Intrapak Skennars Head Pty Ltd v Ballina Shire Council

Land and Environment Court (NSW)|2020-11-24

nt) Ballina Shire Council (Respondent) Representation: Counsel: A Hemmings (Applicant) T To (Respondent)

Solicitors: Holding Redlich (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/94985 Publication restriction: Nil

The Consent

Development Application 2017/244 (DA) was lodged with Ballina Shire Council on 17 May 2017. On 20 February 2019, the Northern Regional Panel granted development consent (the Consent) subject to conditions. The Consent was for Stage 1 of a residential subdivision of Lot 6 in DP 1225206, involving 229 residential lots, and other associated works/easements in Lot 4 DP1184436, Lot 7 DP1225206, Lot 50 DP755684 and Lot 5 DP1225206 (Site).
The Consent authorised a Torrens Title subdivision to create 229 residential lots (ranging in size from 451m2 to 789m2) for future dwellings; and the creation of: 1. Three lots for a proposed drainage reserve dedicated to council (444, 349 and 160); 2. One lot associated with drainage functions (Lot 635) to remain in private ownership; 3. One lot for proposed sewer pumping station (Lot 163) to be dedicated to Council; 4. Two lots for proposed Public Reserves for the purpose of local parks (Lots 348 and 442); 5. Three lots for proposed Public Reserves (Lots 347, 632 and 633), to be dedicated to Council free of cost. 6. Seven super lots (ranging in size from 1,453m2 to 13,332m2) for future Development Applications for subdivision to accommodate a neighbourhood centre and additional residential lots; and 7. One residual lot (3,501m2) - Lot 524.
The conditions of the consent included condition 5.2 (the contribution condition) requiring monetary contributions pursuant to s 7.11 of the EP&A Act and in accordance with the Ballina Shire Roads Contributions Plan V 4.1 (Roads Contributions Plan) and Ballina Shire Open Spaces and Community Facilities Contributions Plan 2016 (OS Contributions Plan).
The total contribution per lot exceeded $20,000 when calculated in accordance with the Contribution Plans, so that in accordance with Environmental Planning and Assessment (Local Infrastructure Contributions) Direction 2012 (Ministerial Direction) the contribution was reduced to $20,000 per lot, being a total of $4,580,000 (plus adjustments for CPI to date of payment).
The Consent also provided for the following: 1. Condition 2.4 - Civil works including the construction of the roundabout; 2. Condition 2.8 - Installation of conduits for future servicing of Sharpes Beach car park as part of the construction of the roundabout; 3. Condition 2.30 - Embellishment of Neighbourhood Park (Lot 348); 4. Condition 2.33 - Provision of $15,000 of public art in the Neighbourhood Park (in addition to the embellishment outlined in Condition 2.30); 5. Condition 2.35 - Embellishment of Local Park (Lot 442); 6. Condition 5.44 - Dedication of land for Neighbourhood Park (Lot 348); and 7. Condition 5.45 - Dedication of Local Park (Lot 442).
On 10 September 2019 the Applicant made an application (Modification Application) under section 4.55(2) of the EP&A Act to modify the Consent. The Modification Application proposes "modification of Condition 5.2 of approved DA 2017/244 under Clause 4.55 of the EP&A Act" by reducing the contributions to a total of $9,521.53 per lot, a total of $2,180, 430.37 (plus adjustments for CPI to date of payment). That is, the Applicant sought a reduction in contributions of $2,399,569.63. In final submissions, the reduction sought was increased to $2,647,349.92. The detail of the Modification Application is discussed below.
The Council has not determined the Modification Application.
This is an appeal pursuant to s 8.9 of the EP&A Act against the deemed refusal of the Modification Application.

The Site

The site comprises five allotments described as: 1. Lot 6 in DP 1225206, The Coast Road Skennars Head (area of 34.05ha); 2. Lot 4 DP1184436, The Coast Road Skennars Head (area of 7,942m2); 3. Lot 7 DP1225206, No. 305 The Coast Road Skennars Head (area of 11.36ha); 4. Lot 50 DP755684, The Coast Road Skennars Head (area of 16.19ha); 5. Lot 5 DP1225206, North Creek Road Skennars Head (area of 48.65ha).
The approved lots are located within Lot 6 in DP 1225206. The footprint of the development is located within the Skennars Head Expansion Area located to the south of Headlands Estate.
The Site is bound by Headlands Drive and residential properties of Headlands Estate to the north, The Coast Road to the east, Coastal Wetlands to the west, and agricultural land (incorporating stage 2 of the Skennars Head Expansion Area) to the south.
An appreciation of the approved layout of the site and the physical relationships with the locality can be gained from the following extracted documents: Figure 1 - DCP - Skennars Head Expansion Area Structure Plan Figure 2 - DCP - Landscape Framework - Coastal Reserve Figure 3 - Approved Subdivision Plan (partly reproduced) Figure 4 - Approved Overall Landscape Masterplan (partly reproduced)

Statutory Context

The relevant provisions of the EP&A Act, the Contributions Plans and Ballina Development Control Plan follow without immediate analysis. It will be necessary to repeat certain parts when considering the issues which have been identified.
The Applicant is seeking to modify the Consent. The power to modify is in s 4.55 of the EP&A Act: 4.55 Modification of consents - generally (1) ……. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. ……
There is no issue in this case that the development as proposed to be modified is substantially the same as the development the subject of the Consent.
The starting point for consideration of contributions is s 7.11 of the EP&A Act: 7.11 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. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned. (3) If - (a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and (b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations). (4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned. (5) The consent authority may accept - (a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or (b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3). (6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than - (a) a benefit provided as a condition of the grant of development consent under this Act, or (b) a benefit excluded from consideration under section 7.4(6). (7) If - (a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and (b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both, then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.
That is the general power to impose contributions. The power of a consent authority to impose such a condition is constrained by s 7.13 so that such a condition can only be imposed if it is in accordance with a contributions plan: 7.13 Section 7.11 or 7.12 conditions subject to contributions plan (1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). (2) However, in the case of a consent authority other than a council - (a) the consent authority may impose a condition under section 7.11 or 7.12 even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but (b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out. (3) A condition under section 7.11 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. (4) A condition under section 7.12 that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.
The power of the Court on appeal is not constrained in the way a consent authority is constrained. Section 7.13(3) provides that if on appeal the Court determines a condition is unreasonable then it may disallow or amend the condition even if it was determined in accordance with the plan, and therefore the Court is not bound by the specific provisions of the relevant contributions plan.
Section 7.18 of the EP&A Act authorises the making of a contributions plan by a Council and cll 26 and 27 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provide for the form of the plan and the particulars which the contributions plan must contain.
Ballina Shire Development Control Plan 2012 (BSDCP 2012) deals with the development of the Skennars Head Expansion Area, which includes the Site. The BSDCP 2012 set out the form and manner of the development of the site (and the balance of the Expansion Area), and there are a number of provisions relevant to the Applicant's case which are set out below: "5.7 Skennars Head Expansion Area ….. 5.7.2 Desired Future Character The Skennars Head Expansion Area will expand the existing residential area at Skennars Head and create a contemporary coastal residential village located between the coast and wetland ….. The subdivision of the site will provide a variety of lot sizes and forms which are suitable for contemporary dwelling houses. The street pattern will maximise physical and visual connections, encourage priority for pedestrians, cyclists and public transport users, and provide residential lots orientated to the street frontage and open space areas. Streets will be well connected with green corridors linking them to open space areas and a neighbourhood centre. Streets will form a view corridor to the ocean and a streetscape softened by the inclusion of street trees, hardy native shrubs and groundcovers which are suitable for the seaside location. A neighbourhood centre and large area of public coastal parkland will maintain panoramic views towards Sharpes Beach and be embellished to function as focal point for community activity and social interaction, for local residents and visitors. 5.7.3 Planning Objectives 5.7.3.1 General a. Provide for the integrated development of the Skennars Head locality. b. Facilitate the development of the Skennars Head Expansion Area for the purpose of residential development, open space and neighbourhood shopping facilities, and associated environmental works, public amenities and infrastructure. …. d. Deliver useable and well landscaped public open spaces to provide local recreation opportunities, facilitate sustainable urban drainage and complement residential amenity. ….. k. Facilitate the layout, design and embellishment of public land that is to be dedicated to Council in association with the development of the land in a manner that minimises the long-term management and maintenance costs for the community. 5.7.4 Development Controls A. Element - Site Layout i. Applications for the subdivision of the land are to be accompanied by information demonstrating how the proposed subdivision responds to the planning objectives under section 5.7.3, the Skennars Head Expansion Area Structure Plan (Appendix E) and integration with utilities and infrastructure to service the development. ….. vi. The natural scenic values of the coastal parkland adjoining The Coast Road, towards the southern end of the site, are to be preserved generally in accordance with the Skennars Head Expansion Area Structure Plan (Appendix E). vii. The development is to provide for an integrated network of pedestrian/cycle paths throughout to provide safe, convenient and direct access to and within the village area. viii. The eastern interface of the development, associated with the coastal parkland, is to be provided in a manner generally consistent with the illustration titled 'Skennars Head Intrapac Landscape Framework - Coastal Reserve' provided in Appendix E, incorporating the following key features: - 'Coastal Promenade' (shared pathway) along the western edge of the coastal parkland, and - Lineal reserves within the eastern most residential blocks, aligned in a generally east-west direction, provided to facilitate pedestrian permeability through the estate to the coastal parkland, and - The incorporation of a covenant on all titles fronting the coastal reserve, and any associated open space, prohibiting the construction of high fences fronting the reserves. ix. The southern interface of the development is to be provided in a manner generally consistent with the illustration titled 'Skennars Head Expansion Area Southern Interface Treatment' provided in Appendix E. ……. Streets and Access ….. ix. Application for the first stage of the development (or part thereof) is to be accompanied by a traffic assessment and plan to upgrade the Headlands Drive/The Coast Road intersection to meet the needs of the development and existing road users by way of an appropriately configured roundabout. The upgrade plan is to provide for the following: - Consolidated access to the expansion area and Sharpes Beach; - Deviation of Headlands Drive as part of the consolidated access; and - Closure of any redundant parts of Headlands Drive. ….. Pedestrian and cycleway network xii. A street and pedestrian/cycleway network is to be provided which integrates the subdivision of the land with the existing Headlands residential area and cycleway networks, generally consistent with the Skennars Head Expansion Area Structure Plan (Appendix E). xiii. Safe and accessible pedestrian access is to be provided: -Within the residential estate and between the estate and the adjacent Skennars Head residential area; -Between the Skennars Head Expansion Area and Sharpes Beach, via a new pedestrian underpass and at the new intersection on The Coast Road (if the intersection design enables this without adversely compromising road function); -In relation to the road network in the vicinity of the neighbourhood centre and adjoining open space and residential areas; and -Through the coastal parkland, at appropriate intervals, to facilitate pedestrian/cycleway access to the coastal cycleway. C. Element - Open Space ….. iii. Local parks, comprising a minimum usable park area of 2000m2, are to service a walkability catchment of 400m and be provided generally consistent with the Skennars Head Expansion Area Structure Plan (Appendix E). iv. Local parks are to be embellished with shade trees, garden areas and seating in accordance with a design approved by Council. v. The coastal parkland is to be embellished as a neighbourhood park by the developer. The coastal parkland is to contain the following facilities as a minimum: - At least 4000m2 of useable park area; - Three picnic shelters with picnic table settings; - Two electric barbeques under a covered shelter structure, including a water tap; - One drinking fountain and tap; - A children's playground with impact matting/softfall and multi-play equipment area equivalent to at least 100m2 in size; - At least 20 large canopy shade trees (with expected mature of size of at least 5m x 5m) within and around the picnic area; and - Low maintenance landscaping applied to the balance of the coastal parkland. vi. Landscaping embellishment of the balance of the coastal parkland, including weed removal/management is to extend to the edge of the new public coastal shared pathway which is located to the east of the coastal parkland. Such landscaping and embellishment is to be provided in a manner that reflects the coastal character and scenic values of The Coast Road and adjoining Coastal Reserve and be of a type that requires minimal maintenance over the long-term. …. viii. Durable public art is to be provided within the coastal parkland and/or neighbourhood centre. ….. xi. Open space areas and associated landscaping to be dedicated to Council are to be subject to a minimum 5 year maintenance period by the developer to ensure successful plant establishment. xii. Land within the coastal reserve is to be dedicated to Council at no cost."
Each of the claimed "material public benefits" upon which the Applicant relies to obtain a "credit" offset against contributions is required by the controls within BSDCP 2012 to be provided by the developer of the subdivision:

Construction of a roundabout at the Headlands Road/Coast Road intersection and consequential or ancillary works;
Pedestrian path and cycleway with pedestrian underpass beneath Headland Drive;
Provision of local parks;
Provision of a "neighbourhood park" within the coastal parkland and embellishment of the coastal parkland;
Provision of public art within the neighbourhood park; and
Dedication of the land within the coastal reserve to the Council at no cost.

There are two relevant contributions plans - the Roads Contributions Plan and the Open Space Contributions Plan. The provisions of each are similar, but there are important differences.
The purposes of the Roads Contribution Plan are in clause 2.3: "2.3 Purposes of this plan The primary purpose of the plan is to authorise: the council, when granting consent to an application to carry out development to which this plan applies; or an accredited certifier, when issuing a complying development certificate for development to which this plan applies, to require a direct contribution to be made towards: the provision, extension or augmentation of road infrastructure only where development is likely to require the provision of or increase the demand for that infrastructure; and the recoupment of the cost of providing, extending or augmenting road infrastructure within the area to which this plan applies. Other purposes of the plan are: to provide the framework for the efficient and equitable determination, collection and management of development contributions toward the provision of road infrastructure generated by development within the area; to determine the demand for road infrastructure attributable to development expected in the Shire in the future in order to determine a reasonable contribution by that development toward the provision of infrastructure that is required to meet that development; to ensure that the existing community is not unreasonably burdened by the provision of public infrastructure required as a result of extractive industry development in the area; to enable the Council to be both publicly and financially accountable in its assessment and administration of the plan; and to ensure Council's management of development contributions complies with relevant legislation and practice notes, and achieves best practice in plan format and management."
After providing for the method for determining the contributions to be made, the Roads Contributions Plan makes provision for dealing with Works in kind and other material public benefits in clause 2.16: "2.16 Works-in kind and other material public benefits This clause applies to development, or proposed development, on land subject to a section 7.11 contribution under this plan. A person may make an offer to the Council to carry out works or provide another kind of material public benefit or dedicate land in lieu of making a a Section 7.11 contribution in accordance with a condition imposed under this plan, in the terms described below. The Council may accept an offer by the applicant to make a contribution by way of works in kind (defined as an item in the works schedule to this plan), or material public benefit (defined as anything that is not included in the works schedule to this plan) or the dedication of land as referred to in the EP&A Regulation. The decision will be at the discretion of Council. Matters to be considered by the Council in determining offers of material public benefits Factors that Council will take into consideration in making its decision will include the following: The value of the works and/or dedication of land is at least equal to the value of the contribution that would otherwise be required under this plan. The standard and timing of delivery of, and security arrangements applying to, the works the subject of the offer are to Council's satisfaction. Whether the acceptance of the works and/or dedication of land will prejudice the timing or the manner of the provision of public facilities included in the works program of this plan. The extent to which works and/or dedication of land satisfies a demonstrated community need. The extent to which the works and/or dedication of land satisfies the purpose for which the contribution was sought. The conditions applying to the transfer of the asset to the Council are to Council's satisfaction. The financial implications for cash flow and the continued implementation of the works schedule included in this plan (including whether Council would need to make up for any shortfall in contributions by its acceptance of the offer). The overall benefit of the proposal. Works in kind and material public benefit agreements Council will require the applicant to enter into a written agreement for the provision of the works prior to the commencement of works or the development. Works in kind and material public benefit agreements shall be made between the Council and the developer and (if the developer is not the land owner) the land owner. Agreements shall specify (as a minimum) the works the subject of the offer, the value of those works, the relationship between those works and the contribution plan, the program for delivering the works. Where an offer is made prior to the issue of development consent, the offer may be in the form of a planning agreement. If the offer is made by way of a draft planning agreement under the EP&A Act, Council will require the agreement to be entered into and performed via a condition in the development consent. Planning agreements shall address the matters included in the EP&A Act and EP&A Regulation. Valuation of offers of works-in-kind and material public benefits The value of works offered as works-in-kind is the attributable cost of the works (or a proportion of the attributable cost if the offer involves providing only part of a work) indexed in accordance with the provisions of this plan. The attributable cost of works will be used in the calculation of the value of any offset of monetary contributions required under this plan. The value of any other kind of material public benefit will be determined by a process agreed to between the Council and the person making the offer at the time the development application is being prepared. Credit for material public benefits will not be given over and above the relevant direct contributions liabilities for any development."

