Wechsler v Ku-ring-gai Council

[2001] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:	Wechsler v Ku-ring-gai Council [2001] NSWLEC 216
PARTIES:	APPLICANT Robert Wechsler RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10053 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Question of Law :- development consent - appeal against conditions - validity of s 94 contribution plan
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 94 Environmental Planning and Assessment Regulation 1994
CASES CITED:	Billbergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94; Easeport Pty Ltd v Leichhardt Municipal Council (2001) 112 LGERA 376; King & Campbell Pty Ltd v Hastings Shire Council (2000) NSWLEC 11; Levadetes & Anor v Hawkesbury Shire Council (1988) 67 LGRA 190; Parramatta City Council v Peterson (1987) 61 LGRA 286; Stockland (Constructors) Pty Ltd v Baulkham Hills Shire Council (10911 of 1995, Pearlman J, 10 July 1996); S&I Investments Pty Ltd v Warringah Shire Council (40026 of 1997, Sheahan J, 7 July 1997)
DATES OF HEARING:	14/09/2001
DATE OF JUDGMENT:	09/28/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr R Wechsler (in person) RESPONDENT Deacons Solicitors

JUDGMENT:

ROBERT WECHSLER

Applicant

v

KU-RING-GAI COUNCIL

Respondent

JUDGMENT

Introduction

1. In these class 1 proceedings, the applicant, who represents himself, is appealing against the imposition of conditions 2, 48 and 56 on Council’s consent dated 31 October 2000 to DA 952/00, and has raised as a “preliminary question of law”:

… the validity of the Council’s S94 plan for car parking in the Gordon business district and in particular:

1 Whether or not the Council, having levied contributions based on a formula derived from and related to the cost of specified works has breached S94 of the EP&A act by not using or not intending to use those contributions for the execution of the specified works.
2 Whether or not a S94 plan reliant on a formula derived from the cost of specified works for the determination of the quantum of the levy and which expresses the intention not spend those contributions in a manner consistent with that formula complies with the Act.
3 Whether or not the Council’s Section 94 Contributions Plan for the Gordon Business Centre Car Parking adopted on October 27, 1998 is invalid after determination of 1 and 2 above.

2. Of the three conditions challenged in the appeal, the only one relevant to the determination of these preliminary questions is number 48, which is in the following terms:

The payment to Council of a contribution for carparking provision in accordance with the provisions of Section 94 of the Environmental Planning and Assessment Act 1979 and Ku-ring-gai Municipal Council’s Section 94 Contributions Plan No 1. Such contribution is calculated as $112,500.00 and is to be paid prior to the issue of a Construction Certificate.

The levy is based on:

St Ives $ 5,245.00 (per space)
Pymble (Alma Street) $14,543.00 (per space)
Roseville (Larkin Lane) $ 9,854.00 (per space)
Wahroonga $12,549.00 (per space)
West Lindfield Business Centre $ 7,422.00 (per space)
Gordon $12,500.00 (per space)

After completion of construction should it be demonstrated that carparking spaces can be provided on site designed to comply with Council’s Carparking Development Control Plan No.43 then a credit of $12500.00 per space will be refunded.

The s 94 Contribution Plan

3. Council adopted its Section 94 Development Contribution Plan for Gordon Business Centre Car Parking on 27 October 1998, to apply from 4 November 1998 (Exhibit K1).

4. As section 1 of that plan notes, in simple terms, s 94 of the Environmental Planning & Assessment Act 1979 (“EP&A Act”) provides that councils may “levy a financial contribution from developers towards offsetting the capital cost of providing public amenities and services, where the development creates an increase in demand for those amenities and services”.

5. The plan specifies the following relevant aims and objectives (p5, s2):

(a) to offset the demands created by additional development on the existing provision of public facilities and amenities by Council;
(b) to offset the marginal cost of the provision of public facilities and amenities to the wider community;
(c) to allow the continued level of provision of public facilities and amenities with the Ku-ring-gai Local Government Area, in particular, for Car Parking;
(d) to ensure that the capital cost of providing the amenities and services derived in the Plan are provided by developer contributions on an equitable, reasonable and affordable basis; and
(e) the aim of this plan is to maintain available public car parking for the Centre as a whole.

6. The plan, in Part B s 1 (p7) notes that “Section 94 contributions will be sought in the business zone for car parking provisions where the parking can not be satisfactorily provided on the site of the development itself” on the basis of a cash contribution, in the case of Gordon, of $12,500 per space.

