Bresact Pty Limited and Estia Pty Ltd v Manly Council

Land and Environment Court (NSW)|2010-03-10

CITATION : Bresact Pty Limited and Estia Pty Ltd v Manly Council [2010] NSWLEC 1137 This decision has been amended. Please see the end of the judgment for a list of the amendments.

1st APPLICANT Bresact Pty Limited

PARTIES : 2nd APPLICANT Estia Pty Ltd

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96, s94 and s94B(3)

Arkibuilt Pty Ltd v Ku Ring Gai Council (2006) NSWLR 529 Bandora Holdings Pty Ltd v Byron Shire Council [2009] NSWLEC 1317 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 CASES CITED: Greek Australia Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 20 Moto Projects (No2) Pty limited v North Sydney Council (1999) 106 LGERA 298 Peter Duffield v Canada Bay City Council (2002) 124 LGERA 349 Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55

APPLICANT Ms A Pearman (barrister) Instructed by N C Coombes & Co

RESPONDENT Mr S Griffiths (solicitor) SOLICITOR Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10975 of 2009 Bresact Pty Limited and Estia Pty Ltd v Manly Council

JUDGMENT Introduction 1 The applicant has filed an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act), against Manly Council's refusal to modify the monetary contributions imposed by condition DA274 of development consent DA 47/206 for a site at 9-11 The Corso Manly. 2 Condition DA274 requires payment of monetary contributions in accordance with s94 of the Act in the following terms: Payment of contributions in accordance with section 94 of the Environmental Planning & Assessment Act 1979 is required for the development. The amount being applicable in respect of two dwellings and two car parking spaces in accordance with Council's Section 94 Policy applicable at the time of payment prior to the issue of the construction certificate." 3 This dispute has arisen because the parties cannot agree about the monetary amount payable under the condition. 4 To date, no payment has been made and the consent (which Council has extended for 12 months) expires on 15 June 2010. 5 Council contends the applicable policy is the Manly Section 94 Contribution Plan 2004 and calculates the monetary contribution payable under condition DA274 on two bases; firstly, a sum of $53,561.49 for the two residential units and secondly, the sum of $61,949.32 for two car parking spaces. 6 The Council takes issue with the Court's jurisdiction to approve this application because it contends that the modified development is not substantially the same as the development originally approved. It submits that condition DA 274 is "inextricably linked" with the consent. 7 The applicant contends the modified development is substantially the same development as that originally approved but that condition DA274 as interpreted by Council requires an unreasonable monetary contribution on two grounds. Firstly, it does not take into account the Minister's s94E Direction issued in January 2009 after the consent was granted (capping residential contributions to $20,000 per dwelling). Secondly, because on the facts of the case, the payment of a contribution for car parking spaces is not able to be justified. 8 The applicant pursuant to s96 of the Act seeks to modify the condition DA274 of the consent as follows: "Payment of contributions in the sum of $40,000 in accordance with section 94 of the Environment Planning and Assessment Act 1979 is required for the development. The amount of $40,000 being applicable in respect of the two dwellings and two car parking spaces to be paid prior to the issue of construction certificate " 9 Following a consideration of the evidence and the law, I accept that the modified development is substantially the same as the development originally approved by the Council. I accept the evidence of the Council that the applicable plan is The Manly Section 94 Contribution Plan 2004; that condition DA274 is of a kind allowed by the Council's contributions plan, and that the amount calculated on the basis of this plan in the sum of $113,561.49 is reasonable in the circumstances of this case. Therefore, I dismiss the appeal for the reasons set out below. Statutory Provisions 10 Council imposed condition DA 274 under section 94 of the Act. The section states: "4 Contribution towards provision or improvement of amenities or services (1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. … Section 94 or 94A conditions subject to contributions plan 94B Section 94 or 94A conditions subject to contributions plan … (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." 11 The Minister's s94E Direction, which the applicant relies on as a relevant consideration in the circumstances of this case and the Department of Planning Circular accompanying the Direction (exhibit1).

