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[2013] NSWLEC 1153
Land and Environment Court (NSW)
2013-08-15
Mr P, Mr J
Original judgment source is linked above.
Introduction 127The contributions proposed by Shellharbour City Council can be put into three distinct categories;
The current status of contributions plans 128According to Mr Hoynes, Shellharbour City Council's current s94 Contributions Plan 2005 is the 6th review of the original s94 plan, adopted by Council on 21 June 1993. The original plan had a timeframe of 20 years. The fifth review of the s94 plan (adopted December 2000) extended the timeframe of the plan to 2018. The current plan levies for catchments that include Benefit Areas, Precincts, City East/City West and City Wide. The current plan does not make provision for development within the Calderwood valley. 129The area of the Calderwood project is within Precinct 8: Rural West precinct, for the current plan. The current plan envisages no significant level of development within this precinct during the life of the plan. 130Mr Hoynes states that Shellharbour City Council is currently preparing a revised s94 Contribution Plan, which will address the Calderwood development and he referred to the proposed revised plan as the 'Draft Infrastructure Contributions Plan 2013'.(the proposed revised s94 plan). He says the proposed revised s94 plan will update facility designs and cost estimates, as well as review implementation works schedules. According to Mr Hoynes, the decision to conduct a review of the s94 Contribution Plan 2005 was independent of the Calderwood Urban Development Project concept approval. Mr Hoynes said that it was not envisaged that Shellharbour City Council would adopt the proposed revised s94 plan before July 2013. 131The proposed revised s94 plan, according to Mr Hoynes, has a timeframe up to 2028 and seeks to levy the projected 842 cumulative dwellings in Calderwood anticipated by 2028, based on the Informed Decisions Shellharbour Population and Dwelling Projections 2006 - 2031 (i.d. forecasts) (Exhibit 25, tab 10). 132Shellharbour City Council's current s94 Contributions Plan 2005 provides for the following City Wide contributions per dwelling, indexed to 2012: Open Space Facilities $648.84 Community Facilities $1,585.11 133The proposed revision of the s94 plan (as postulated from the state of the preliminary work done by Mr Hoynes) would provide for the following City Wide contributions per dwelling in the Calderwood project area: Open Space Facilities $730.00 Community Facilities $4,615.00 134Mr Hoynes' evidence is that the material he has prepared or assembled for the proposed revised s94 plan is a 'draft', despite having been neither adopted by Council, nor exhibited. Pursuant to s28 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), a draft contribution plan must be publicly exhibited. Having considered any submissions made about the draft plan, Council may approve the plan, amend the plan or decide not to proceed with the plan and must give public notice of its decision, pursuant to s31 of the EPA Regulation. 135In our view, the so-called 'Draft Infrastructure Contributions Plan 2013' does not constitute a 'draft' plan. It merely currently consists of a number of preliminary studies intended to contribute to a proposed review of the existing plan. The work already undertaken by Mr Hoynes for this review is incomplete and Shellharbour City Council has not adopted any draft s94 contribution plan based on that work. The information referred to by Mr Hoynes as the 'revised s94 plan' has not yet been subjected to public exhibition and there has been no consultation with the owners of affected land (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at par 91). 136We therefore consider that we should give the information supplied by Mr Hoynes as purporting to constitute a 'Draft Infrastructure Contributions Plan 2013' no weight in our deliberations.
