Serohs Holdings Pty Ltd v Byron Shire Council

[2010] NSWLEC 1152

Land and Environment Court

of New South Wales

CITATION:	Serohs Holdings Pty Ltd & Anor v Byron Shire Council [2010] NSWLEC 1152
PARTIES:	APPLICANTS Serohs Holdings Pty Ltd Ocean Shores Properties Pty Ltd RESPONDENT Byron Shire Council
FILE NUMBER(S):	11023 of 2009
CORAM:	Pearson C
KEY ISSUES:	CONSENT ORDERS :- Development consent Conditions Development contributions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
CASES CITED:	Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165
DATES OF HEARING:	19 May 2010
EX TEMPORE JUDGMENT DATE:	19 May 2010
LEGAL REPRESENTATIVES:	APPLICANTS Mr N Howie, solicitor Wilshire Webb Staunton Beattie RESPONDENT Mr A Seton, solicitor Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C

19 May 2010

11023 of 2009 Serohs Holdings Pty Limited & Ocean Shores Properties Limited v Byron Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against condition 23 imposed by Byron Shire Council (the Council) on Development Consent No 10.2007.701.1 issued by the Council on 23 April 2009, for a commercial development comprising alterations and additions to the Ocean Shores shopping centre.

2 The development consent was modified on 7 December 2009 under s 96 of the Act to authorise the undertaking of the work approved by the original consent granted on 23 April 2009 in two stages.

3 The particular condition in dispute in these proceedings is condition 23, which imposed on the applicants a requirement to pay certain developer contributions under s 94 of the Act. The modification of the consent on 7 December 2009 included condition 23 but altered it to so as to require the payment at stage 2 of the work to be undertaken. The particular contributions originally imposed totalled $678,783.82 made up of contributions required in respect of Roads ($608,446.87), Civic and Urban Improvements ($41,581.26) and Administration ($28,755.69).

4 The matter was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). That conference did not result in an agreement pursuant to s34(3) of the Court Act and the conciliation conference was terminated. The parties have now reached agreement, and the matter is before me for consent orders.

5 The relevant contributions plan for the purposes of s 94 of the Act is contained in the Council’s bundle of documents, and contains provisions for determining the basis on which contributions are required and the amounts.

6 The Council’s solicitor, Mr Seton, has identified that in relation to the component of the development contributions imposed by condition 23 in respect of Civic and Urban Improvements, the Council recognises that no contribution should have been levied for this purpose because under the Section 94 Development Contributions Plan 2005 the rate for retail developments is nil for that component.

7 In relation to the development contribution required for Administration, Mr Seton for the Council has stated that the Council recognises that the original calculation was based on the rate for commercial premises rather than retail development.

8 In relation to the component for Roads Mr Seton has identified that the amount now before the Court in the consent orders proposed has been calculated on the basis of a number of trips generated each day by employees and on other non-residential trips, for example deliveries, rather than the total number of trips generated by the increase in floor space that is approved in the development consent.

9 There is an issue as to the appropriate basis on which to determine this element of the development contributions as the s 94 development contributions plan is drafted. However, for the purposes of the consent orders that are proposed today the Council and the applicants are in agreement that the basis for the contribution and amount for Roads is a reasonable contribution in the circumstances.

10 The total amount now proposed as a contribution for Roads and for Administration, to be inserted as a Schedule to the conditions, is $148,436.29, being $133,677.03 for Roads and $14,759.26 for Administration.

11 The relevant provision in the Act for the purposes of this appeal is s 94B(3), which provides:

(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.

12 As confirmed by the Court of Appeal in Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165, the Court on appeal has broader powers than those conferred on the Council under s 94B. Having heard from Mr Seton, and from Mr Howie on behalf of the applicants, as to the basis on which the contributions have been calculated, I see no basis on which to disagree with the parties’ agreement that the contribution for the Roads component is reasonable in the circumstances and that the contribution for Administration is both in accordance with the contributions plan and a reasonable contribution in the circumstances.

13 Accordingly, I make the following orders by consent.

1. The appeal is upheld.
2. The Court grants development consent in terms of the development consent No 10.2007.701.1 granted 23 April 2009 for Commercial Development comprising alterations and additions to Ocean Shores Shopping Centre at lot 1 DP 626518, Lot 0 SP 19431, Lot 22 DP 860923, Rajah Road, Ocean Shores, 84 Rajah Road Ocean Shores, 82 Rajah Road Ocean Shores as amended 7 December 2009 subject to the deletion of the Schedule of Development Contributions referred to in condition 23 and its replacement by the Schedule of Development Contributions in Annexure A to these orders.
3. Exhibit 1 is retained.

___________________

Linda Pearson
Commissioner of the Court
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