process is also consistent with the resolution of the Council on 21 February 2018:

“1. Adopt revised Section 94 Contributions Plan No. 22L- Rouse Hill Land and 22 W- Rouse Hill Works.

2. Write to submitters advising of Council’s decision.

3. Submit both plans to IPART and the Minister for Planning and Environment for assessment and approval.”

27. The Applicant repeats their submissions at [23].

Timing

28. The Applicant argues that at the time of the initial proceedings (Satmell Holdings v Blacktown 2018), the relevant amounts of contributions applicable under the Contributions Plans were capped at $35,000 per lot, pursuant to the Ministerial Direction.

29. The Applicant submits that

“in circumstances where the determination of the merit issues in the DA was finalised on 1 May 2018 and the only activities which have occurred since then is the judicial review of the Contributions Plans, it is fair and reasonable to impose the lower contribution amount.”

(Applicant’s written submissions, p 6)

30. Mr Galasso submits that two other factors are relevant to the Applicant’s arguments of unreasonableness as they relate to timing. They are:

1. the adoption of a new Practice Note: Local Infrastructure Contributions January 2019; and

2. the amendment to the Ministerial Direction gazetted in January 2019. He notes that the amendment inserted the following clause:

“(5) To avoid doubt, this clause continues to apply in relation to land to which a specified contribution plan as in force at 28 July applies (or applied) even if:

(a) that plan is amended or repealed; or

(b) any new or amended contribution plan that applies to the land also applies to other land.

Accordingly, a monetary contribution may be imposed as a condition of consent for development on any such land, if allowed by the applicable contributions plan up to the maximum amounts set out in Items 1 to 4 in the table to sub clause (2), irrespective of whether the amended plan or new plan is an IPART reviewed contributions plan.”

31. Mr Galasso submits that if the preceding provisions had been in place in May 2018, the Applicant would not have adopted the position it took at the time of the Class 1 appeal. He notes that the Council, through the Mayor, sought these amendments from the Hon. Anthony Roberts MP (Minister for Planning, Minister for Housing, and Special Minister for State), in response to the Court’s findings in Satmell Holdings v Blacktown 2018.

32. Mr Galasso notes that the decisions of Pepper J in Satmell Holdings v Blacktown 2019 and the 56A Judgment were handed down on 28 June 2019 which was the last business day in which the $40,000 per lot contribution rate applied.

33. Further, Mr Galasso submits that the arguments before the Court in Satmell Holdings v Blacktown 2018 remain relevant to the Court forming a view that the development contributions should be amended on the basis that they are unreasonable in the circumstances.

34. On the basis of the preceding arguments, the Applicant’s primary position is that the Court should impose a contribution amount of $26,132.88 per lot. Their alternative position is the imposition of a contribution amount of $35,000 per lot, representing the contribution amount “inforce at the time the Development Application was originally determined and the assessment of the substantive application was undertaken” (Applicant’s written submissions, p 8).

The Council’s position

35. The Council seeks the imposition of a condition requiring payment of contributions in accordance with the Contribution Plans and the Ministerial Direction, as they currently apply. That is, a capped contribution of $45,000 per lot. Council notes that the parties are agreed that this is the currently rate applicable to the development.

36. Whilst the Council agrees that the Court has the power to impose a contribution at a different rate to that mandated by the Contributions Plan or the Ministerial Direction, the Council does not accept that the Applicant has established that any reduction in contributions should be made. Ms Pritchard SC argues that the Applicant ‘bears the persuasive burden’ of establishing what any reduction in contributions should be: The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 at [11].

37. The Council concludes that the Court would not be persuaded by the arguments of the Applicant that the Court should impose a contribution amount of $26,132.88 per lot on the following grounds:

1. That despite the Applicant seeking for the Court to levy a contribution rate of $26,132.98 per lot; it has not provided the Court any submissions or documents to support the application of the rate.

2. There is no evidence before the Court as to why the earlier contribution rate, under the Area 20 Plan is more appropriate in the circumstances of the case. In the absence of such evidence, the Council argues that the Contributions Plans are the best evidence of demand for land, services and works.

3. Applying the test outlined by Moore AJ in Colonial Credits Pty Ltd v Pittwater Council, the Council submits:

“The superseded Area 20 Plan does not apply to the site the subject of the DA. Accordingly; as ‘the power to set aside a contributions condition… must find a basis of unreasonableness in the contributions plan’s application to the site’ [Colonial Credits Pty Ltd v Pittwater Council] it is the Contributions Plans which govern, and the mere substitution of the contribution rate under a superseded plan is not permitted by s 7.13(3) of the EP&A Act”

(Respondent’s written submissions, p 4).

