Wilson v MidCoast Council - [2018] NSWLEC 1489

Land and Environment Court

New South Wales

Medium Neutral Citation: Wilson v MidCoast Council [2018] NSWLEC 1489
Hearing dates: 11 – 12 September 2018
Date of orders: 18 September 2018
Decision date: 18 September 2018
Jurisdiction: Class 1
Before: O’Neill C
Decision:
(1) The appeal is upheld.
(2) Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under the Section 94 Development Contributions Plan Forster District of $117,156.48 and a total levy contribution of $117,955.75, at the date of these orders.
(3) The exhibits, other than Exhibits 1, 3, 4, A and B, are returned.

Catchwords: APPEAL: modified development consent granted for a service station and convenience store; appeal against the terms of a condition of consent requiring a levy contribution under s 94; whether the formula used to calculate the monetary contribution for a petrol station and convenience store should include a discount for passing trade trips; whether there is power to modify the terms of the condition; whether the condition is unreasonable in the particular circumstances of the case.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502
The Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1
Texts Cited: RMS Guide to Traffic Generating Developments
Section 94 Development Contributions Plan Forster District
Category: Principal judgment
Parties: Robert Leo Wilson (Applicant)
Mid-Coast Council (Respondent)
Representation:
Counsel:
S Nash (Applicant)
H Irish (Respondent)
Solicitors:
MRM Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s): 2017/308265
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of a condition of consent, condition 20, imposed on Development Consent No. 206/2015 granted 22 September 2015 and as modified by Development Consent No. 206/2015/A granted 19 April 2017 (the Development Consent), for a service station and convenience store (the approved development), at 190 The Lakes Way, Tuncurry (the site), by MidCoast Council (the Council).
The appeal was subject to mandatory conciliation on 21 March 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Condition 20 of Development Consent No. 206/2015/A is in the following terms:

20. S94 contributions
Prior to the issue of a construction certificate, a monetary contribution shall be paid to Council in accordance with Section 94 of the Environmental Planning and Assessment Act 1979. The services and facilities for which the contributions are levied and the respective amounts payable under each of the relevant plans are set out in the following table:

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NSWLEC 1489
Decision Date: 18 September 2018

CaseChat Overview and Summary

In the matter of Wilson v MidCoast Council, the dispute centred on the calculation of development contributions for a service station and convenience store located at 190 The Lakes Way, Tuncurry. The respondent, MidCoast Council, had issued a Development Consent for the project, which included a condition related to the payment of a development contribution. The appellant, Wilson, contested the amount of the contribution, arguing that it was incorrectly calculated. The case was heard and determined in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the contribution amount, as set out in Condition 20 of Development Consent 206/2015/A, was correctly calculated. Specifically, the court needed to decide if the contribution should be based on the indexed rate of $697.36 per one-way trip and the specified number of trips, or if there were errors in the calculation process that warranted a revision of the contribution amount. The court also needed to consider the implications of the Development Contributions Plan Forster District and the relevant legislative framework in its decision.

The court found that there were errors in the original calculation of the development contribution. The court noted that the contribution should be based on an indexed rate of $697.36 per one-way trip, and the number of trips should be 168. The court concluded that these factors resulted in a correct total contribution of $117,955.75, rather than the amount proposed by the council. The court's decision was based on a detailed analysis of the evidence presented and the applicable legislative provisions. As a result, the appeal was upheld, and the condition in question was amended accordingly.

The final orders of the court included the amendment of Condition 20 in the Conditions of Consent at Annexure A to reflect the correct contribution amount, the return of all exhibits except for specified ones, and the upholding of the appellant's appeal. The decision ensured that the development contribution was accurately calculated and that the appellant's rights under the legislation were upheld.

Orders

Orders of the court

(1) The appeal is upheld.

(2) Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under the Section 94 Development Contributions Plan Forster District of $117,156.48 and a total levy contribution of $117,955.75, at the date of these orders.

(3) The exhibits, other than Exhibits 1, 3, 4, A and B, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wilson v MidCoast Council [2018] NSWLEC 1489
Hearing dates:	11 – 12 September 2018
Date of orders:	18 September 2018
Decision date:	18 September 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The appeal is upheld. (2) Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under the Section 94 Development Contributions Plan Forster District of $117,156.48 and a total levy contribution of $117,955.75, at the date of these orders. (3) The exhibits, other than Exhibits 1, 3, 4, A and B, are returned.
Catchwords:	APPEAL: modified development consent granted for a service station and convenience store; appeal against the terms of a condition of consent requiring a levy contribution under s 94; whether the formula used to calculate the monetary contribution for a petrol station and convenience store should include a discount for passing trade trips; whether there is power to modify the terms of the condition; whether the condition is unreasonable in the particular circumstances of the case.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 The Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1
Texts Cited:	RMS Guide to Traffic Generating Developments Section 94 Development Contributions Plan Forster District
Category:	Principal judgment
Parties:	Robert Leo Wilson (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: S Nash (Applicant) H Irish (Respondent) Solicitors: MRM Lawyers (Applicant) Local Government Legal (Respondent)
File Number(s):	2017/308265
Publication restriction:	No