Arkibuilt Pty Ltd v Ku-ring-gai Council

Arkibuilt Pty Ltd v Ku-ring-gai Council - [2006] NSWLEC 502 - NSWLEC 2006 case summary — Zoe

[69]

18 The applicant submitted that the monetary contributions imposed by condition 69 of the development consent ought to be amended by the Court as they were unreasonable in the particular circumstances of the case. To support this submission, the applicant primarily relied on the evidence of Ms Robinson, planner, to the effect that: - (i) the assumptions about the number of people who would occupy dwellings in the development which founded condition 69 were flawed for two reasons and, thereby, made the condition unreasonable. Reason 1 was that the contributions plan inappropriately relied on dwelling size, instead of the number of bedrooms as the criterion for calculation. Reason 2 was that the contributions plan used unweighted average occupancy rates for all dwelling types, which dramatically overstated the occupancy rates for residential flat buildings (the subject development being a residential flat building), (ii) the condition required a monetary contribution for the acquisition of 5.82 sqm of open space for each new resident in Lindfield, when the existing open space supply in Lindfield was 3.77 sqm of open space per person. As such, the monetary contribution for open space was not one within the scope of s 94(1) but, rather, was a means to require new residents to make up for a perceived shortfall in existing open space in Lindfield, (iii) the condition imposed a monetary contribution on each new resident for a childcare centre, ignoring the facts that most of the new population would be older "empty nesters" without young children, and the Council operated only 14% of existing childcare centres in the local government area (with the private sector operating 86% of those centres). The monetary contributions imposed by the condition, however, required the new residents to fund 100% of the capital cost of the childcare centre. The monetary contribution for childcare services, thereby, was unreasonable, and (iv) these concerns were reflected in certain inadequacies in the contributions plan. In particular, the contributions plan did not show where the proposed open space to be acquired was located, and did not identify the location and timing for the provision of the childcare centre. The applicant also submitted that there was no evidence that the Council had taken into account changing circumstances that might affect the reasonableness of the condition, such as the dedication of open space within the former CSIRO site in Lindfield.

[79]

28 As his Honour observed in [34], this result was dictated by the terms of s 94(1) itself - which provide that the power is available on the "grant" of development consent. As s 96(4) makes plain, the modification of development consent is not taken to be the grant of development consent. This distinction was important in the (unusual) circumstances presented to his Honour in Peter Duffield decision. The development consent authorised development comprising 32 serviced apartments and 28 units. The modification application sought to convert 28 of the serviced apartments into residential units. Under the applicable contributions plan, serviced apartments and residential units attracted significantly different contributions. If the development consent as granted had included the 28 residential units (as opposed to 28 serviced apartments), then the contribution payable pursuant would have been almost double the contribution in fact required to be paid by the condition imposed. In other words, the Council had not imposed a condition requiring a monetary contribution for the proposed 28 residential units, and the power to do so was not available pursuant to s 96 (because to modify the development consent was not to grant the development consent as referred to in s 94(1)). In consequence, Bignold J determined that the modification application ought to be refused in the exercise of discretion. His Honour's reasoning process should not be construed as suggesting that there is no power to modify a consent, by disallowing or amending a condition imposed under s 94. To so modify a consent is not to "impose" a condition under s 94 at all. The facts in Peter Duffield were unusual (in that the modification application sought to alter the development purpose altogether). There are no equivalent facts in this case. The applicant seeks to do nothing more than amend the already imposed s 94 condition. Accordingly, I do not accept the Council's submission in reliance on the decision in Peter Duffield.

[104]

46 The contributions plan divides the local government area into various precincts. The subject development is located in the Lindfield precinct. According to section C2 of the contributions plan: - (i) excluding regional parkland, there is 6.3 sqm of open space (parks) per person in the area, (ii) this provision of open space (0.63 hectares per 1000 people) is relatively low, and unevenly distributed, with some areas (such as Roseville, Lindfield and Gordon) having less than this area average. Lindfield, for example, has only 3.77 sqm of parkland per person, (iii) it would be desirable to acquire open space at least at the current (relatively low) per capita level of provision for the area as a whole, (iv) because of the high cost of land in the area, no contributions will be levied for the acquisition of additional active open space (sports fields and courts), but existing facilities will be embellished to make them "work harder", (v) for parkland open space, a different approach is required, based on "differential acquisition by precinct" (due to the uneven distribution of such open space throughout the area), (vi) the differential acquisition is to be based on a "weighting factor" which discounts proposed acquisitions at the precinct level according to a deemed appropriate benchmark (being 5.82 sqm per person), and differences between precincts in terms of both the existing quantity and accessibility of open space. For the Lindfield precinct (with only 3.77 sqm of parkland presently per person, and an expected population increase in the period 2004 to 2009 of 910 people), there is no discount from this benchmark, so the per person land requirement acquisition is 5.82 sqm (or 5,296.20 sqm), at an estimated cost of $6,715,582 (that is, $7,379.76 per person). Paragraph 27.73 of the contributions plan provides that the Council is to commission an open space acquisition planning study to identify sites for acquisition, and to ensure that the new open space is appropriately configured to meet the open space needs of new residents.

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