4. That even if the IPART review is accepted to be correct (which the Council does not accept), ‘that would not justify the application of the rate under the Area 20 Plan as a matter of law or by means of monetary calculation’ (Respondent’s written submissions, p 4).

38. The Council concludes that the Court would not be persuaded by the arguments of the Applicant that the Court should impose a contribution amount of $35,000 per lot, the Applicant’s secondary position, on the following grounds:

1. that neither the IPART review, or its recommendation for a reduction in the quantum of overall contributions levied by the Contribution Plans, are determinative of whether the contribution rate of $45,000 per lot is unreasonable. Ms Pritchard notes that Council is in dialogue with IPART and that the Applicant overstates IPART’s criticisms of the Contributions Plans. Ms Pritchard refers to the table in Tab 5 of Exhibit A which details the Council’s response to each of the IPART review recommendations.

2. Further, the Applicant has provided no evidence or analysis of the consequences of the IPART review to the rates under the Contribution Plan, and how those rates (if reduced by the implementation of IPART’s recommendations) would apply to the proposed development. The Respondent’s written submissions note:

“… if all of the IPART review recommendations were to be accepted by the Minister, and Council was required to comply with them (and Council contends this ought not be the case), according to Council’s present assessment of the IPART review recommendations, the current rate to be applied under the Contributions Plan to the Applicant would be $41,447 per lot.”

(Respondent’s written submissions, p 5)

Ms Pritchard concludes that the IPART review is not irrelevant, but it does not provide the basis for the Applicant’s submission that the rate should be adjusted to $35,000 per lot.

3. Further, she submits that significantly the Applicant’s submission in relation to the IPART review does not: firstly, establish unreasonableness arising from the application of the Contribution Plan to the development application and the site; nor secondly, calculate the effect of the IPART review on this specific development application or the contributions rate that results from the IPART review.

3. Relying on [70] of the Satmell Holdings v Blacktown 2019 decision, Ms Pritchard submits that there is no foundation to the Applicant’s criticism that there is uncertainty and a lack of public confidence in the plan making process as it applies to the Contribution Plans. The relevant paragraph of the decision is extracted below:

“[70] In the present case, the preparation of the Contributions Plans complied with cl 26 of the EPA Regulations. I do not accept on the evidence before the Court that the Council did not prepare the Contributions Plans not “having regard to any relevant practice notes” (cl 26(1)). Nor did the Council approve the Contributions Plans in a manner inconsistent with any direction given to it under s 7.17 of the EPAA (cl 26(3)).”

39. Ms Pritchard argues the Court should reject the Applicant’s submissions that the amount of contributions should be set at the rate that was applicable at the time of Satmell Holdings v Blacktown 2018 (i.e. $35,000 per lot). Her reasoning is that: firstly, the Applicant could have accepted that rate at the time, and secondly, that at the time of the 56A Judgment, the Applicant pressed for the matter to be remitted in full knowledge of the implications of the Ministerial Direction. Ms Pritchard argues:

“There is nothing in the circumstances in which the Applicant now finds which arises from any unreasonableness in how the Contributions Plans apply to the site. Rather, it complains about the consequences of its own strategic decisions in the litigation. In accordance with the decision in Colonial Credits, those consequences are not a matter which may be considered by the Court under s7.13(3). It is entirely unorthodox for contributions to be applied at the rates which apply when a development application is determined. Presently, by operation of Pepper J’s orders in Blacktown [Satmell Holdings v Blacktown 2019] (setting aside the decision and orders of Dickson C dated 31 May 2018 and 24 July 2018, and remitting the proceedings to be determined in accordance with her Honour’s reasons for judgement), the DA remains undetermined, and so the Ministerial Direction requires that the $45,000 per lot contribution rate cap apply to the DA.”

(Respondent’s written submissions, p 6)

40. Finally, Ms Pritchard argues that for the Applicant to describe the application of the Contributions Plan as a ‘windfall’ or ‘opportunistic grab’ by the Council in the absence of evidence from the Applicant which establishes circumstances of unreasonableness is a misrepresentation. Ms Pritchard presses that the Council seeks only to apply the Contribution Plans as they properly apply at the time of the determination of the development application.

41. Ms Pritchard concludes that the Applicant has not demonstrated that the applicable Contributions Plan is unreasonable for the purposes of s 7.13(3) of the EP&A Act in this case. She submits that the Respondent’s version of Condition 3.10 should be imposed by the Court in its determination of the development application.

Findings

Preconditions

42. As stated in my decision, Satmell Holdings v Blacktown 2018 at [42], I find that I am satisfied that:

1. The written request demonstrates that compliance with the maximum building height development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the non-compliance (cl 4.6(3)(a) of Appendix 6 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b)).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) are met.