A consent is granted

It is unsurprising that the development of a large seaside "greenfield" site occupies a significant period of time, from its embryonic stage until the grant of consent and involves considerable interchange and negotiation between a proponent and the consent authority. This case is no exception. It is appropriate to record some history.
Development Application 2017/244 was lodged with Ballina Shire Council on 17 May 2017.
On 29 August 2017 representatives of the Applicant and the Council met and discussed a spreadsheet outlining an approach for "contribution relief" prepared by the Applicant. The Council responded on 8 September 2017. In October 2017, Julia Kaul Planning & Policy, on behalf of the Applicant made a formal submission seeking exemption from contribution for local parks, district parks and regional open space and a credit against contributions for roads for the construction of the roundabout.
On 8 August 2018 the Council responded. The Council agreed to variation the contributions by giving an exemption for contributions to local parks, as the Applicant was providing two local parks. As to district parks the Council observed that "the neighbourhood park is effectively a local park additionally embellished at the developer's request…. the neighbourhood park is not a district park. … Council does not support the variation to exempt the development from the payment of district park contributions".
The Council did not support the exemption from Regional Open Space contributions.
In relation to roads contribution the Council's response was that the need for a roundabout was generated by the proposed development, the intersection was not considered critical in the functioning of the road network, the roundabout was not included in the Roads Contributions Plan and should the need arise the Council had options other than the construction of a roundabout to manage potential congestion at the intersection. Council did not agree to a credit.
The application was first reported to the Northern Regional Planning Panel (the Panel) meeting of 12 December 2018, with a recommendation for the issue of a deferred commencement consent, subject to four deferred commencement conditions, including: "iv) Drainage Reserve Dedication Plan - Coastal Buffer A Drainage Reserve Dedication Plan which details the lot(s) within the coast buffer (Lot 347) to be dedicated to Council as drainage reserve, and relevant staging of such, shall be submitted to and approved by Council prior to activation of the consent. This plan shall show either: 1) The dedication of the entire Lot 347 (as shown on the approved subdivision plan) containing stormwater and public infrastructure (footpaths etc) to Council as a drainage reserve free of cost. or 2) The dedication of drainage reserve lots to Council free of cost and creation of easements generally in accordance with Knobel Consulting Proposed Stormwater Layout Eastern Discharge Plan, P044 Issue C, as amended by Council (Council Record No. 18/91523), including: All stormwater treatment and detention basins are to be contained on their own drainage reserve lot including vehicular access tracks to the basins. All overland flow paths and drainage conveyance structures are to be contained in easements to Council's benefit. All footpaths/shared paths are to be contained in an easement for public pedestrian access. A right of carriageway from public reserve Lot 633 (PR6) to the Neighbourhood Park to the benefit of Council for the purpose of providing safe access for maintenance vehicles. All residual portions of Lot 347 are to be consolidated with Lot 346 (SL4) and connected via vinculum. The applicant is to also to detail how legal access is to be provided to all portions of the consolidated lot."
After considering the application, the Panel resolved to defer the determination of the matter until: 1. Further assessment and advice to the Panel by Council of draft revised conditions prepared on behalf of the Applicant and referenced at the meeting; 2. Submission to Council and the Panel of further support material, including court judgements, referenced by the Applicant's representative at the meeting; and 3. Written confirmation by the Applicant of their intention to dedicate proposed Lot 347 to Council free of cost.
On 9 January 2019 the Applicant accepted the proposed condition to dedicate the coastal reserve (lot 347) to the Council. In its letter of 29 January 2019, the Applicant said: "..we confirm that we are prepared to dedicate the Coastal Reserve to Council for public open space. Given the commercial realities and our need to obtain an approval to meet our pre-sales obligations, that dedication can be made to Council free of cost."
On 7 February 2019, the draft conditions were accepted by the applicant by email.
A supplementary report addressing the above matters was considered by the Northern Regional Planning Panel and the application was determined by way of approval on 20 February 2019, subject to conditions; the conditions which had been the subject of discussion, negotiation and agreement.
The reasons for the Panel's decision to grant the Consent were: "SEPP1 Objection The Panel has considered the Applicant's request to vary the minimum lot size development standard of clause 11(2)(b) of the Ballina Local Environmental Plan 1987 to permit the creation of allotment 347 as a public reserve. The Panel is satisfied that the Applicant's request adequately addresses the matters to be demonstrated by the Applicant under SEPP1 and only relates to Lot 347 and concurrence from the Department of Planning and Environment has been provided. Reasons for Approval of the development application: Deletion of deferred commencement conditions and insertion of amended conditions relating to the revised Wetland Rehabilitation and Monitoring Plan, Inter Urban Break and Wildlife Corridor Linkage, Freshwater Wetland EEC Offset Site, and Coastal Buffer Dedication into the body of the conditions. Amendment to the condition relating to the Inter Urban Break and Wildlife Corridor Linkage. The Developer is no longer responsible for preparing a Wildlife Corridor Restoration Plan for Stage 2. The Plan is now only required to relate to Lot 5 DP 1225206. The Freshwater Wetland EEC Offset condition has been amended to provide the Developer with the option of nominating an appropriate offset site (to the satisfaction of Council) within 5km of the development site, or provide funding for the restoration of the equivalent specified area of degraded coastal EEC native vegetation communities on Council managed land. Amendments to conditions relating to the dedication of the Coastal Buffer (Lot 347) in line with the Applicant's commitment to dedicate this land to Council free of cost. Deletion of redundant conditions and minor changes to numerous conditions for reasons of consistency and sequencing of the development. The proposal is consistent with the objectives of the Act and is considered to be in the public interest. CONSIDERATION OF COMMUNITY VIEWS In coming to its decision, the Panel considered written submissions made during public exhibition and heard from all those wishing to address the panel. The Panel notes that issues of concern included: Wildlife corridor offset; Dedication of buffer land to Council; Size and location of the neighbourhood centre; and Medium density impacts The Panel considers that concerns raised by the community have been adequately addressed in the assessment report and supplementary report that no new issues requiring assessment were raised during the public meeting. The Panel notes that these issues have been addressed by appropriate conditions that have been imposed following further discussions between Council and the Applicant."
An objection pursuant to State Environmental Planning Policy No. 1 - Development Standards was required because the Coastal Reserve was a lot with an area less than the minimum lot size required under cl 4.1 and the Lot Size Plan of Ballina Local Environmental Plan 2012 (BLEP 2012).

The Conditions of consent requiring the Works

The Applicant has identified the obligations in the following conditions of consent as constituting a material public benefit in respect of which an offset against contributions ought be allowed. It is necessary to set out in full each condition, so the extent of the work is fully understood.
Condition 1.9 "1.9 Coastal Reserve Dedication The entire Lot 347 (as shown on approved subdivision plan) containing stormwater and public infrastructure (footpaths etc) shall be dedicated to Council as a public reserve, free of costs, in accordance with the commitment made by the Applicant on 29 January 2019 (Council reference RN 19/6967). Dedication may occur progressively in accordance with the apprived staging sequence, or as otherwise agreed by Council."
It needs to be emphasised that the Applicant is not suggesting that Condition 1.9 is unlawful, nor has it led evidence of the value of the Coastal Reserve. The Applicant simply submits that the fact of the proposed dedication should be taken into account in allowing the offset sought. The dedication of the Coastal Reserve is "required" by part 5.7.4Cxii of BDCP 2012.
Condition 2.4 "2.4 Civil Works Major Civil infrastructure to be delivered during Stage 1A of the development includes: The Coast Road roundabout that provides access to the development site. Realignment of Headland Drive/road one Underpass of the realigned Headlands Drive Decommissioning of the redundant portion of Headlands Drive."
The roundabout is required by part 5.7.4 B ix of BDCP 2012 (see [25] above).
Condition 2.5 "2.5 Shared Footpath/Cycleway A minimum 2.5 metre wide concrete shared footpath/cycleway shall be provided in accordance with the … Plan .. and constructed progressively to suit the staging of the development …."
The proposed footway/cycleway will join up with an existing footway/cycleway which extends significantly beyond the Site in both directions. It is required by part 5.7.4 B xii and xiii of BDCP 2012 (see [25] above).
Condition 2.8 "2.8 Sharpes Beach Servicing As part of the construction works for the roundabout on The Coast Road install conduits only for sewer power and reticulated water to allow Council to provide for future servicing of the Sharpes Beach car park. Design plans are to be submitted to and approved by Council as part of the s138 application for The Coast Road roundabout."
Condition 2.30 "2.30 Neighbourhood Park Stage 1C The Neighbourhood Park (Lot 348) shall be embellished generally in accordance with the Landsite Local Park Concept Plan dated October 2017. The final design shall meet the following requirements: [There follows a number of requirements for vegetation, playground equipment, barbecue facilities, play areas, paving and the like are set out.]"
The Neighbourhood Park is required by part 5.7.4 C v of BDCP 2012 (see [25] above).
Condition 2.33 "2.33 Public Art The approved development must include permanent and durable public art to the value of at least $15,000 as an integral part of the development of the Neighbourhood Park (Lot 347). Details of the nature of the work/s (eg fountain, statue, mosaic etc) must show its approximate location and size and demonstrate how the proposed public art addresses the following Design Selection Criteria…"
The Public Art is required by part 5.7.4 C viii of BDCP 2012 (see [25] above).
Condition 2.35 "Central Local Park - Stage 1D (Lot 442) The central local park is to provide seating, a shelter with two picnic tables and BBQ. The final design shall meet the following requirements: [Thereafter is set out detailed requirements for embellishment of the local park within the Site.]"
The central local park is required by part 5.7.4 C iii and iv of BDCP 2012 (see [25] above).
There is no issue that the conditions have been lawfully imposed. That is, it is accepted that the Council had power to impose the conditions pursuant to s 4.17 of the EP&A Act. It is implicit in that acceptance that the conditions imposed satisfied the classic test known as the Newbury test derived from Newbury District Council v Secretary of State for the Environment [1981] AC 578 which has three components: "1 The condition must be for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2 The condition must reasonably and fairly relate to the development permitted. 3 The condition is not so unreasonable that no reasonable planning authority could have imposed it."
The Applicant points to the obligations imposed by the conditions and seeks to identify that the carrying out of those obligations gives a material public benefit which it seeks to offset against the contributions required by condition 5.2 of the Consent notwithstanding that the conditions were legally imposed.
The Applicant seeks an offset against the road works contributions levied in accordance with the Roads Contributions Plan for the intersection and ancillary works construction and the footpath/cycleway works. The Applicant seeks an offset against contributions levied for Regional Level Recreational Facilities pursuant to the OS Contributions Plan for the embellishment of the Coastal Buffer (Lot 347). And an offset against contributions levied for District Parks pursuant to the OS Contributions Plan for the Neighbourhood Park.
There is a discrete claim in relation to the Local parks to the effect that where as a consequence of the operation of the cap on contributions by the Ministerial Direction, the agreed "offset" of contributions for local parks pursuant to the OS Contributions Plan should be applied after the imposition of the cap whereas Council says otherwise. I deal with this issue after dealing with the major issues.

The Contentions

The modification application sought modification of the contributions condition to offset the work required under the various conditions identified above. The precise legal framework was not well identified in the application or the Statement of Environmental Effects.
In accordance with the Court's Practice Note - Class 1 Development Appeals the Council filed its Statement of Facts and Contentions and assumed that the question was a simple one of reasonableness arising by virtue of s 7.13(3) of the EP&A Act. Accordingly, the Council's contentions relating to the contributions were, relevantly: "1. Roads The proposed credit against contributions levied for Ballina Shire Roads is not reasonable in the circumstances of the case. …. 12. Coastal Buffer The proposed credit against contributions levied for Regional Level Recreational Facilities is not reasonable in the circumstances of the case. ….. 18. District Parks The proposed credit against contributions levied for the provision of a park being Lot 348 is not reasonable in the circumstances of the case. …."
The Contentions were particularised by reference to factual matters, principally directed to the propositions that the conditions were properly imposed as a consequence of the development the subject of the Consent.
The Applicant, helpfully, filed a Statement of Facts and Contentions in Reply which sought to properly identify the legal framework for the application and its legal basis. Relevantly it provided: "Contention 1 - Roads 1. The Applicant contends that Condition 5.2 of the Consent is unreasonable as the quantum of contributions imposed for road works was not reduced through the mechanism available in clause 2.16 of the Roads CP to account for an offset for the material public benefit provided by the road works to be undertaken by the Applicant in all the circumstances. ……. Contention 2 - Coastal Buffer 2. The Applicant contends that Condition 5.2 of the Consent is unreasonable as the quantum of contributions imposed for Regional Level Recreational Facilities was not reduced through the mechanisms available in clauses 4.2 and 5.3 of the Open Space CP to account for an offset for the dedication of land or material public benefit provided by the Applicant in all the circumstances. ……… Contention 3 - District Parks 3. The Applicant contends that Condition 5.2 of the Consent is unreasonable as the quantum of contributions imposed for District Parks was not reduced through the mechanism available in clause 4.2 and clause 5.3 of the Open Space CP to account for the dedication of land free of cost to the Council and its embellishment by the Applicant in all the circumstances. …….."
The Applicant provided particulars of its Contentions setting out the material facts upon which it relied.
The Applicant is clearly the moving party and it is incumbent on it to identify the source of the power which it seeks to have the Court exercise. It did so. However, the Council was not required to respond to the Applicant's Contentions in Reply. It would have been very beneficial for the Council to have responded to the Applicant's Contentions in Reply so that it was clear to the Applicant and the Court well before the hearing what the Council would submit about the legal basis upon which the Applicant was making its modification application. Be that as it may, through the course of the hearing the respective positions were made clear. Nevertheless, in a case such as the present the value to the parties and the Court of effectively requiring "pleading" of the respective cases of the parties should not be forgotten.