The circumstances of this case according to the Council 12 I rely on the facts and contentions as set out in the applicant's statement of facts and contentions filed on 20 January 2010 and the Council's statement in reply filed on 5 February 2010 and the documents in Council's bundle (exhibit 1). 13 The site is small with two frontages: The Corso Manly and Market Lane. It contains an existing commercial/retail building with no onsite parking. Relevantly, the Market Lane frontage is also the access point for Council's Whistler Street multi-deck public car park for 350 vehicles. The site is located within Zone No3 -Business. The objectives of the zone include: "(b) to accommodate retail, commercial and professional services in established locations in the residential neighbourhoods where such development is compatible with the amenity of the surrounding areas, (c) to ensure there is adequate provision of car parking in future development in business areas …"

14 There is no issue about the permissibility of the development under the relevant planning controls. The applicant lodged a SEPP1 objection to the car parking development standard at clause 16 of the Environmental Planning and Assessment Model Provisions 1980 which is adopted by clause 6 of the Manly Local Environmental Plan 1988. 15 However, what is relevant to consider, as I have, the statutory controls which apply to the site the including the following: 16 Clause 16, Residential Flat Buildings -- Parking, as contained in Part V - Special Provisions, Division 2 - Residential Development of the Model Provisions states: "(1) A residential flat building (other than units for aged persons) cannot be erected or used unless provision is made within the site for- (a) Parking space not less than 5.4 m by 2.4 m each dwelling within the building; and (b) Proper vehicular access to the parking space." 17 Manly Section 94 Contributions Plan 2004 provides: "7.3 Car parking … The Development Control Plan to the Business Zone is currently being amended to bring the parking requirements up to the RTA standard with the proviso that up to a maximum of fifty percent of that parking may be provided on site and the balance will be paid the Council as a car parking contribution to recover the cost of providing the parking which is now in place, that is $27,528. This figure is to be increased annually in line with the CPI until such times as it is reviewed at the end of each five-year period." 18 The DCP for the Business Zone has now been amended to the above effect. Manly Development Control Plan for the Business Zone 1989, Amendments 7 C (3) and (4) state: "Council has adopted a Contributions Plan under s 94 of the Environmental Planning and Assessment Act 1979. This pIan requires contributions certain developments towards the development of public services and amenities. Applicants should refer to this document when proposing development Council an applicants must have regard to the objectives and relevant controls of the Council's DCP the Residential Zone residential development within the Business Zone." D (7) Aims and Objectives state: To introduce car parking standards relating to required car parking spaces for particular uses, in policies relating to the preferred location of such spaces within a particular centre in order to optimise the use of car parking spaces and control traffic movement; … 1.5 Car parking and Access 1. Car parking spaces shall be provided on site (except as provided for below) in conjunction with developments in accordance with the following rate: (ii) 2 bedroom -1 space per dwelling … On-site parking provision In respect of parking for all uses other than dwelling, tourist accommodation and backpacker accommodation, a maximum of 50% only of car parking space is required is permitted to be provided on-site, with the remainder being provided by way of contribution in accordance with the Council section 94 contributions plan." 19 Manly Development Control Plan For the Residential Zone 2007 -Amendment 1 provides the objectives and controls in relation to the provision of on-site parking apply to so much of development as is residential. 20 Based on the above planning controls the Council submits that the applicable section 94 plan for the purposes of the development consent condition is the Manly Section 94 Contribution Plan 2004. 21 According to the evidence, Council granted conditional development consent for the alteration of the existing building (including a shopfront to Market Lane and the conversion of the existing first floor office into two residential units) with no onsite parking on 15 June 2007. 22 The terms of Council's approval are recorded in the Minutes of the Land Use Management Committee Meeting of 4 June 2007 (at folio 385 of exhibit 1). It reads: "That development application number 47/06 for alterations and additions to an existing building including three (3) (sic) new residential units on two levels and 11 The Corso Manly be approved subject to standard conditions and subject to section 94 contributions and noise abatement considerations. " 23 The evidence discloses that the approval was against the staff recommendation for refusal of the application. The planning assessment report concluded that the development caused a decrease in commercial space in the Manly CBD and failed to provide the required car parking for the proposed residential component of the development (folios 295, 309, 323 and 363 of exhibit1) and, for those reasons, should not be approved. 24 The Council submits that to overcome the shortfall in parking and the planning issues raised by Council's staff the Council decided to impose the section 94 conditions DA 274 on the consent.