7. The plan, in Part B s 2 (p 7), states that monies so collected are to be used, in the alternative, for:

(i) the provision of additional car parking within existing parking areas at an appropriate time;

(ii) the upgrading and/or maintenance of the existing car parking area;

(iii) providing funding towards the overall beautification rationalisation of street parking in the Gordon commercial/business centre, in accordance with any approved Main Street programme; or

(iv) works required to improve the circulation within the existing car parking area.

8. Part B s 5 (p 8) provides for a system of credits, and s 9 (p 9) provides for progress payments over a period of up to three years.

9. The plan then goes on to make the following comments:

The monies levied are to be used to provide the additional car parking required or for improvements as part of Council’s adopted Mainstreet Program related to car parking or for improvements to the existing car parking areas at Gordon Business/Commercial area whether for structure or redesign/upgrading. For this a preliminary cost has been adopted related to Pymble so as to establish an appropriate level of contribution.

On the basis of existing demand and the likely future demand for car parking, a site adjoining Car Park (CP No 10), at 4 Moree Street, Gordon has been identified for future extension of the existing car park. From this the cost has been calculated so as to establish an appropriate level of contribution.

Where future demand has been predicted too low to warrant levying of contributions or no suitable site exists within the Business Centre for the provision of car parking, or Council has determined a contribution could not be used for the improvement of car parking within the area, will require all car parking to be provided on the development site in accordance with Council’s Car Parking Code as amended by this Plan.

Prior to the preparation of this plan, Council has undertaken a comprehensive parking study in 1982. In addition, Ku-ring-gai Business Centres Study in 1987 included detailed parking surveys as does the original Section 94 report, which reviewed car parking facilities and options for that specific centre. These documents are available for viewing at Council offices.

10. Part B s 3 deals with “Established priorities for spending section 94 contributions” in the following terms:

On the basis of existing demand and the likely future demand for car parking due to future development potential of the existing Gordon Commercial Centre, Council has identified the site adjoining Council’s existing car park (CP No 10) at 4 Moree Street, Gordon, for which it wishes to levy Section 94 Contributions together with those matters referred to previously.

Council in 1985, purchased the subject property at a cost of $175,000. The total cost of developing a two (2) level structure, with separate access to each level at opposite ends of the combined site, providing 74 additional car parking spaces (37 each level) further extending Council’s car park (CP No 10) has been estimated to be $750,000.

The above is identified as an interim rate to allow for funds to be accumulated for general maintenance and upgrading of the existing car park with the possibility should sufficient funds be available for provisions of some structure within the area should that be deemed appropriate.

If sufficient funds are accumulated within a reasonable time from Section 94 monies Council will provide for the upgrading and improvement of the existing car parking area and traffic facilities within the area including Mainstreet improvements and car parking.

Council will also allocate funds as required from Section 94 Contributions to carry out appropriate car parking studies related to demand and location for additional car parking within the Gordon commercial zone.

11. Part B of the plan then goes on (in s 4) to establish the formula for contributions, and make the calculation of $12,500 per space.

12. Part C of the plan deals with payment procedure and review, and in s 3 (p16) provides for refunds, in the following terms:

Where it has been proven that a Section 94 Contribution has been levied for a purpose for which it has not been spent, within a reasonable time, consideration will be given to refunding the monies levied.

Consideration

13. The respondent’s primary submission is that the reasonableness of the contributions sought in condition 48 is a merits matter for determination in these class 1 proceedings, and the preliminary question of law procedure is not the appropriate way to seek a declaration of invalidity of a contribution plan. However, Mr Rigg was content for the court to deal with the preliminary questions in the terms in which Mr Wechsler had posed them.

14. The plan in this case was made pursuant to the provisions of the Environmental Planning & Assessment Regulation 1994, and cl 26(a) of the Regulation sets out the particulars which it must include. In particular, the various formulas to be used, and the works schedule of the specific public amenities and services proposed, etc. (cl 26(1)(d) and (g)) must be included in the plan.