Some principles about contributions

It is well-established that the only source of power authorising the imposition of a condition on a development consent requiring the payment of a monetary contribution is to be found in s 7.11 of the EP&A Act (Maitland City Council v Ananbah Homes Pty Ltd (2005) 64 NSWLR 695 at [132]; [2005] NSWCA 455).
It is also well-settled that this does not preclude a consent authority from imposing a condition requiring the carrying out of works provided such a condition is authorised by s 4.17(1)(f) of the EP&A Act (Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41) (Olivieri). A condition of consent requiring work may lawfully be imposed where the need for that work is generated by the development (Olivieri), because it fairly and reasonable relates to the development.
A condition is not invalid because it also confers a public benefit in addition to serving the development the subject of the condition (Olivieri).
A challenge to a contribution condition under s 7.13(3) can be made by way of a modification application: Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 67 NSWLR 529; [2006] NSWLEC 502 at [22].
It is clear that the Court on appeal has a broader discretion than a council in that it can amend a condition found to be unreasonable even if the result is one not permitted by the relevant contributions plan: Rose Consulting Group Pty Ltd v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266 at 175 [35] (Santow JA, Meagher JA and Young CJ in Eq agreeing).
Unreasonable does not mean, or require, Wednesbury unreasonableness: Rose Consulting at 171 [27], 177 [46].
The first step for the Court on appeal is to determine whether the condition is unreasonable and the second step (to determine an appropriate contribution) involves the exercise of a discretionary power (Jonathon v Lismore City Council [2002] NSWLEC 134 at [15]).
The applicant bears the 'persuasive burden' to establish what any reduction in contributions the Court should allow: Lawson Clinic Pty Ltd v Ku-Ring-Gai Council [2016] NSWLEC 36 at [11] (Moore J).
The foregoing principles are common ground between the parties. There are two decisions, concerning not dissimilar applications to the present where the parties do however differ as to whether or not they should be followed or need to be considered.
In Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188 (Colonial) Moore AJ (as his Honour then was) determined in class 1 proceedings that the power to set aside a contributions condition must find a basis for unreasonableness in the contributions plan's application to the site rather than in some other burden imposed on the beneficiary of the consent (at [48]).
In Beaini Projects Pty Ltd v Cumberland Council [2019] NSWLEC 1547 (Beaini), Gray C, also in class 1 proceedings, found unreasonableness in a way which on one reading may not have been consistent with the approach of Moore AJ in Colonial. The decisions themselves will be discussed later, but the competing submissions of the parties gives rise to an interesting question.

Comity in class 1 proceedings

The Council submits that Beaini is plainly wrong and should not be followed as a matter of comity. The Applicant submits that as both cases were decisions in Class 1 of the Court's jurisdiction then I am not bound by either of the cases citing Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 (Segal).
The notion of judicial comity is without controversy. The most oft-cited expression of the principle is in Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812 in which at [820] Holland J said : "I do not think I am relieved by the decision of Needham J of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a judge to abide the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong."
The Council argued that the principle applies to a Commissioner in the Court and that I should follow Moore AJ in Colonial and that Beaini is wrong and should not be followed.
The Applicant submits the Court is not bound by Colonial and that it is not necessary to find that the decision in Beaini is wrong. The Applicant points to the decision of Dixon C (as the Senior Commissioner then was) in Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072 (Mac Services) where at [61] she said: "Having regard to the above provisions, there is no hierarchy under the [Court] Act which supports the proposition that a Commissioner is bound to follow the decision of a single judge in respect of an appeal under s 56A unless it is that matter on remitter."
Dixon C added at [67]: "67. If another member of the Court considers that a decision, apparently or actually on point, by another member of the Court is incorrect, there is no requirement to follow the earlier decision but proper reasons for not doing so should be given as a matter of comity: (see for example Bignold J in Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2003) 144 LGERA 33 expressly declining to follow the decision of Pain J in Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406 on a matter of interpretation in a merit appeal)."
Those observations were approved, with a qualification, by Pepper J in Challenger Listed Investments Limited v Valuer-General (No 2) [2015] NSWLEC 60 (Challenger) in which at [30]-[31] her Honour said: "30. I respectfully endorse the Commissioner's reasoning. Statements made by me to the contrary in Maygood Australia Pty Ltd v Willoughby City Council (No 2) [2013] NSWLEC 142 (at [21]) are wrong and ought not be followed. 31. I would only refine the Commissioner's reasoning in Mac Services (at [65]-[67]) by noting that although a commissioner is not, as a matter of precedent, bound to follow a decision of a single instance judge of this Court, he or she should do so as a matter of comity unless in the opinion of the commissioner the judgment is plainly wrong (for a discussion of the scope and application of that test see Fullerton Cove Residents Action Group v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [278]-[284]). But if, in the opinion of the commissioner the judgment is plainly wrong, then the commissioner is entitled to depart from it and no error will result in doing so."
Mac Services was a Class 1 appeal against the refusal of a development consent, but the issue about following a judge's decision arose in respect of the approach or construction of a savings provision in a local environmental plan. It was likely a question of law, or at least mixed fact and law.
The Applicant however points to the apparent tension between the principle of comity applying to Commissioners in class 1 proceedings (enunciated by Pepper J in Challenger) with the decision of the Court of Appeal in Segal. In that case Tobias JA (with whom Beazley and Basten JJA agreed) said at [56]: "48 It can be accepted for present purposes that the Council argued before Commissioner Watts that the principle of consistency in decision-making required him to follow and apply the decision of Commissioner Moore to refuse to sanction a breach of the retaining wall. However, a question arises as to the nature of that so-called principle and its relevance to adversarial litigation in Class 1 appeals in the Land and Environment Court. It is, in my opinion, a different concept to the practice that, as a matter of judicial comity, judges at first instance should usually follow the decision of another judge at first instance of co-ordinate jurisdiction unless convinced that that decision was wrong."
Segal was concerned with whether a Commissioner in Class 1 proceedings was required to follow, or at least to take into account, a decision of another Commissioner on a merit determination of a development application which was virtually identical (but on different land) to an earlier development application.
At [56] Tobias JA said: "56 It follows from the above discussion that Commissioner Watts was neither obliged to accept the Council's submission that consistency in administrative decision-making required him to follow the decision of Commissioner Moore, nor was he obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. This is not to say that it was not desirable for Commissioner Watts to have referred to that decision given the somewhat unique circumstances under which the two decisions were made: on the contrary, his doing so may well have avoided the present appeal. Nevertheless, it cannot be said that he committed an error of law in failing to refer to it."
In Arrage v Inner West Council [2019] NSWLEC 85 Preston CJ put the same proposition succinctly at [70]: "70…But there is no error on a question of law in the Commissioner not coming to the same conclusion as another Commissioner in another merit appeal. The Commissioner was not obliged to refer to the decision in Ahmad in order to distinguish it on its facts or otherwise find that it was wrong: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [56], [64] and [99(f)]. Nor was the Commissioner obliged to give reasons for not referring to or following the decision in Ahmad: Segal v Waverley Council at [94], [99(g)]."
The Applicant submits that in accordance with Segal the Court is not bound by either Moore AJ in Challenger or Gray C in Beaini because they each involved administrative decisions in the Court's Class 1 jurisdiction.
Commissioners of the Court exercising the Court's class 1 jurisdiction are undoubtedly making an administrative decision, albeit in a quasi-judicial environment. Commissioners frequently are called upon to make decisions on matters of law which are part of the decision-making process leading up to the ultimate decision, such as the determination of a development application. It is in those circumstances that one comes to consider the apparent "tension" between the decisions in Segal and Challenger.
Segal very clearly involved a simple question of merit, without any preceding question of law or mixed law and fact. The question was whether the impact on the heritage significance of a retaining wall by the insertion of a driveway access was acceptable. Each of the Commissioners in the two cases had virtually identical development applications before them and came to different conclusions. There was no legal analysis required or carried out by either Commissioner.
In Mac Services (endorsed in Challenger) it was not a simple question of merit. The question was the correct construction of, and approach in applying, a savings provision in a local environmental plan. I would regard this as a question of law, not of fact, nor of planning principle.
It seems to me that there is truly no tension between Segal and Challenger when it is understood that the two decisions related to different aspects of the exercise of the Court's Class 1 jurisdiction. There is no obligation to follow, or even refer to and take into account, a decision which is a purely merit based decision by another Commissioner (or judge). As is recognised in Segal, decisions will be based on the evidence before the Court in each case, and a different conclusion may be reached, even on similar evidence in two cases.
In my opinion however the position is different in relation to questions of law. Questions of law are obviously not merit assessments in themselves. They are questions which, in the particular case in the Court's class 1 jurisdiction, are necessary to determine in order to make the ultimate administrative decision. It is that type of determination that Mac Services and Challenger refer to as being apt to apply the principle of comity in decision making. That is, where a Judge at first instance (or Commissioner) has made a determination on a question of law, then it should be followed as a matter of comity unless the Commissioner considers it is "plainly wrong" (Challenger) or convinced that the judgment was wrong (Michael Realty).
It is on that basis that I will consider Colonial and Beaini after an analysis of the contributions scheme.