25 The Council submits that The Manly Section 94 Contribution Plan 2004 (adopted at P&S Committee on 11 April 2005 and effective from 16 April 2005 at folio189 of exhibit 1) is the applicable plan for the purposes of condition DA 274 and calculates under that plan the monetary contribution payable in the amount of $113,561.49 calculated as follows:

"1. Two (2) residential units $14,095.13 x 1.9 x 2=$53,561.49. 2. Two (2) car parking spaces $30,974.66 x 2 =$61,949.32 TOTAL contribution = $115,510.81" (Corrected during the hearing to a total of $113,561.49 folio 502 of Exhibit 1) 26 The documents in Council's bundle include an internal Council memorandum dated 20 November 2007 (at folio 407 exhibit 1) that discusses the reasons and calculation of the section 94 contributions for both the residential and retail/commercial components of this development under the plan. The document apparently responds to the applicant's request for a reduction in the s94 contribution. It is submitted by Council that the memo explains the reasoning behind the imposition of condition DA 274 and the basis of Council's calculation under the plan. The memo states: "The current situation is that the existing building comprises a retail/commercial floor area of some 343m2 (FSR1.58:1). There is no parking onsite. The following proposals have been before Council for assessment in this DA; (i) Initial DA -required parking - retail/commercial = 5 spaces for residential= 3spaces (ii) 1 st Amdnt- required parking - retail/commercial = 11 spaces for residential =2 spaces (iii) 2 nd Amdnt - required parking - retail/commercial = 5 spaces for residential = 2 spaces It will be noted that there is a difference of only one less space between that required by the applicant's original proposal and that required as a result of the changes brought about by the issues raised by Council. On this basis the applicant should have been aware that a parking contribution would be required of that order. Because there is no increase in the retail /commercial floor area and there is no car parking on site there is no requirement for contributions (either for car parking or for the other services or facilities) for that component of the development. That is Council accepts that there is going to be a shortfall for parking to the extend ie something in the order of 8-9 spaces. However, because the residential units are new on the site, contributions for car parking and for the other services and facilities are required. …The objective of the car parking contribution is to limit the number of spaces and hence the cars in the CBD and at the same time provide funds for Council to provide additional parking for the demand generated by development. The applicant is suggesting that by warning prospective residents/occupants that they cannot participate in on street resident parking schemes the parking demand will be reduced. The problem with this argument is that it will not satisfy the above objective in fact it may exacerbate demand. The condition will not prevent an occupant purchasing a vehicle. The owner then has to compete with others who have on street parking vouchers the street parking. This creates a policing problem for Council, angst in the community and no funds for providing additional parking. It should again be pointed out Council has already accepted that there is an existing shortfall for the site. As a result I cannot support any reduction in the contribution required for car parking."