Using the 6th revision of the current s 94 plan 137Pursuant to s 94B(2)(b) of the EPA Act, as we are not a council, we can impose requirements for contributions that are not in accordance with a contributions plan. However, if we do so, we are required to have regard to the current s94 contributions plan. Our power to do so arises from s94B(2)(b) of the EPA Act, which reads: 94B Section 94 or 94A conditions subject to contributions plan (1) A consent authority may impose a condition under section 94 or 94A 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 94 or 94A 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. 138The current s 94 plan applies to the whole or any part of the area in which the development is to be carried out in the sense that the City-wide facilities" identified in the current s 94 plan and pressed by the council in these proceedings are said to benefit all present and future residents of Shellharbour City
Tripoli Way Bypass (TMAP items 14, 15, 16 and 30) 139The Tripoli Way Bypass (variously referred to as Tripoli Way, Albion Park Bypass, the Expressway and Illawarra Highway Bypass) (the bypass road) is a proposed road to be positioned to the north and parallel to Tongarra Road (Exhibit 26), connecting to Terry St/ Illawarra Highway at the eastern end, for the purpose of alleviating traffic along the Tongarra Road shopping strip. A land corridor 30.5m wide has been set aside by Shellharbour City Council for portions of the bypass road as a local road reservation within two elements of the Albion Park urban area. 140Mr Hoynes says that the area to the south of the road reservation is low density residential and the area to the north is rural residential. He says that it would be prudent to continue with a 30.5m road reservation as the bypass road will connect to the F6 in the future and the 30.5m corridor will provide flexibility for the future. 141We do not dispute Mr Hoynes' view that the 30.5m road reservation provides for future flexibility. However the question before us is not whether the 30.5m road reservation is a good idea, but whether the proposal will, or is likely to require the provision of or increase the demand for public amenities within the area, pursuant to s 94(1) EPA Act. 142Plans have existed for a considerable period of time to construct a bypass along the northern outskirts of Albion Park with it to have an anticipated connection to a proposed extension of the existing freeway which extension would run to the south from the current termination at Young. At the present time, it is agreed, there is an already unsatisfactory level of service at the major intersection in the centre of Albion Park. Indeed, the inadequacy of this intersection has already lead to the banning of right hand turns for traffic going north along Tongarra Road into the centre of Albion Park so that such traffic now no longer has direct access to the Illawarra Highway to the north and, thus, to the southern end of the freeway. 143There is no dispute between the parties about the need to construct the Albion Park bypass nor is there any significant dispute between the parties about the appropriateness of development at Calderwood making a significant financial contribution to the cost of constructing this bypass. Lend Lease and Shellharbour City Council differ in several significant respects about the specification necessary for the construction of the bypass. This disagreement is not only about the nature of the road itself but also about the width of the road reservation corridor and, thus, the amount of currently private land that would need to be acquired to establish the corridor within which the road would be constructed. Lend Lease's position on these issues is derived from the TMAP whilst that of the Council is derived from work undertaken by an external consultancy, in part, and by work undertaken by its own engineering staff. 144The parties disagree on a cost estimate for the bypass road. Mr Moy estimates the total cost at $13,230,000 and Mr Kritzler estimates the total cost at $17,526,000. These estimates result in a per dwelling contribution to the bypass of $1,202, according to Lend Lease and $5,207, according to Shellharbour City Council (Exhibit 4, attachment A). The parties dispute the appropriate methodology for apportioning the cost of the bypass to the proposal. The significant difference in these amounts arises from the difference in the broad approach to be taken to apportionment - dealt with earlier, when we accepted Lend Leases project wide approach. 