The contributions scheme

It has been said many times that the starting point in questions of statutory construction is the text of the provision or provisions in question (Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]). The text, however, is to be considered in its context, including the surrounding provisions of the legislation in which the provision in question appears. That is to say, the legislation is read as a whole and on the assumption that each section has meaning and is not internally inconsistent.
A consent authority may impose a condition requiring the payment of monetary contribution (s 7.11(1) of the EP&A Act). Such a condition may be imposed only if it is determined in accordance with a contributions plan (s 7.13(1)). A consent authority may make a contributions plan (s 7.18(1)) for the purpose of imposing conditions under s 7.11(1).
Apart from the requirement that the contribution be in accordance with a contributions plan, there is a further mandatory consideration prior to the imposition of the condition. Pursuant to s 7.11(6) the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost. It should be immediately noticed that the reference to the provision of the benefit is the past tense - the consent authority is to take account of the material public benefit which has already been provided, prior to the imposition of the condition requiring a monetary contribution.
There is a qualification to the requirement to take the benefit into consideration - the benefits which are not to be taken into consideration are any benefits provided as a condition of the grant of development consent or if a planning agreement so provides (s 7.11(6)(a) and (b)). That is, the provision of the material public benefit which has already been provided must have been done so as a voluntary provision, and not involuntary in the sense of the obligation imposed by virtue of a condition of development consent. It is also to be observed that the legislation anticipates that the lawful imposition of a condition of a development consent has the capacity to confer a material public benefit. If that were not the case, then it was unnecessary to exclude such material public benefits from consideration prior to the imposition of the contributions condition.
The contributions scheme therefore begins with the proposition that the consent authority can only impose a contributions condition in accordance with a contributions plan and must take into consideration material public benefits which have been provided prior to the grant of development consent, unless those material public benefits were provided as a consequence of the grant of an earlier development consent or to be ignored pursuant to a planning agreement.
The Act does not expressly deal with whether a material public benefit which potentially will be provided in the future because of the imposition of a condition of the development consent proposed to be granted with the contributions condition, is a relevant consideration in determining the amount of the contribution.
The Act does however deal with the consideration of material public benefit after the grant of development consent and the imposition of the contributions condition.
Relevantly, s 7.11(5) of the EP&A Act provides that the consent authority may accept the provision of a material public benefit in part or full satisfaction of a contributions condition which has been imposed. The provision empowers a consent authority to accept something other than money in full or part satisfaction of a condition which has already been imposed. It plainly applies after the grant of development consent and is not expressed in mandatory terms. In contradistinction to s 7.11(6) where it is mandatory to take into consideration a material public benefit which was truly voluntary prior to the imposition of a condition, s 7.11(5) empowers the consent authority to accept an alternative to money in full or part satisfaction of a condition which has already been imposed and it can do so as a matter of its own discretion.
There is no provision in the Act requiring a consent authority to make provision in a contributions plan for the circumstances in which it will accept payment of contributions by the provision of a material public benefit. That is so because the terms of s 7.18 authorise the making of a contributions plan for the purpose of imposing conditions, inter alia under s 7.11(1). The levying of the contribution is the subject of the contributions plan and compliance with the plan is the constraint upon the consent authority when imposing the contributions condition.
The scheme and provisions of the Act are reflected in the Roads Contributions Plan and the OS Contributions Plan.
Clause 2.9 of the Roads Contributions Plan authorises the imposition of a contributions condition relating to the provision of roads and traffic infrastructure as specified in the works schedule to the plan. It is to be calculated in the manner described in later provisions. This is a provision exercising the power in s 7.18 of the EP&A Act to make a contributions plan in order to impose a condition in accordance with s 7.11 as allowed by the contributions plan in satisfaction of s 7.13(1).
Clause 2.10 of the Roads Contributions Plan deals with "Other contributions to be taken into account" - the subject matter of s 7.11(6). This is a mandatory relevant consideration prior to the imposition of the contributions condition. Clause 2.10 identifies the matters the Council will take into account in determining whether or not the material public benefit will reduce the contributions which will be required by the imposition of the contributions condition. It provides relevantly: "A reduction in the contribution requirement under this plan may be considered where it can be demonstrated by the applicant that: the benefit was not required to be provided under a condition of consent or under a planning agreement entered into with Council; and the consequent reduction in contribution would not adversely affect the plan's cash flow or prejudice the continued implementation of the works schedule included in this plan; and the land, money or other material public benefit previously provided either continues to provide an ongoing benefit to the community, or offsets some of the need for community infrastructure identified in this plan." (Emphasis added)
Clause 2.16 of the Roads Contributions Plan is a provision dealing with the subject matter of s 7.11(5) of the EP&A Act - works in kind and other material benefits - where there has been a contribution imposed pursuant to s 7.11 of the EP&A Act. The whole of the clause is extracted at [29] above. The essential elements of clause 2.16 are:

There is a development consent which has a condition requiring a contribution under the Roads Contributions plan;
A person may make an offer to the Council to carry out works in kind (works in the schedule to the contributions plan) or provide a material public benefit in lieu of making a contribution in accordance with a condition imposed under the plan;
The Council may accept an offer;
The decision to accept or not accept the offer will be at the discretion of Council; and
There are several criteria set out in the clause which the Council will take into account in making the decision.

Clause 2.16 of the Roads Contributions Plan is a clause which sets out how the power granted to the Council in s 7.11(5) of the EP&A Act will be exercised. It reflects the terms of s 7.11(5) in that it refers to how a contribution which has already been imposed by a condition of a development consent may be paid by a means other than direct monetary contribution if the Council accepts the offer. The discretion in s 7.11(5) ("may accept") is reflected in clause 2.16 - 'the decision [to accept an offer] will be at the discretion of the Council".
Clause 2.16 of the Roads Contributions Plan is not a provision relating to the imposition of a contributions condition. It is a provision relating to the potential for the Council to accept a material public benefit in part or total satisfaction of the monetary contribution required by the contributions condition.
The breadth and nature of the matters to be considered by the Council in determining offers of material public benefits should also be observed (set out in full at [29] above) and includes:

Whether the acceptance of the works and/or dedication of land will prejudice the timing or the manner of the provision of public facilities in the works program in the plan;
Whether the works satisfies a demonstrated community need;
The extent to which the works and/or dedication of land satisfies the purpose for which the contribution was sought;
Financial implications including whether the Council would need to make up any consequent shortfall in contributions; and
The overall benefit of the proposal.

These criteria do not offer themselves readily for objective determination, against measurable standards. There are judgments to be made, which the Council says are indicative of policy decisions, and in respect of which the Council submits there is no role for the Court to play in the present appeal.
The OS Contributions Plan similarly has appropriate provisions identifying how contributions for parks and open space are to be determined and in clause 4.1 authorising the imposition of a contributions condition.
Clause 4.7 of the OS Contributions Plan provides that the Council may, after considering a written application reduce the contribution which would otherwise have been calculated in accordance with the plan. Such a request is to be considered as part of the assessment of the application. It is clear that clause 4.7 is a provision which operates prior to the grant of development consent and therefore before the imposition of a contribution condition. It is intended to empower the Council to vary the proposed contribution to a lesser sum, presumably taking into account perhaps site specific considerations, or, for example, the prior voluntary provision of a material pubic benefit.
Section 5.3 of the OS Contributions Plan (set out in full at [39] above) is the equivalent provision to clause 4.16 of the Roads Contributions Plan. The heading to section 5.3 asks the question: "Can the contribution be settled by dedicating land or undertake (sic) works?"
What is clear from clauses 5.3.1, 5.3.2 and 5.3.3 is that:

The decision to accept settlement of a contribution by way of works in kind or the dedication of land is at the sole discretion of Council;
An offset will only be granted if the provision of land or works are included in the plan's work schedule;
Offsets will not be granted in exchange for developers providing material public benefits unrelated to the Council's section 94 (sic) program.

That is to say, unlike the Roads Contribution plan, the OS Contributions plan does not anticipate that an obligation to make a contribution pursuant to a contributions condition can be met in whole or in part by the provision of a material public benefit which is not part of the plan's works schedule. The OS Contributions Plan makes it clear to the reader that the power granted by s 7.11(5) to accept a material public benefit in full or part satisfaction of a contributions condition will only be exercised, if at all, in circumstances where the proposed benefit is in the plan's works schedule and not otherwise.

Evidence

Expert evidence was provided by: Applicant Council Quantity Surveying S Bolt P O'Donnell Traffic Engineering G Holdsworth S Healey Planning J Kaul P Grech
Oral evidence was given by the traffic and planning experts. The quantity surveyors had reached agreement on their task of determining the cost of provision of the roundabout at the intersection of Headland Drive and The Coast Road. The sum agreed is $2,427,708.25 excluding GST.
Although the evidence was comprehensive, the ultimate determination of this case truly does not turn on the evidence. Nevertheless, I have referred to the evidence where relevant in the consideration of the application. It is not necessary to separately summarise the whole of the evidence.