27 Council's evidence is that the section 94 plan and the contribution table 18 (at folio 243) explain the basis of the calculation of the contribution which Council submits is reasonable. I note that I was referred to the notation in the policy which reads: "The contribution rates have been calculated separately for the Manly precinct and the remainder of the LGA due to the anticipated concentration of future growth in the Manly town centre. This growth is likely to generate significantly greater traffic flows in the Manly town centre and in the remainder of the Manly local government area." 28 I was also taken to clause 7.3 of the car parking plan and the comment therein "…Clearly, the current level of car parking is reaching a threshold where it will not be able to accommodate the ongoing demand for parking associated with development which occurs over the years to 2030 nor does it take into account any increase the level of car ownership." 29 Council's evidence is that the Whistler Street Car Park, built in 1971 and accessed at the rear of the site provides 350 public parking spaces to service the commercial activities within the Manly CBD. The fees and charges for use of the car park are set out in the Statement of Statement of facts and contentions. Like other local government areas Council submits that Manly CBD is experiencing an ever-increasing demand for more parking. The Manly Section 94 Contribution Plan 2004 (adopted 16 April 205) found at folio 231 of exhibit 1 states that "the demand for car parking will grow beyond that currently provided. It has been estimated that by the year 2013 that the floor space will have increased over the past 20 years by some 50,000m2 or to count 2500m2 per year." 30 Council's evidence is that in the past it has required the provision of parking for commercial/retail developments generally at a rate of one space per 70m2 (at folio 231). However, this is well below the RTA standard and unless Council alters its current situation for car parking, funds will not be available to construct parking in appropriate locations to meet the shortfall. 31 It is Council's submission that the applicant is and always has been acutely aware of the constraints of this small development site. In support of that submission I am referred to the applicant's correspondence to Council at (folio318 of exhibit 1) about the contribution for parking and the development it states "…the provision of on site parking will result in the destruction of the continuity of the pedestrian zone, the reduction of shop front, the loss of a retail outlet, loss of employment opportunities, and the realisation of the aesthetic potential of Market Lane and will impact adversely on the adjacent heritage properties." 32 It is Council's submission that the imposition of condition DA 274 recognised the constraints of the site and facilitated an approval via a monetary contribution rather than compliance with the car parking controls. 33 Council contends that the consent was only granted on the basis that the shortfall in parking for the two units could be satisfied by the payment of the car parking contribution. Council submits that its evidence demonstrates that the development breaches all relevant parking controls. It is contrary to clause 10(3) of the Manly LEP. It is contrary to the objectives of the Business Zone that requires development to be compatible with the amenity of surrounding area 1(b) and to ensure that there is adequate provision of car parking 1 (c). It fails to comply with clause 16(1) of the Model Provisions and clause 1.5 of the Manly DCP. 34 It is Council's submission that approval of this modification application would not be in the public interest because it introduces more residential development within the CBD without the provision of car parking spaces. 35 Council concedes that the format of the section 94 conditions has changed since the issue of the consent the subject of the appeal and the new condition is set out at page 11 and 12 of the Statement of facts and contentions. However, relevantly, the monetary amount for this development has not change under the new styled condition. 36 Council submits the applicant has not demonstrated that compliance with the condition is unreasonable in the particular circumstances of this case for the purposes of section 94B(3). 37 Council submits that the approval of this modified development is not in the public interest because it increases traffic congestion without the provision of car parking spaces. The parking supply in the CBD is at near capacity and in support of that submission Council relies on the recent studies it commissioned which were referred to in the Council's evidence including Clause 3.2 of the Manly CBD Parking Study commissioned by Council and prepared by Gennaoui Pty Ltd in June 2009 and Chapter 3 -Existing Parking Conditions in CBD- Manly CBD Parking Study commissioned by Manly Council and prepared by Gennaoui Consulting Pty ltd June 2009. The Minister's s94E Direction 38 With respect to the relevance of the Minister's s94E Direction, the Council submits that there is nothing in the wording of condition DA274 that requires it to be read subject to the Minister's Direction that operates on and from 30April 2009. 39 The Manly Section 94 policy 2004 remains the applicable policy because this consent was issued prior to the Minister's Direction and the Direction is not retrospective. 40 The Council submits that the Planning Circular which accompanied the Direction makes the fact that it does not apply to this consent clear. It states: "The Direction … takes effect on 1 February 2009. … The Direction provides that as from 30 April 2009 development consents … … The Direction applies to consent granted … on or after 30 April 2009… What excluded?" …the Direction does not apply to: Section 94 contribution conditions imposed before 30 April 2009." 41 The Council submits that any reading of the Direction that purports to give it retrospective effect is beyond power and renders the Direction invalid. Reasonableness 42 The Council submit that it is unreasonable to have regard to the Minister's Direction because of the very obvious intent of the Minister's Direction (i.e. that it not apply to earlier consents). 43 There is nothing unreasonable about the application of the Ministerial Direction in accordance with its terms (i.e. by restricting its operation to post 30 April 2009 consents). 44 The Council submits that the applicant hasn't established in the particular circumstances of the case (as required under section 94B(3), that this consent can be distinguished from all other current consents which predate the Direction. 45 In fact, the Council submits that it would be unreasonable to reassess the applicant's section 94 contribution having regard to the Minister's Direction because to do so would prejudice all other current development consents issued before the Minister's Direction in this local government area and other areas in New South Wales. Council submits: " If it were reasonable that the Applicant's section 94 contribution be reassessed on merit grounds then it would also be reasonable for all current development consents given in the affected local government areas of New South Wales to be reassessed as well. This would extend back to at least June 2007 or even earlier than some current consents i.e. back to 2004." Substantially the same development 46 Council submits that this modification application seeks to radically alter the essential character of the development as originally approved and therefore the Court does not have jurisdiction to entertain the application because the modified development will not be substantially the same as the original development approved. 47 It is also Council's submission that because condition DA274 is "inextricably linked" with the consent it cannot be severed and refers me to the decisions of: Meriton Apartmens Pty Ltd v Minister for Urban Affairs and Planning & Ors (2000) NSW LEC 20; Greek Australia Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130.