145The difference between Mr Moy and Mr Kritzler regarding the overall cost estimate of the bypass derives from the design of the road and the professional fees/contingencies that the parties have respectively adopted. 146Lend Lease submits that Lend Lease should contribute to a two-lane bypass road, on the basis that Calderwood does not generate any need for on-street parking along the bypass road. Mr Moy says that adequate space can be provided for vehicle breakdowns with two 4m lanes (8m total width) to allow two lines of traffic to slowly pass a broken down vehicle (Exhibit D, par 11). He says that the creation of space for parking is not consistent with the function of a bypass catering for through traffic movements away from Albion Park. 147Ms Brown says that it is reasonable for the third lane to be provided for in that portion of the bypass road with residential frontages (Exhibit 4 at 7). 148Shellharbour City Council submits that the proponent should contribute to a four-lane bypass road, comprising two travel lanes and an adjacent shoulder/parking/break down lane. 149The bypass will need to be elevated at least 3m above ground level in the flood plane, according to Mr Hoynes, the exact level of the bypass above ground level is currently unknown, as the F6 has not yet been designed by the NSW Roads and Maritime Services (RMS) and its levels are unknown. 150Mr Moy and Mr Kritzler agree that the difference in cost between an 8m wide two-lane road and a four-lane road is in the order of 40% on a simple pro-rata basis (Exhibit 23, par 29). Mr Kritzler notes that a simple pro-rata basis does not include site specific items detailed in his evidence (Exhibit 23, par 8). 151Mr Moy says that the difference in the cost estimate for the bypass road between himself and Mr Kritzler is the provision for additional parking lanes combined with a significant percentages allowed for contingencies, in the order of 43% (Exhibit D, par 10). Mr Moy says that a reasonable contingency would be in the order of 10-15% and that IPART has commented that 15% is an absolute maximum contingency for cost estimates of this nature (Exhibit D, par 11b). 152Mr Kritzler says he has allowed a contingency of 20% in his estimate, for additional construction costs that may eventuate due to unforeseen construction conditions and circumstances. He says that 20% is a reasonable and conservative contingency for a concept estimate based on one drawing. Mr Kritzler says that Mr Moy's 23% so described 'contingency' (Exhibit D) is not in fact a contingency, because it is an amount set aside for preliminaries, margin, survey, LSL, professional fees, environmental controls and project management, which are actual costs that will be incurred by the council and the contractor (Exhibit 23, pars 13-17). 153Lend Lease submits that the appropriate method of apportionment of cost of the bypass is that for which the TMAP makes provision. Mr Hoynes says that the cost of the bypass should be apportioned on the basis of population projections/dwelling production assumptions prepared by Informed Decisions Forecast on behalf of Shellharbour City Council in preparation for the draft s94 Plan, which indicate that Calderwood will contribute 842 of the projected additional 3,635 dwellings up to 2028, which accounts for 25% of the LGA's population growth to 2028 (Exhibit 22 at 17). Shellharbour City Council has assumed a 2028 construction date for the bypass road. 154In our view and based on the evidence before us, the proposal will contribute to a requirement for the bypass road and an 8m wide, two-lane bypass road is adequate to fulfil the increased demand generated by the proposal. We accept Ms Brown's evidence that it is reasonable to provide a third lane in the portion of the bypass road with residential frontages on the southern side of the road. 155The road reserve, to be contributed towards by the proposal, will need to be wide enough to accommodate batters, which are required to raise the level of the bypass in the flood plane at the western end. 156We accept Mr Moy's evidence that a 15% contingency is appropriate for additional construction costs that may eventuate due to unforeseen construction conditions and circumstances. 157We accept the TMAP technical apportionment for the bypass, for reasons set out earlier in the judgment at [32].