Submissions

The Applicant helpfully summarised its submissions as to the legal path to the modification of the Consent in its written reply as follows: 1. Condition 5.2 of the Consent requires the payment of "monetary contributions" as set out in Annexure 1 to the Consent. 2. Condition 5.2 of the Consent is a condition under s 7.11 which is "of a kind allowed by a contributions plan", the applicable contributions plans are identified in condition 5.2 itself. 3. The "unreasonableness" in the particular circumstances" of this case is that Condition 5.2 requires the maximum payment of applicable monetary contributions calculated in accordance with the contributions plans without applying the applicable provisions in either clause 2.16 of the Roads Contributions Plan or clause 4.7 of the OS Contributions Plan to reduce the payment of the monetary contributions otherwise calculated in accordance with the contributions plans. 4. Consistent with the decisions in Colonial Credits and Beaini Projects the "unreasonableness" arises from the application of the Roads Contributions Plan and the OS Contributions Plan in the calculation of the monetary contributions themselves and not from "some other burden imposed on the beneficiary of a development consent outside the plan" [quoting the Council's submission]. 5. The unreasonableness in the circumstances of the case which the Court ought to remedy is not as to the "non-exercise of a discretion". Rather the Applicant contends that the calculation of monetary contributions which is of a "kind allowed by a contributions plan" must accord with the application of all of the relevant provisions of the contributions plan. This relevantly includes the provisions for the reduction of monetary contributions by application of clause 2.16 of the Roads Contribution Plan or clause 4.7 of the OS Contributions Plan. 6. The reasonableness of monetary contributions cannot be shielded by provisions of a contributions plan which "reserve to itself flexibility". This would have the effect of ousting the Court's jurisdiction to remedy the unreasonable application of a contributions plan as allowed by s 7.13(3) of the EP&A Act. 7. There is no "ad hoc" contributions planning. The Council in this case imposed conditions of consent requiring the dedication of land free of cost to the Council and for works-in-kind of the hind allowed in the Roads Contributions Plan and the OS Contributions Plan. The Court must assume that those conditions are imposed under s 7.11 of the EP&A Act in order to be valid. The Council accepts that the imposition of these conditions are for a planning purpose. It must follow that there is nothing 'ad hoc" about reducing the quantum of the monetary contributions as is reasonable in the circumstances. 8. In the alternative the Applicant submits that Colonial is wrong and should not be followed.
The Council's submissions as to the legal path can be summarised as follows: 1. The relevant circumstances that can be within the scope of review under s 7.13(3) are not unconstrained or unlimited. They must be found in the application of the contributions plan itself to a site, rather than some other burden imposed on a beneficiary of a development consent, outside the plan (applying Colonial). 2. A discretionary mechanism such as those in the contributions plans here, and the non-use of them does not give rise to a relevant unreasonableness in the sense used in Colonial. 3. There is a risk of "ad hockery" (see Rose Consulting) from a case by case redirection of contributions is a powerful reason in principle why Colonial is right and Beaini is wrong. 4. The non-exercise of discretion (not applying clause 2.16 and clause 4.7) is not an application of the plan. Each of the contributions plans make it clear that the discretion is intended to be solely a decision for the council, which is best placed to balance the various factors that will impact on its ability to provide planned amenities and services; 5. It is no part of the power under s 7.13(3) of the EP&A Act that the Court undertakes contributions planning in an ad hoc manner within an appeal. The curial forum is unsuited to such an exercise, not least because of the far greater extent of public participation in contributions planning.

Consideration

For the purposes of this consideration I make the assumption that there is a material public benefit from the works required as a consequence of the imposition of the relevant conditions of consent. I remain required to make the legal assumption as to the validity of those conditions, and, in particular, that the conditions related to the development, and the need for the works was generated by the development the subject of the Consent.
At its most stark, the Applicant's case is that the condition requiring the contributions is unreasonable because in imposing the condition the Council failed to exercise the power to accept a material public benefit in part or full satisfaction of a proposed contribution pursuant to a condition which had not yet been imposed. In my opinion the Applicant has conflated two separate steps authorised by the EP&A Act, and on the proper analysis the condition is not unreasonable.
As I have explained above, the EP&A Act only authorises a consent authority to take into consideration a material public benefit in two circumstances: 1. Where the material public benefit was provided prior to the grant of development consent and was not provided as a consequence of a prior development consent or planning agreement; 2. After the grant of consent and as a discretionary power to accept the material public benefit in part or full satisfaction of a contribution required by a contributions condition which has been imposed.
The present situation is neither of those circumstances.
It is appropriate to deal separately with the Roads Contributions Plan and the OS Contributions Plan.
The Applicant submits that the unreasonableness arises because of the failure of the Council to apply the applicable provisions in clause 4.7 of the Roads Contributions Plan. In its terms clause 4.7 applies after the grant of development consent and the imposition of the contributions condition. It is a provision in the Roads Contributions Plan which reflects the power to accept payment of contributions by accepting material public benefits in s 7.11(5) of the EP&A Act.
There are a number of reasons why in my opinion the contributions condition in relation to roads is not unreasonable.
First, in my opinion a condition is not unreasonable because in imposing the Council failed to take into consideration a circumstance which has not yet arisen. That is, the power which the Applicant asserts should have been exercised is not a power which could have been exercised in imposing the contributions condition. The power to allow a credit for the provision of a material public benefit which has not yet been provided only arises after the grant of development consent and the imposition of the condition.
The offset by a future provision of a material public benefit can only occur after the condition requiring the contribution is imposed. During the hearing I raised this issue with the parties, describing it as a temporal issue - the power sought to be relied upon did not arise at the point of the imposition of the condition. The Applicant was in truth complaining about the Council's failure to accept a material public benefit in part or full satisfaction of the contributions condition which had been imposed. An alternative way, in accordance with the legislative scheme, to characterise the Applicant's claim is that the contributions condition has become unreasonable by the Council's failure in refusing the modification application to allow the credit for the future provision of material public benefit. I will deal separately with that proposition.
Whilst the power to amend a development consent is broad, it does not extend in my view to permitting the conflation of two separate steps identified in the EP&A Act and the Roads Contributions Plan - the imposition of a contributions condition and the acceptance of a material public benefit in full or part satisfaction of the contribution payable pursuant to a contributions condition.
Second, the material public benefit arising from work carried out pursuant to a lawful condition of development consent has no role to play in determining the reasonableness of a contributions condition in the very same development consent. It would not be consistent with the scheme of the Act to take into account a material public benefit arising from the imposition of a condition of development consent in the very same instrument. The power in s 4.17 to impose conditions on a development consent includes the imposition of conditions which must meet the Newbury test but may also happen to provide a public benefit. That is not controversial, but the Applicant suggests that it is that very same benefit for which it should receive a credit. The EP&A Act does not contemplate such a "credit" in its terms or by implication.
In fact, the textual indications are to the contrary. Section 7.11(6) of the EP&A Act proscribes taking into account a material public benefit which arises from a condition of an earlier development consent. That sub-section is a plain acknowledgment that lawful conditions of consent can result in a public benefit in addition to serving the development the subject of the consent. However, the sub-section makes it plain that that incidental benefit is not a matter from which the proponent is to benefit in a reduction of contributions in developments in the future. This is in the context of the sub-section making it mandatory to take into account a material public benefit previously provided when imposing a contributions condition, but expressly excluding from consideration the material public benefit from works or land required to be carried out or dedicated pursuant to a condition of an earlier development consent.
It would be an absurd outcome if the material public benefit of the works required here could be taken into account in the determination of the contribution condition of this Consent, whereas the benefit could not be taken into account in a future development application by the same proponent. It would be contrary to the scheme of the EP&A Act to find a contributions condition unreasonable because a properly and lawfully imposed condition also provided a material public benefit.
Again, I recognise the breadth of the power to modify a development consent and that it is a facultative and beneficial power. The discretion is of course not unfettered and must be exercised having regard to the object, scope and purpose of the power and the legislative scheme within which it falls. Having undertaken the consideration set out above, the broad power to modify a consent does not extend to defeating the purpose of the scheme which I have set out.
Similarly, it is recognised that pursuant to s 7.13(3) the Court is not bound by the Roads Contributions Plan and again the Court has a broad discretion. The starting point however must be a finding that the condition is unreasonable, even if in compliance with the contributions plan. In my opinion that does not permit the Court to ignore the purpose of the contributions scheme in the EP&A Act which is nevertheless reflected in the Roads Contribution Plan. The purpose is clear and that is that the beneficiary of a development consent is not entitled to demonstrate unreasonableness by pointing to the works to be carried out in accordance with a condition of consent.
The Applicant's case is plainly set out in [76] above where it submits that the unreasonableness arises from the application of the Roads Contribution Plan itself, in that the Council failed to apply the provisions of clause 4.7. For the reasons I have identified the Council was not obliged to at the time of the grant of development consent to consider the provisions of clause 4.7 of the Roads Contributions Plan.
Third, although related to the first two reasons, I do not agree that the asserted unreasonableness arises from the application of the Roads Contributions Plan. It arises from the burden imposed on the beneficiary of the consent by the conditions of consent requiring the carrying out of works in respect of which the Applicant seeks a "credit". Applying the dicta of Colonial, there can be no unreasonableness.
Colonial was a case similar to the present. A contributions condition was imposed upon a development consent for residential subdivision. A condition was also imposed which required the proponent to construct a drainage system (separate to intra-allotment drainage) to convey stormwater generated from the catchment above the site, through the site and to Narrabeen Creek below the site.
The Court considered the predecessor to s 7.13(3), then s 94B(3), which was in relevantly identical terms: at [39]. The Council submitted in that case that s 94B(3) was not engaged because the burden did not arise from the application of the contributions plan that produced the contributions condition: at [40].
After considering Rose Consulting, Moore J observed at [47]-[48]: "The interlinking made clear by his Honour [Santow JA] of the enabling and the disallowing provisions and the comparison between the requirement for reasonableness in the enabling provision and unreasonableness in the disallowing provision clearly identifies the limitation on the scope of s94B(3) as being confined to reasonableness in the context of that which is contained in and imposed by the contributions plan itself. The opening sentence of [35] and the first three sentences of [37] in his Honour's reasons reinforce my conclusion that the power to set aside a contributions' condition, such as condition C19, must find a basis of unreasonableness in the contribution plan's application to the site rather than in some other burden imposed on the beneficiary of the development consent where that burden is said to be unreasonable but has no foundation whatsoever in the contributions plan itself." (emphasis added)
Neither party suggested that Colonial was wrongly decided, except for an alternative submission by the Applicant which was not developed in writing or in oral submissions.
The decision in Colonial is founded on dicta of Santow JA in Rose Consulting. In that case the Court of Appeal was dealing with the meaning of "unreasonable" in the context of the then EP&A Act provisions equivalent to the present ss 7.11 and 7.13 of the EP&A Act. Santow JA delivered the judgment of the Court with whom Meagher JA and Young CJ in Eq agreed.
Santow JA noted that (using the present section numbering):

A consent authority may impose a condition requiring the dedication of land or payment of monetary contribution for future public amenities (s 7.11(1));
The condition under s 7.11(1) may be imposed only to require a reasonable dedication or contribution (s 7.11(2));
A consent authority may impose a condition requiring the dedication of land or payment of monetary contribution as recoupment for past expenditure on public amenities (s 7.11(3));
The condition under s 7.11(3) may be imposed only to require a reasonable dedication or contribution (s 7.11(4));
The consent authority can only impose such conditions if determined in accordance with a contributions plan (s 7.13(1)); and
A condition may be disallowed by the Court on appeal because it is unreasonable even if determined in accordance with a contributions plan (s 7.13(3)).