4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) are met.

5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

43. The states of satisfaction required by cl 4.6 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

44. There are no merit issues in dispute between the parties and I am satisfied that consent should be granted to the development application.

Development Contributions

45. In this matter, I am not satisfied that the Applicant has provided relevant evidence or argument that the applicable conditions under s 7.11 of the EP&A Act should be amended pursuant to s 7.13(3) of the EP&A Act.

46. I accept the Council’s submission that Condition 3.10 should be imposed as follows:

“3.10 Section 7.11 Contributions under Section 7.17 Directions.

3.10.1 The following monetary contributions pursuant to Section 7.11 of the Environmental Planning & Assessment Act 1979 must be paid.

PLEASE NOTE: Payments must be made by BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. Payments of the full amount by credit card or EFTPOS are accepted. However, payments by credit card or EFTPOS over $10,000.00 are levied a 3% surcharge on the whole amount and cannot be split between different credit or EFTPOS cards.

Under the Section 94E Direction (now s 7.17) issued by the Minister for Planning on 17 July 2017, Council must not impose a condition of development consent under Sections 7.11 (1) or 7.11 (3) or the Act requiring the payment of a monetary contribution exceeding $45,000 for each dwelling authorised by the development consent, or in the case of a development consent that authorises the subdivision of land into residential lots, exceeding $45,000 for each residential lot/dwelling authorised to be created by the development consent. The Section 7.11 contributions payable below have been assessed in accordance with this Direction:

No. of intended dwellings: 135

Contribution: $6,075,000.00

These contributions are permitted to be paid in the separate stages as identified by the Development Staging Plan TP00.04a, Revision A, dated 18.06.2018 in accordance with the parameters below. Payments must be made prior to the issue of a Construction Certificate for building works for each relevant stage. The payment of staged contributions is based upon the following parameters:

Stage A – Roads

Number of intended dwellings/apartments: 0 dwellings/apartments

Total Developable Area: 0.4910 hectares

Additional Population: 0 persons

Contribution: $0.00

Stage B – Internal lanes and townhouses 10 - 39:

Number of intended dwellings/apartments: 30 dwellings/apartments

Total Developable Area: 0.4938 hectares

Additional Population: 57.8 persons

Contribution: $1,350,000.00

Stage C – Townhouses 8, 9, 40 - 66:

Number of intended dwellings/apartments: 29 dwellings/apartments

Total Developable Area: 0.3494 hectares

Additional Population: 57.5 persons

Contribution: $1,305,000.00

Stage D – Townhouses 67 - 87:

Number of intended dwellings/apartments: 21 dwellings/apartments

Total Developable Area: 0.2333 hectares

Additional Population: 39.9 persons

Contribution: $945,000.00

Stage E – Townhouses 1 – 7:

Number of intended dwellings/apartments: 7 dwellings/apartments

Total Developable Area: 0.0955 hectares

Additional Population: 18.1 persons

Contribution: $315,000.00

Stage F – Residential Flat Building:

Number of intended dwellings/apartments: 48 dwellings/apartments

Total Developable Area: 0.4040 hectares

Additional Population: 87.2 persons

Contribution: $2,160,000.00”

47. My reasoning is as follows:

1. The power at s 7.13(3) of the EP&A Act arises from a condition levied under s 7.11 of the EP&A Act. Section 7.13(1) confirms that the imposition of a condition of consent that requires payment of a contribution can only occur ‘if it is a kind allowed by, and is determined in accordance with, a contributions plan’. The decision of Pepper J in Satmell Holdings v Blacktown 2019 establishes the relevant plans are the Contributions Plans.

1. By dint of cl 32(2)(a) of the Environmental Planning and Assessment Regulation 2000, the Area 20 Plan is repealed. It is therefore not a relevant Contribution Plan from which a contribution can be levied or varied. Further, s 7.13(3) does not allow for substitution of one Contribution Plan for another.

2. I am not satisfied that the Applicant has provided an evidentiary basis that establishes the unreasonableness of the application of the Contribution Plan in the circumstances of the case or the appropriateness of the rate of $26,132.98 per lot if unreasonableness was established.

2. I accept the submission of the Council that in the absence of evidence from the Applicant, the Contribution Plans are the best evidence of demand as from 7 March 2018 when the contributions came into effect (Respondent’s written submissions, p 4).