Discretion 48 Council submits that there is a limit to the discretion available to the Court to modify this consent and refers me to the decision of Peter Duffield v Canada Bay City Council (2002) 124 LGERA 349. It submits that case is instructive because it cautions against the exercise of my discretion to modify a section 94 condition where the result will be "…such as to deprive the Council and the community of cash contributions pursuant to EP and A Act section 94". 49 The Council contends that in imposing the condition now under challenge, Council sought to compensate for the unavailability of onsite parking. The applicant now seeks to be relieved of its obligation and I am referred to the benefit and burden analogy in Progress Securities Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 55 and asked not to approve the application on that basis. The circumstances of this case according to the applicant 50 The applicant in its written submissions (AWS) contends that this appeal raises the following narrow issue: "What is a reasonable sum for the applicants to pay by way the section 94 contribution given:

a. The wording of the section 94 condition which fails to include a dollar amount but clearly states that the amount payable in respect of the development is in accordance with Council's section 94 policy applicable at the time of payment prior to the issue of the construction certificate. b. The Minister's Direction issued to all Councils issued on 1 February last year which became operative on 30 April 2009 and for Manly Council from 17 July 2009, limiting section 94 contributions to 20,000 per dwelling; c. The Minister's criticism of the Council's section 94 plan as it relates to residential development, in that the Minister considers that the Council has not "sufficiently justified the need for infrastructure funded by contributions plan and its reasonableness and proper connection with new development " d. The Minister's Direction to the Council to undertake a review of the Manly section 94 plan including any amendment of the plan by 31 December 2009; e. Clause 26 of the Environmental Planning and Assessment Regulation 2000 which provides the Councils must not approve the contributions plan including a plan which means an existing contributions plan that is inconsistent with a Direction issued under section 94E; f. in the absence of an applicable revised contributions plan, provision in the Direction to reduce the contribution rate specified in applicable contributions plan relating to residential development that the purpose of determining monetary contributions that comply with clause 3." 51 In submitting the above, the applicant accepts that the Ministers' Direction is not retrospective and that it is reasonable and appropriate to pay some monetary contribution under the condition for the residential component of the development; but it is unreasonable to require any payment for car parking. It proposes a lump sum of $40,000 to cover both components. 52 In support of the above submission the applicant says car parking contributions are not required "given the proximity of the site to the highest levels of public transport on the northern peninsular (AWS para35 -36). 53 The applicant submits that Council's works schedule does not contemplate the creation of any new car parking stations and therefore there is no nexus between the contributions required in this development and the requirement of contributions in respect of car parking fails the second limb of the Newbury test. (AWS 37). 54 The applicant submits that car parking spaces in Manly are part of existing services and section 94 contributions may not be levied for an existing service (AWS 39). 55 The applicant submits that it is relevant to consider the Minister's express "rejection of the Council's request for exemption from the cap on the basis that it was permitted to recoup costs of providing infrastructure. (AWS 39)." 56 The applicant submits that the then Minister's correspondence with the Council about its existing plan and the Council's request for exemption from the Direction and the monetary cap is a relevant consideration in determining what the reasonable contribution should be under section 94B(3) (AWS para 44). 57 The applicant also submits (AWS47) it is relevant to have regard to comments in a memorandum of Council's Executive Manager of Environment Services to the General Manager in May 2008 (folio 408) wherein he says" the reasoning behind the car parking contribution required in the present case is difficult to understand given the site has never had any provision for off-street parking and the approved development provides no opportunity for on-site parking. All this was known at the time of approval." The officer goes on to recommend the waving of the car parking requirement of some $58,000. 58 For the reasons set out in the applicant's written submissions which include: the wording of the condition which fails to include a dollar amount and name the applicable section 94 Plan; and the Minister's s94E Direction which does apply to this consent and the criticism of by the Minister of the Council's s94 Plan and the fact that the Manly CBD is well serviced by one public transport areas support a finding that the condition is unreasonable under s94B(3) and should be modified in accordance with this application. Issues 59 The issues in this appeal include: 1. Whether the modified development is substantially the same as the development originally approved? 