Section 11 of Marshall Mount Road 158Neither Lend Lease (through the TMAP process) nor Shellharbour City Council originally assessed an element of Marshall Mount Road, toward its southern end (and known as Section 11) as requiring an upgrade. As a consequence, the TMAP did not make any assessment of it and its emergence as an issue relating to upgrade contributions came comparatively late in the peace. 159Section 11 of Marshall Mount Road lies along the north-western boundary of portions of Stages 6 and 7 of the Calderwood project. The land on the western side of the road is presently (and is proposed to remain) rural in character. Section 11 is approximately 1 km in length. 160At the present time, this section of road is a pleasant rural road with grassed verges and no made footpaths. We travelled along this section of Marshall Mount Road during the course of our site inspection and it appeared entirely adequate for its present largely rural character. 161The relevant council, Shellharbour City Council, contends that this section of Marshall Mount Road should be upgraded to a dual carriageway in each direction with kerb and gutter treatment and made footpaths. 162The council proposes that development at the site should meet the total cost of this upgrade as the necessity arises solely because of the Calderwood project. 163On the other hand, as we understood Lend Lease's position, no contribution was warranted for any upgrade of this section of road as there was not sufficient certainty that any increase in traffic along Section 11 that might be generated by Calderwood would trigger the need for such an upgrade. 164The concept plan for Calderwood identifies this portion of Marshall Mount Road as a likely future bus route and, we infer from the range of documents in evidence, particularly the concept plan and the TMAP, at any such bus route, if adopted, would be likely to incorporate a school bus route in its operations. We have reached this conclusion from the nature of the elements of the planned internal roadwork shown in the documents together with the indicative location for the educational facilities proposed to be located within Calderwood. 165We consider that there is a sufficient basis for making provision for some facilities for stops for school buses (although identifying the locations for these facilities would need to await greater clarity in the final design of the relevant stages). Given the length of road that would be traversed by a school bus, we consider it desirable to make provision for four layover style bus stops and shelters (two for each direction of travel). 166However, we are not persuaded that any major upgrade of the road itself can be justified at this time. The need for such an upgrade might emerge with greater clarity and imperative as Calderwood progresses. If this were to occur, it is precisely the type of minor adjustment that might be dealt with in some future iteration of the relevant s 94 contributions plan (in whatever fashion such funding plans emerge in the new planning system). 167As we have no basis upon which we could assess the costs to be ascribed to such layover style bus stops and shelters, we leave that to discussions between the parties to settle (with recourse to us if agreement is not able to be reached).
Introduction 168The current s 94 plan describes City-wide facilities in the following terms: 2.3.1 City-wide facilities This plan recognises that there are a number of facilities that are intended to serve the City as a whole. Such facilities are generally unique to the City either in terms of their function or standard. 169Some of these facilities are for open space and/or sporting facility projects said to serve the entire local government area of Shellharbour City whilst others are for major civic venues of varying types. Lend Lease resists being required to contribute to any of these facilities. With the exception of the contribution sought by the council for the Shellharbour City Performance Theatre, the Minister supports the opposition by Lend Lease to these proposed facilities. The facilities encompassed in the council's list of those requiring contributions are set out in the sections that follow. 170Shellharbour City Council also seeks a contribution to the administration of the contributions plan.
State infrastructure contributions and works in kind 171Lend Lease submits that the proponent is committed to a total State infrastructure contribution of $13,722.00 per dwelling, flowing from the VPA and that the local infrastructure contribution, as works in kind within the Calderwood development, amount to an equivalent contribution of $20,840.96 per dwelling. (Annexure A, Applicant's closing submissions). 172This, it was submitted, as we understood it, constituted a reasonable total contribution and additional contributions were, therefore, inappropriate. We disagree and our reasons for accepting or rejecting each specific proposed contribution sets out the basis for the specific determination. 173We do not consider that, although Lend Lease is to provide facilities of various types in Calderwood, these meet, in any exhaustive fashion, the future needs of the new community. City-wide open space and/or sporting facilities 174Shellharbour City Council seeks a contribution for the following City-wide open space facilities:
Shellharbour City Stadium (recoupment) 185The s94 Plan says that Shellharbour City Stadium 'is required to cater for the increasing demand for indoor sporting facilities in the City including basketball, netball, futsal and volleyball' (Exhibit 25, tab 1, Contributions Plan Part 2). Ms Brown considers that the open space and community facilities to be provided at Calderwood will meet the reasonable local needs of the future residents. She does not consider that any open space or sporting facilities contribution is necessary for this reason. Ms Bull mentions the City Stadium specifically (Exhibit C, par 131 - 133) and rejects any contribution toward it because of its 'sub-regional nexus' and because it is not required 'to meet the reasonable demand arising from the future population of the Calderwood Project for access to city-wide open space and recreation facilities'. She considers that the facilities being provided by Lend Lease in Calderwood would render any additional monetary contribution unreasonable. 186As earlier noted, Mr Hoynes advocated a contribution based on what he described as the Revised Contributions Plan, a concept we have rejected. However, his contingent position was that if we did not adopt that proposal, the rates from the current s94 Plan should be applied. 187As the facilities are ones of a type that are not to be provided within Calderwood, but are likely to be utilised, at least to some extent, by future Calderwood residents, we consider a contribution is appropriate. This contribution should be at the rate provided for in the current s94 Plan.