It follows his Honour said, that the unreasonableness referred to in s 7.13(3), having the logical meaning of "not reasonable", must be related to the requirement for reasonableness in, relevantly here, s 7.11(2). That is, the review power of the Court is to ensure that the contribution required by a 7.11(1) contributions condition is reasonable in accordance with s 7.11(2) - which in turn means a reasonable dedication or contribution to the provision, extension or augmentation of public amenities and public services.
In Colonial, Moore AJ applied the reasoning of Santow JA to conclude that unreasonableness in s 7.13(3) means unreasonableness arising out of the application of the contributions plan - if the contributions plan itself requires an unreasonable contribution to the provision of public amenities and services then the condition is unreasonable. His Honour Moore AJ on the facts in Colonial applied the corollary of that principle to find that it is irrelevant to the question of unreasonableness to consider an obligation imposed by a condition of consent unrelated to the contributions plan.
Put more simply, unreasonableness in s 7.13(3) of the EP&A Act is determined by asking whether a condition imposed in accordance with a contributions plan requires an unreasonable dedication or contribution for the provision, extension or augmentation of the public amenities and services concerned having regard to the terms of the plan itself. Does the contributions plan mandate an unreasonable result?
I agree with the principle adopted by Moore AJ in Colonial applying the dicta of Santow in Rose Consulting. The principle is the logical conclusion of the analysis of the scheme by Santow JA, considering the context of "reasonable" and "unreasonable" in the various sections. It is also consistent with my two earlier reasons for rejecting the Applicant's case. The "burden" imposed by a condition of development consent requiring works to be carried out does not arise by the application of the plan itself. And the Colonial principle focusses on unreasonableness at the point of imposing the contributions condition, eschewing any question which may arise under s 7.11(5) of the EP&A Act about a consent authority accepting a material public benefit in full or part satisfaction of a contributions condition.
The decision in Colonial is also consistent with good planning policy for the reasons summarised in the Council submissions in the following terms: "This is because the contributions planning process, resulting in the contributions plan, is itself inherently a working-out and an expression of appropriate public policy with respect to the provision of public amenities and services, determined by the relevant council, as informed by public consultation. Thus, it is a council, informed by submissions from public exhibition of a draft contributions plan, that determines the types and kinds of public amenities that should be provided to cater for its population."
The decision of Moore AJ in Colonial is one of a question of law and therefore a decision to which, in my opinion, the principle of comity applies. It is not a decision which can be ignored, as was suggested by the Applicant in reliance upon Segal. For the reasons which I have expressed, whilst not bound by the decision in Colonial, I will follow it and apply it because it is correct.

The value of the works equals or exceeds the contribution required

The evidence was clear that the cost of construction of the roundabout exceeded the contribution required by the Roads Contributions Plan.

Whether the acceptance of the works and/or dedication of land will prejudice the timing or the manner of the provision of public facilities included in the works program

There was no specific evidence on this subject matter. The Council submitted that the significant reduction in contributions to the works identified in the Roads Contributions Plan will inevitably result in the delay in the provision of the facilities because there will be a funding shortfall.

The extent to which works and/or dedication of land satisfies a demonstrated community need

It was common ground that the need for the roundabout was generated by the development the subject of the Consent. The Applicant however argued that there was an existing need to upgrade the intersection of Headland Road and The Coast Road and therefore the upgrade of the intersection satisfied a demonstrated community need.
I accept that the traffic experts agreed that the intersection was at or near to capacity at the time of the grant of development consent, and that it was likely that at some stage in the near future some steps would be required to address the issue, even in the absence of the approved development. There was a difference of opinion as to whether the roundabout was necessary in the absence of the approved development or some other step could be taken.
The Council's expert Mr Healey said that there was an available mitigation measure in the absence of any roundabout intersection - a banning of the right-hand movement from Headland Drive to the Coast Road. He said the opportunity for such a mitigation measure arises because a roundabout intersection was recently constructed a short distance to the north along the Coast Road, at the intersection with Skennars Head Road. In this right-hand turn ban scenario, he opined that traffic could readily drive either north on Headlands Drive and then east onto Skennars Head Road, then turning on the Skennars Head Road/Coast Road roundabout to the south. Or, to make a left-hand turn on Headlands Drive travelling north, and a u-turn at the Skennars Head Road/Coast Road intersection.
The Applicant's expert Mr Holdsworth criticised the measure saying it was less than optimal, and discriminatory. Mr Holdsworth also said in oral evidence that it was in his opinion unacceptable but not on safety grounds, rather an unsatisfactory or unacceptable solution for the local community. Mr Holdsworth said the trips to Skennars Head Road roundabout would take about an additional two-and-a-half-minutes driving for a portion of the community (less for others) if there was no right hand turn at the Headland Road/The Coast Road intersection.
It is true that there was a demonstrated community need for treatment of the intersection. But that does not mean there was a demonstrated community need for a roundabout at the intersection. I am not satisfied that there was such a demonstrated community need at the time of the grant of development consent in 2019. Even if there be a degree of inconvenience to some members of the local community by banning the right hand turn from Headland Road, it was a legitimate traffic management tool available to the Council at a significant lesser cost than a roundabout. The works program in the Roads Contributions Plan had not identified the intersection as requiring works, but BSDCP 2012 identified the construction as the responsibility of the developer of the lands the subject of the Consent.
The Applicant points to the language of BSDCP 2012 as indicative of a demonstrated community need: ix Application for the first stage of the development (or part thereof) is to be accompanied by a traffic assessment and plan to upgrade the Headlands Drive/The Coast Road intersection to meet the needs of the development and existing road users by way of an appropriately configured roundabout.
I am unable to conclude from that statement that the existing road users alone demonstrate a community need for a roundabout. The provision is clear that the roundabout will serve the development and the existing road users. It is perhaps obvious that, accepting that the roundabout is necessary to serve the needs of the development, it will not be used solely by those associated with the development, but that it will be used by other road users.
The evidence was that the use of the roundabout from Headlands Drive for the purpose of a right hand turn into The Coast Road will be split in the order of 38% to 40% or thereabouts by traffic from the development and the balance by others. That is a logical acceptance that others will benefit from the roundabout but is also consistent with the lawfulness of the condition requiring the roundabout because of the amount of traffic generated by the development. (The evidence was that the existing intersection was essentially at capacity because of the time taken for the right hand turn from Headland Drive onto The Coast Road.)
I am not satisfied that there was a demonstrated community need for a roundabout to be constructed at the intersection.
The related work of the underpass, the access to the beach carpark and the construction of conduit capacity come about as a consequence of the construction of the roundabout in the proposed location, a location slightly removed from the previous intersection, so as to be in the appropriate location having regard to other traffic and road design matters. The need for the ancillary work is from the proposed development and the consequence of the construction of the roundabout.

The extent to which the works satisfies the purpose for which the contribution was sought

There was no specific evidence on this matter, but there was no need for evidence. All that is necessary is to compare the purpose of the contribution in the Roads Contribution Plan and the purpose of the works in constructing the roundabout. It is necessary to consider the meaning of "purpose" in this context. At its highest, if the purpose of the contributions is to improve road infrastructure in the Ballina Shire local government area then the construction of the roundabout meets that purpose.
However, in my opinion, the purpose must be more specific. The Roads Contributions Plan identifies works in parts of the Shire on specified roads and intersections. The purposes of the contributions are to fund those works to achieve the objectives of those works. The objectives may range from improving safety, to improving efficiency, or to provide more parking as the case may be. It is feasible that a material public benefit could address the purpose of the works in the works schedule by doing other works. That is the meaning of this consideration - the extent to which, if at all, the material public benefit will satisfy the purpose of works in the works schedule which are to be funded by contributions made pursuant to the Roads Contributions Plan.
This construction of this provision is consistent with the nature of a contributions plan. A council determines the needs which will be generated by development and prioritises where the work funded by the contributions plan is to be carried out. If one of the priorities can be met by a material public benefit which is not in the works program then the council will take that matter into account in any "offset" in contributions.
In this case there is no relationship between the roundabout construction and the objectives or purposes of the works to be funded by the Roads Contributions Plan. There is no evidence, nor on examination of the Roads Contributions Plan could there logically be such evidence, that the roundabout construction will render any of the work to be funded by the plan unnecessary, nor meets its objective.

The financial implications for cash flow and the continued implementation of the works schedule included in this plan (including whether Council would need to make up for any shortfall in contributions by its acceptance of the offer)

There was no evidence led on this matter. Whilst it is self-evident that if the contributions to be raised by a contributions plan are significantly reduced then there is a funding shortfall and a range of possible consequences. The consequences can range from the Council not carrying out works, delaying the carrying out of works or finding other funding opportunities. The Council did not lead any evidence as to what it perceived the consequences would be in this case and was criticised by the Applicant for its failure so to do. The Council simply submitted that there will be the range of possible consequences, all of which are negative in nature.
I do not consider it is necessary to make a finding as to the specific consequence. It is enough to note that there would be a significant reduction in the funds available for the works identified in the works schedule of the Contributions Plan. A delay in what are assumed to be necessary works has an adverse impact on the community. Additional funding is an impost on the community or a sector of the community, which is also an adverse outcome. In Karimbla Properties (No 13) Pty Limited v Council of the City of Sydney; Meriton Apartments Pty Ltd v Council of City of Sydney; Karimbla Properties (No 25) Pty Ltd v Council of City of Sydney [2019] NSWLEC 133, when dealing with a question of recategorization for rating purposes and the consequences of loss of funds due to a retrospective change, Moore J came to a similar conclusion. His Honour simply observed at [77] to [80] that there would be negative consequences.
I conclude that the financial implications are negative.