2. The "reasonableness" of the monetary contributions claimed under the condition and the relevance, if any, of the Minister's Direction in the context of an appeal pursuant to s94B (3). Finding on "substantially the same" 60 Based on the evidence and the case law cited by the parties I reject the Council's submission that the modified development is not substantially the same development as that originally approved by the Council. Therefore, I find that I have jurisdiction under section 96(6) of the Act to deal with application. 61 I accept the applicant's submission based on the cases summarised in Bandora Holdings Pty Ltd v Byron Shire Council [2009] NSWLEC 1317 that the physical building will not be altered by this modification and the additional environmental impact, if there is no monetary contribution to assist Council address the increased parking generated from the approved new residential use in a building, will not change the essential character of the development originally approved. Based on the tests raised in the case law cited by the parties I find the essence of the modified development is substantially the same as that originally approved. There is no radical transformation of the development. Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992); Moto Projects (No2) Pty limited v North Sydney Council (1999) 106 LGERA 298. Power under s94B(3) 62 Do I have power under s96(6) of the Act to modify this s94 condition of this consent? I accept the applicant's submission that the decision in Arkibuilt Pty Ltd v Ku Ring Gai Council [2006] NSWLEC 502 provides a precedent to modify a section 94 condition imposed under section 96(8) by a Court. Furthermore, I accept that such precedent extends to an application before me under section 96(6) of the Act. 63 S94B (3) of the Act empowers me to do the following: "(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." 64 I accept the submission of Council based on its evidence referred to above that condition DA274 is a section 94 condition of a kind allowed by a contributions plan. In this case I accept the evidence of Council that the applicable plan is the Manly Section 94 Contribution Plan 2004 for the reasons detailed in (para 18 -20 above). Therefore, under section 94B(3) the Court has power to disallow or amend condition DA274 if it finds that it is unreasonable in the particular circumstances of the case, even though it is determined in accordance with a relevant contributions plan. 65 The issue is whether the Court should exercise its discretion under s96 and under s94B (3) and reduce the residential contribution and /or disallow the parking contribution imposed by condition DA274 because it is an unreasonable condition in the circumstances of this case? 66 I accept the submission of the applicant that I must consider the wording in s94B (3) and condition DA274 and have regard to their ordinary meaning in the circumstances of this case to determine whether the condition is unreasonable or not. Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 (30 April 2010) 67 The words in s94B (3) and s96 of the Act clearly define the extent of my power and my discretion. The power to amend or disallow under s94B (3) is enlivened if I find that the condition is unreasonable in the particular circumstances of the case. 68 However, the words of the condition do not specify the amount of the contribution or the applicable plan. The applicant submits the words provide an opportunity to have regard to a change in circumstance such as the Minister's section 94E Direction for the purpose of determining the amount of the contribution under the condition. 69 The Council submits that the applicable contribution plan is the Manly Section 94 Contribution plan 2004 and based on the evidence I accept that it is the applicable plan because the DCP says it is (para 18 above). 70 Based on the evidence detailed earlier in the Council's case, I accept the Council's calculations of the monetary contribution applicable for this development under the plan as explained in the evidence (at para 25-28 above.) 71 I accept the evidence of the parties that after the issue of the development consent on 15 June 2007 the Minister of Planning administering the Act on 17 July 2009 issued a section 94E Direction which capped the residential contribution at $20,000 (folio 409 of exhibit 1.) 72 I accept Council's evidence that the Minister's section 94E Direction is not retrospective and does not apply to this consent. This is clear on the evidence in this case including the Planning Circular that accompanied the Minister's Direction which states: "…The Direction applies to consents granted …on or after 30 April 2009" and under the heading "What's excluded?" it reads: "This Direction does not apply to: a) Section 94 contribution conditions imposed before 30 April 2009"