15. The system of s 94 contributions has been thoroughly reviewed by the courts over the years.

16. The implications of cl 26(1), especially particular (g), and the general operation of plans, were considered, in the class 1 context, in Stockland (Constructors) Pty Ltd v Baulkham Hills Shire Council (No.10911 of 1995, Pearlman J, 10 July 1996). On the application of merits review principles to the operation of conditions, see Parramatta City Council v Peterson (1987) 61 LGRA 286, and an example in Billbergia Pty Ltd v Willoughby City Council [2000] NSWLEC 94, at pars 100-130. On the question of spending the money within a reasonable time, see King & Campbell Pty Ltd v Hastings Shire Council [2000] NSWLEC 11, especially par 64. On class 4 proceedings taken to obtain a refund see Levadetes & Anor v Hawkesbury Shire Council (1988) 67 LGRA 190, and my judgment in S & I Investments Pty Ltd v Warringah Shire Council (40026 of 1997, 7 July 1997).

17. In Easeport Pty Ltd v Leichhardt Municipal Council (2001) 112 LGERA 376, the Chief Judge dealt with class 4 proceedings concerning the validity of a s 94 contributions plan and the operation of cl 26 of the 1994 Regulation. The plan was challenged as invalid for failure to comply with the Regulations (d) and (g) of cl 26(1) in two respects – failure to provide sufficient and adequate particulars of “specific public amenities” and “an estimate of their cost”, and failure to provide particulars of “the formulas to be used in determining the s 94 contributions”. It identified “commercial carparking” as a work to which the contributions contemplated by the plan could relate. A rate per space was provided, but no specific carparking amenity identified. Various potential carparking sites were discussed (see pars 14ff).

18. In par 32, Her Honour set out the principles leading to the proper construction of 26(1)(g). Proposition (e) of Her Honour’s analysis says as follows:

However, the necessity to provide particulars of the works which are proposed to be provided by the council does not require the precise locations of those works to be set out in a contributions plan. In some cases, it may be possible to be precise; but in other cases, the precise locations of works may be dependent upon an estimate of future demand for the specific public amenity in question. The use of the term ‘proposed’ indicates a degree of flexibility, which is appropriate from a planning point of view. The word ‘proposed’ suggests that the specific public amenities are foreshadowed rather than fixed or binding. Such a construction accords with the wording of s 94(1), which permits the imposition of a condition requiring the payment of a monetary contribution where the proposed development ‘will or is likely to require the provision of or increase the demand for public amenities and public services’.

19. Her Honour concluded on that point (par 34 on pp 385-386):

… What is required is reference to the specific public amenity ‘proposed’ to be provided by the council, and in my opinion the potential availability of the Marion Street properties is sufficient to suggest what is ‘proposed’ by way of works which will constitute the provision of transport and access in the Leichhardt area so far as concerns the development the subject of the development consent.

20. In par 35, Her Honour went on to say that a precise costing of the provision of the amenity is not required by cl 26(1)(g):

…what is required is an estimate, and it is reasonable, in my opinion, for the Plan to provide that estimate by reference to a more detailed costing of the provision of public car parking elsewhere in the Leichhardt local government area. In other words, read broadly and not literally, the Plan states that it will cost on average an amount of $10,000 per space to provide public car parking in Rozelle, and that same estimate is appropriate for the provision of public car parking in the Leichhardt Town centre .

21. Her Honour concluded that sufficient and adequate particulars, as required by cl 26(1)(g), were provided in the plan before her in Easeport.

22. I respectfully adopt her Honour’s statements of principle and method of analysis, and adopt them as applicable to this case.

23. Accordingly, I must accept in this case the respondent Council’s submissions which are squarely based upon Easeport.

24. The subject plan was formulated on the basis of existing and likely future demand for carparking. A site adjoining an existing carpark was identified for future extension of that carparking, and that property was purchased. The cost of that project was the basis of the calculation of the per space amount in the plan.

25. The plan provides that funds collected will be initially allocated to upgrading and maintenance of the existing carpark, then the upgrading and maintenance of the existing carpark area and traffic facilities. This allows acceptable flexibility to the Council’s planning of future works, and, on the basis of Stockland and of Easeport, it is an appropriate way to address the matter.

26. I conclude that the s 94 plan has been made properly in accordance with the Act and Regulation. It contains the necessary particulars and a sufficient degree of certainty.

27. The applicant’s written submissions would require the court to fly in the face of established authority, apart altogether from its requirement to make declarations beyond jurisdiction.

Conclusion

28. In answer to the questions as posed, I hold that the s 94 contribution plan, relied upon by Council, is valid.

29. The appeal will be listed, for further callover and directions by the Registrar, on Friday 5 October 2001.