The overall benefit of the proposal

The proposal referred to is not the development the subject of the consent but the offer of the material public benefit. There are no parameters for assessing the "overall benefit of the proposal", yet another indication that this is a matter for the discretion of the Council. Be that as it may there is obviously some benefit of the works to the community beyond servicing the development. The roundabout users will find the right-hand turn out of Headland Drive easier and safer to accomplish. The underpass users will have a safer way to cross Headland Drive. The footpath users will have the benefit of the footpath.
There is a reasonable overall benefit to the community outside the users of the development of the carrying out of the works. Of course, benefit does not equate to the meeting of a need, and this conclusion does not affect my earlier conclusion about the absence of a demonstrated community need.
The balancing exercise to be undertaken in clause 2.16 of the Roads Contributions Plan, in the Applicant's case, is to take into account all the material considerations and then determine, that the value of the material public benefit of the works should be taken into account in the contributions condition, rendering the contributions condition unreasonable. If the discretion was one for the Court to exercise, then I would not allow the value of the material public benefits in determining the contribution to be paid principally for the reasons set out in the preceding paragraphs discussing the criteria.
It is necessary in the balancing exercise in clause 2.16 to recognise that the benefit of the works is not exclusively the public benefit. First and foremost, the benefit is to the development, it having generated the need for the roads works. Second the works are not meeting a demonstrated existing demand. The fact that there is a benefit does not mean that there was a demonstrated need. Third there is a negative financial impact on the capacity to carry out the work in the works schedule, works which have been prioritised by the Council across the Shire. Fourth, the works do not relate to any of the objectives of the works which is in the works schedule.
Accordingly, I do not consider that the contributions condition is unreasonable because the Council failed to allow any amount for the material public benefit flowing from the works required as conditions of the Consent as a matter of merit, on the assumption that the Council was required to consider clause 2.16 in imposing the contributions condition as submitted by the Applicant.
Having made that finding, it is unnecessary to consider whether the scope of review in s 7.11(3) extends to a condition becoming unreasonable due to circumstances coming into existence after the grant of development consent, as distinct from unreasonableness at the time of the imposition of the condition. At [143] above I referred to the Applicant's complaint properly characterised was that the contributions condition became unreasonable because in refusing the modification application the Council refused a proposal pursuant to cl 2.16 of the Roads Contributions Plan. The facts otherwise relevant are the same now as they were at the time of the grant of development consent, and accordingly my merit determination at [200] is the same in any event, whatever be the scope of the enquiry.
Insofar as the OS Contributions Plan is concerned, paragraphs [135] to [170] above apply equally to the OS Contributions Plan. There is a difference however when one considers the OS Contributions Plan on the assumption that the Council was obliged to consider the "offset" provisions when determining the contributions required by the contributions condition.
The Applicant says that the Council should have exercised the power in clause 4.7 and/or clause 5.3 of the OS Contributions Plan and its failure to do so renders the contribution condition unreasonable.
The two clauses are set out in full at [36] and [39] above. Relevantly clause 4.7 provides that Council may, after considering a written application, reduce the section 94 contribution otherwise calculated in accordance with the provisions of the contributions plan. That the clause applies prior to the imposition of a contributions condition is made plain by providing that "Such request will be considered as part of the assessment of the application.". That is, a proponent may request that the contributions be reduced from the sum which would be imposed if the contribution is calculated in accordance with the contributions plan. This provision is a recognition that the plan may impose a contribution condition which is unreasonable in the circumstances notwithstanding its calculation in accordance with the relevant contributions plan.
The terms of the clause do not suggest it is a provision which would apply to a modification application, but that does not constrain the Court's assessment in accordance with s 7.13(3) of the EP&A Act. The variation discretion appears on its face to be unfettered, but it must be read in context.
Clause 5.3 of the OS Contributions Plan in its heading asks the question: "Can the contribution be settled by dedicating land or undertake (sic) works?". The clause deals with the satisfaction of a contribution condition by the provision of a material public benefit. The fact that there is a specific provision dealing with that subject matter, means in my opinion that the more general provision of clause 4.7 is subject to the constraint in clause 5.3. That is to say, if the operation of clause 5.3 the OS Contributions Plan would not permit a reduction in contributions, then the general power to vary in clause 4.7 could not be used to permit such a reduction. That is how the OS Contributions Plan works in my opinion.
Clause 5.3 of the OS Contributions Plan is similar to clause 2.16 of the Roads Contributions Plan, except in one significant respect. Clause 5.3.3 of the OS Contributions Plan provides that: "If an offset is granted it will be because the applicant has agreed to provide land and/or works that are contained in this plan's work schedule (Appendix A). Offsets will not be granted in exchange for developers providing material public benefits unrelated to the Council's section 94 program."
The open space works required pursuant to conditions of the Consent are not contained in the OS Contributions Plan work schedule. That is, it is an express term of the OS Contributions Plan that the offset sought by the Applicant for the material public benefits will not be allowed. The Applicant nevertheless says that the Council should have granted an offset when the contribution condition was imposed, its failure to do so rendering the condition unreasonable. Alternatively, the Applicant would say that the Council should have varied the contribution at the time of the modification application, treating the modification application as an application under s 7.11(5) of the EP&A Act to take into account the provision of a material public benefit.
The proper construction of the provisions of the OS Contributions Plan means that the Council did not act unreasonably in declining the reduction in contributions. But it remains for the Court to determine in exercising the power in s 7.13(3) of the EP&A Act whether the contributions condition is unreasonable, the Court not being bound by the provisions of the OS Contributions Plan.
In my opinion it is inappropriate of the Court to ignore a provision such as clause 5.3.3 of the OS Contributions Plan in determining the reasonableness of a condition. It is one thing for the Court, based on the evidence before it, to make a different determination from a council on matters where there are criteria for assessment. It is quite another to make a finding directly contrary to a policy decision in a contributions plan.
A contributions plan is a document adopted by the Council after public consultation and involves a significant number of policy decisions. Those decisions encompass prioritisation of works, where works are to be carried out, the nature of the works, the needs and demands of its community. The Council will balance a whole host of matters to first draft and then adopt a contributions plan.
Here the Council has made the policy decision that the works in the schedule to the OS Contributions Plan have primacy over other works - the contributions required under the plan are not to be reduced by permitting other works to be carried in lieu of the works detailed in the plan. That is a policy decision with which the Court should not interfere in exercising the power in s 7.11(3) EP&A Act. In so doing I am not considering myself bound by the OS Contributions Plan, but rather recognising that I would be making a policy decision to determine that the contributions condition is unreasonable because the contributions were not reduced by the value of the material public benefits consequent upon the carrying out of the work the subject of the particular conditions.
For those reasons, on the assumption that consideration of the terms of the OS Contributions Plan is relevant, I do not find that the contributions condition is unreasonable on the basis that upon consideration of clauses 4.7 and 5.3 of the OS Contributions Plan the contributions should have be or should have been reduced to take account of the provision of a material public benefit.
For the foregoing reasons I do not find that the contributions condition is unreasonable. It is unnecessary to deal any further with the facts or make any merit determination about the components of the works in respect of which the Applicant sought a "credit".

The Contribution Cap

There is a discrete issue concerning the application of the Cap - the Ministerial Direction which limits the contribution payable to $20,000 per lot even if the proper application of the relevant contributions plan produces a contribution in excess of $20,000.
It is common ground that because of the provision within the proposed development of local parks, a contribution for local parks was not required. In fact, the Council did not impose a contribution for local parks. The relevant reduction or "credit" is $254 per lot.
The Council says that the proper approach is to calculate the contributions in accordance with the OS Contributions Plan without any contribution for local parks. After that calculation the contribution is in excess of $20,000 and therefore the contribution is still $20,000.
The Applicant argues that a "credit" should be allowed after the Contribution Cap of $20,000 is imposed, because it says, it otherwise would get no reduction in fact for the allowance.
I agree with the Council's submission. There is no contribution required for local parks because the development does not require the provision of or increase the demand for local parks as required by s 7.11(1) of the EP&A Act. The proper consideration of the development and the OS Contributions Plan means that there is simply no contribution warranted for local parks. It is not a "credit" for local parks after a contribution is calculated, but rather the contribution for local parks is never imposed.
The contributions condition is not unreasonable because of the failure to reduce the contribution capped at $20,000 per lot by the sum of $254 per lot as a "credit" for the contribution for local parks which would otherwise have been required. It is properly not considered in the calculation of the contribution and as after calculation the contribution exceeds $20,000 per lot it shall remain at $20,000 per lot.

Conclusion

The Applicant has not established that the imposition of the contributions condition is or was unreasonable. It follows that the modification application must be refused.
I should note that in paragraphs [74] and [85] of the Applicant's Outline of Closing Submissions the Applicant makes an alternative submission that it was unreasonable to levy a monetary contribution for Regional Level Facilities and District Park respectively because there was no demand generated by the development for those facilities. That is not a claim made by the Applicant in its Statement of Facts and Contentions in Reply (extracted at [76] above). Nor were there submissions made beyond the bare statements of an alternative claim by the Applicant. As this potential claim is outside of the scope of the case as "pleaded" by the Applicant I have not considered the claim. No part of this judgment should be read as determining that claim should the Applicant consider it appropriate to make any further modification application.
I make the following orders: 1. The appeal is dismissed. 2. Modification Application 1 of Development consent number DA 2017/244 proposing the modification of Condition 5.2 by reducing the contributions to a total of $9,521.53 per lot, a total of $2,180, 430.37 (plus adjustments for CPI to date of payment) is determined by refusal. 3. The exhibits other than exhibits 1, A and B shall be returned.

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. Decision last updated: 08 January 2021

(2013) 195 LGERA 229

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Cases Cited (25)

Cited By (5)