73 I do not accept the applicant's written submission in (para 23 AWS) submission that the particular words of the condition leave open the opportunity to substitute a monetary contribution reflective of the Minister's Direction. The submission reads: " the applicants do not cavil with the respondent's contention that the Direction is not retrospective but that the framing of the condition requiring monetary contributions in accordance with Council section 94 policy applicable at the time of payment contemplate that payment is fixed at a time in the future. The applicant contends that in light of the fact that no sum is identified, payment has not yet been made in the light of the Minister's Direction it is not unreasonable that future payments should reflect the Direction." 74 I accept the Council's submission that attempts to challenge the finality or certainty of the wording of a condition are matters for another class of proceeding and outside this merit appeal. Council's submission states: "To the extent that the Applicant contends that the meaning of the words in the section 94 condition appealed against has the effect that it is entitled to pay less than the Council expects to receive then this is not an appropriate matter to be tested in Class 1 proceedings." 75 I do not accept on the evidence before me that in considering the meaning of condition DA 274 it is relevant to have regard to a change of circumstance such as the issue of a s94E Direction which post dates the consent and by its terms does not retrospectively apply. 76 I am not persuaded by the applicant's submission that a consideration of correspondence between the then Minister and the Council about the Ministerial Direction is of any relevance or assistance in interpreting the reasonableness of Council's calculation of the monetary contribution required under condition DA274 for the residential component of the consent. I reject the submission because the applicant has not demonstrated how it is a relevant consideration under section 94B(3) of the Act. It is not sufficient to assert that there has been a change in circumstances and therefore that change is relevant under section 94B(3). 77 The change in circumstances occasioned by the Ministerial Direction, based on the evidence, does not have any bearing on this consent because it postdates it. I reject the applicant's submission (the AWS 21) that "… the court will be persuaded that in the circumstances the Minister's Direction should override the impost the Council contends for because the Minister's Direction is reasonable". The reasonableness or otherwise of the Minster's Direction which I decline to comment on is of no relevance to this appeal and I find the submission obtuse. I accept the Council' submission that in considering the reasonableness of the monetary contribution under the condition I should have regard to "the very obvious intent of the Minister's Direction i.e. that it not apply to earlier consents." 78 I accept Council's submission that the imposition of the section 94 condition was critical in the determination of the approval and a watering down of that contribution based on irrelevant considerations is not contemplated by section 94B(3). 79 There is no evidence before me to support the assertion made by the applicant that the amount Council says is payable under the condition for the residential component or the car parking contribution is unreasonable on the facts of this case. The Council contends that the amount payable is justified under the applicable section 94 contribution policy and I have evidence to support that submission (folio 407 exhibit 1). I accept as reasonable the evidence of Council, detailed earlier in this judgment that explains how the contribution was calculated in accord with the Manly Section 94 Contribution Plan 2004 and the reasons why the section 94 condition was imposed on the consent. I accept Council's submission and the evidence in support of that submission that the residential cap now in place because of the Minister's Direction does not operate to limit the residential contribution required by condition DA 274 of development consent DA47/206 issued on 15 June 2007. The Direction itself and supporting planning circular state that they do not apply to consent granted before the Direction was issued. 80 There is no relevant evidence from the applicant to justify the disallowing of the car parking contribution required by the condition that on Council's evidence is calculated in accord with the applicable plan. The Council's evidence is that the development will increase the demand for parking principally because for the first time on this site there will be 2 residential units with no parking provided onsite. I accept the evidence that the applicant was acutely aware of the development constraints of his small site (folio 318 in exhibit 1). There is substantial evidence in Council's bundle which demonstrates that the approval of this development was dependant on the applicant offsetting the shortfall in onsite parking by the payment of a section 94 contribution. The applicant has not referred to any persuasive evidence to justify the amendment it proposes. The evidence from Council is that the condition is legally imposed under s94 and reasonable in the circumstances of this case. 81 I accept the Council's submission that in imposing the condition now under challenge, Council sought to compensate for the unavailability of onsite parking. The applicant now seeks to relieve itself of the burden of the consent but take the benefit: Progress and Securities. 82 I find the applicant's submission that an internal memo between a Council employee and the general manger that predates the issue of the consent is of no relevance in this appeal. It does not assist to determine whether the condition is reasonable under s94B (3). 83 I reject the submission that the Minister's Direction is a relevant change in circumstance since the issue of the consent which should be taken into account in an assessment of the reasonable monetary contribution under the condition. I accept the Council's submission to do so in respect of this consent raises uncertainty for perhaps many other consent issued prior to the Minister's Direction. 