3. I note that the decision of Pepper J in Satmell Holdings v Blacktown 2019 clarified the advisory scope of the role of IPART. I accept the submission of Ms Pritchard that

“neither the review of the Contributions Plans by IPART, or its recommendation for a reduction in the quantum of overall contributions payable pursuant to those plans, is determinative of whether a contribution rate of $45,000 per lot is unreasonable”

(Respondent’s written submissions, p 4).

4. Whilst the Applicant may argue that the IPART review has identified errors and that if its recommendations were adopted by the Council or mandated by the Minister may result in a lower contribution rate, they fail to provide evidence of what that rate would be and how it would apply to the subject site.

1. Further, I note that Mr Galasso makes such a submission from the bar table, and adopts the calculation of the Council of some $41,447 per lot, but there is no evidence tendered in the proceedings to support this submission.

2. I understand from the Respondent’s written submission that the contribution rate of $41,447 per lot is derived based on the adoption of all of the recommendations of the IPART review. The table provided at Tab 5 of Exhibit A does not support a conclusion that if the Contribution Plans are amended they would be amended by the adoption of all of IPART’s recommendations.

5. Finally, if the Court accepts submission of the Council that IPART and the Council have had ongoing discussions and a number of the previously contested items in the Contribution Plans are now agreed, it is unclear how the IPART review will affect the contributions levied, if at all, during the period that the ‘cap’ applies in accordance with the Ministerial Direction. I note that a copy of the itemised areas of dispute between the Council and IPART is provided at Exhibit 2 and a review of this document highlights a number of areas of adjustment by both parties since the publication of the IPART Review. I note that the development contribution that applies to the proposed development without the ‘cap’ is $52,697.61 per lot, substantially higher than the current ‘cap’ of $45,000 per lot. Any amendment, if undertaken, may not reduce the applicable contribution below the cap. In the absence of expert evidence, this submission remains speculative.

1. I am satisfied it is not appropriate to utilise the power at s 7.13(3) of the EP&A Act to amend contributions on the basis of the IPART review for the preceding reasons and in the absence of expert evidence.

6. I accept the submission of Ms Pritchard and adopt her reasoning at [38(4)] that there is no merit to the argument by the Applicant that there is uncertainty or lack of public confidence in the making of the Contribution Plans. I am not persuaded that these are sufficient grounds to amend the contributions on the basis they are unreasonable in the circumstances of the case.

7. I reject the Applicant’s submission that the effect of the elapsing of time arising from the progress of the various proceedings in relation to the subject development application are particular circumstances that make the imposition of the relevant Contributions Plans unreasonable.

1. I accept the reasoning of the Respondent, and adopt their submissions, at [39] that consistent with Colonial Credits Pty Ltd v Pittwater Council, the elapsing of time is not a relevant circumstance that arises from the application of the Contributions Plan to the site. I am satisfied that those circumstances arise from the litigation decisions taken by the Applicant.

2. Importantly, the effect of the Ministerial Direction is a staged increase in development contributions applies to each development site across the Rouse Hill precinct. In my view, this staged increase over time is not a ‘particular circumstance’ as required by s 7.13(3) of the EP&A Act.

3. Further, Colonial Credits Pty Ltd v Pittwater Council at [48] makes it clear that the basis of the finding that the contribution is ‘unreasonable’ under s 7.13(3) of the EP&A Act is not in the context of

“… some other burden imposed on the beneficiary of the development consent where that burden is said to be unreasonable but has no foundation whatsoever in the contributions plan itself.”

4. I am not persuaded that it is appropriate to utilise the power at s 7.13(3) of the EP&A Act to amend contributions on the basis that the substantive assessment of the application occurred on 1 May 2018 and that the contribution that applied at that time should be imposed. I reject the Applicant’s submissions on this ground.

8. I am satisfied that the timing implications (as put by the Applicant) are an outcome of the judicial review of the Class 1 decision by the Respondent and the concurrent Class 4 proceedings. I am not persuaded that this elapsing of time (and the correlating increase in development contributions) is a circumstance of the case that is unreasonable in the terms of the definition in the Macquarie Dictionary.

Orders

48. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans filed with the Court on 19 June 2018.

2. The objection pursuant to cl 4.6 of Appendix 6 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking to vary the maximum height standard at cl 4.3 of Appendix 6 to the instrument is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. SPP – 17 – 00012 for demolition of the existing structure, retention of six trees, subdivision to create two development lots, construction of a three storey residential flat building containing 48 apartments and the construction of 87 townhouses, construction and dedication of new public roads, landscaping and associated stormwater drainage works, subject to the conditions marked Annexure “A”.

5. The exhibits from the remitter proceedings are returned.

……………………….

D M Dickson

Commissioner of the Court

Annexure A: Consent Conditions

Annexure A (364 KB, pdf)

Decision last updated: 13 December 2019