84 The applicant submits at (para 20 AWS) that "the change in circumstances since the consent was granted has altered the relevant factual matrix which the court, now in the shoes of the consent authority, can take into account in determining the reasonable contributions payable". I do not accept this submission based on the evidence before me. 85 Council's evidence is that the plan and the contribution table 18 at (folio 243 in exhibit 1) detail the basis of the calculation of the contribution under the condition which Council submits is reasonable. I note that I was referred to the notation in the policy which reads: "The contribution rates have been calculated separately for the Manly precinct and the remainder of the LGA due to the anticipated concentration of future growth in the Manly town centre. This growth is likely to generate significantly greater traffic flows in the Manly town centre and in the remainder of the Manly local government area." 86 I was also taken to clause 7.3 of the car parking plan and the comment therein "…Clearly, the current level of car parking is reaching a threshold where it will not be able to accommodate the ongoing demand for parking associated with development which occurs over the years to 2030 nor does it take into account any increase the level of car ownership." 87 Council's evidence is that the Whistler Street Car Park, built in 1971 and accessed at the rear of the site provides 350 public parking spaces to service the commercial activities within the Manly CBD. The fees and charges for use of the car park are set out in the Statement of facts and contentions. Like other local government areas Council submits that Manly CBD is experiencing an ever-increasing demand for more parking. The Manly Section 94 Contribution Plan 2004 (adopted 16 April 205) found at (folio 231 in exhibit 1) states that "the demand for car parking will grow beyond that currently provided. It has been estimated that by the year 2013 that the floor space will have increased over the past 20 years by some 50,000m2 or to count 2500m2 per year." 88 Council's evidence is that in the past it has required the provision of parking for commercial/retail developments generally at a rate of one space per 70m2 (at folio 231 in exhibit 1). However, this is well below the RTA standard and unless Council alters its current situation for car parking, funds will not be available to construct parking in appropriate locations to meet the shortfall. 89 The evidence supports a finding that the contribution Council submits is payable under the condition is entirely reasonable in the circumstances of this case. Based on the evidence, I find the condition is reasonable and is of a kind allowed by a contributions plan and it cannot be modified under section 94B(3). 90 In fact, based on the evidence I do not accept that I have the power under section 94B(3) to modify the consent as proposed by the applicant because the condition is not unreasonable in the particular circumstances of the case. Had I the power I accept the Council's submission that I should cautiously exercise any discretion in circumstances where I may deprive the Council and the community of cash contributions pursuant to section 94 of the EPA Act: Peter Duffield. 91 There is no evidence before me to suggest that the Council will not apply the contribution paid under the condition in accordance with the applicable plan. 92 It is Council's submission that the applicant is and always has been acutely aware of the constraints of this small development site. In support of this submission I rely on the applicant's correspondence to Council (folio318 of exhibit 1) about the contribution for parking and the development. It states "…the provision of on site parking will result in the destruction of the continuity of the pedestrian zone, the reduction of shop front, the loss of a retail outlet, loss of employment opportunities, and the realisation of the aesthetic potential of Market Lane and will impact adversely on the adjacent heritage properties." 93 The applicant submits, "The Court will be persuaded that in the circumstances of this case that the Minister's Direction should override the impost the Council contends for because the Minister's Direction is reasonable"(AWS 21). I reject that submission on the grounds detailed earlier. The Direction does not apply to this consent and it is not a relevant circumstance for the determination of the condition. 94 Based on the planning evidence in Council's evidence (including the planning assessment reports and the Council commissioned studies which confirm the shortfall in parking in the Manly CBD and the demand for parking generated by this development) I find that condition DA 274 is reasonable in the particular circumstances of this case. I reject the submission of the applicant that " car parking contributions are not required given the proximity of the site to the highest levels of public transport on the northern peninsula" (folio 513-514 exhibit 1). Based on Council's evidence including its traffic studies in 2009; and the planning evidence relevant to the parking demands in the area and the parking generated by this development, I cannot accept the applicant's submission that the condition is unreasonable in the particular circumstances of this case. 95 I am satisfied on the evidence that the development will or is likely to require the provision of or increase the demand for public amenities and public services within the area and therefore the s94 condition DA274 imposed on the consent is reasonable in the particular facts of this case. 96 Based on the evidence and the submissions of the parties and a merit assessment in the circumstances of this case, I find that the amount claimed under condition DA 274 by Council is reasonable and is of a kind allowed by the Council's Manly Section 94 Contributions Plan 2004 which on the evidence is the applicable plan for the purposes of the condition under review. 97 I make the following orders: 1. The appeal is dismissed 2. The exhibits are returned.

      Susan Dixon
      Commissioner of the Court
      ljr

09/07/2010 - Typographical and grammatical amendments - Paragraph(s) Coversheet, Paragraph(s) 9, 40, 58, 61, 64, 90, 93

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1999) 106 LGERA 298

(2002) 124 LGERA 349

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (7)