City-wide community facilities 188Shellharbour City Council seeks a contribution for the following City-wide community facilities:
s94 management contribution 199Ms Bull provided a number of examples (Exhibit C, par 168) of administration percentages or monetary contributions. Where a percentage has been applied, it has not been greater than 1%. Ms Bull also said (par 174), 'if a plan administration component were to be applied, in my view, it ought not exceed 0.5 - 1% of the otherwise determined monetary contribution.' We accept the position of Lend Lease and 1st Respondent that a1% management contribution is appropriate. 200Ms Brown said (Exhibit 3, par 64), 'the administration levy proposed under Shellharbour Council's draft s94 plan appears to comprise 14% of the total contribution sought to be levied. This appears to be an unreasonable quantum to be imposed.' 201Ms Brown's sentiment is undoubtedly self-evidently correct. It is inconceivable to imagine an administration impost of that dimension. On the other hand, we do not consider it unreasonable to make some provision for the administration of the plan. The range proposed by Ms Bull seems sensible and, given the range of matters to be covered and the limited number of matters for which a contribution is to be required of Lend Lease, an administration component at the top of her range is not unreasonable. 202We therefore consider that an administration charge of 1% to be applied to the Shellharbour s94 contributions derived from this judgment should be added to those contributions.
"Unjust enrichment" 203In Lend Lease's submissions, there was a suspicion, a merest suspicion, of the suggestion that Shellharbour Council would, in some fashion, be obtaining an inappropriate advantage for its community if it were permitted to levy s 94 contributions for community facilities. We understood this to be the suggestion that, because those facilities had been costed and provided for in the current s 94 contributions plan across levels of development within the local government area that did not include the site, receiving contributions as a consequence of development of the site would constitute some form of windfall bonus. 204We do not accept this proposition. Contributions for community infrastructure are levied either because of demand for new community facilities arising from development or because the new residents will benefit from community facilities already provided in anticipation of population changes. 205Over time, a council collecting such contributions is required to manage those funds for the purposes of meeting the costs of such facilities. If there were to be money left over, those funds are required to be expended on community facilities and, in any event, costings projections over the life of a s 94 plan operating for 10 years or more are necessarily imprecise. In addition, although funds for such facilities are collected by being levied for the various facilities described in the plan, provided those facilities are constructed over the life of the plan, the funds are able to be utilised in a responsible sequencing fashion by the collecting council - sequencing that enables the bringing forward or the pushing back of the particular items depending on the level of funding available. 206We see nothing incongruous or inappropriate in levying such contributions on the site.
Conclusion 207Although the matters in contention in a pleaded sense were confined to infrastructure upgrade standards and the extent to which contributions should be required to be paid to either Wollongong City or Shellharbour City Councils for those purposes, the proceedings nonetheless related to considering whether approval should be granted to Stage 1 of development of Calderwood. This required us to consider not only the limited range of matters related to infrastructure that were pleaded, formally, in the proceedings but also to consider the broader public objections raised in the proceedings. 208In the early portion of this judgement, we set out our reasons for concluding that there was no basis to reject all or any part of the present Stage 1 application for Calderwood. 209Having reached that broad conclusion, we have then turned to consider the specific construction standard and financial contribution issues raised by each of the councils. 210The Court is exercising the Minister's functions, on appeal and the constraints on the imposition of local infrastructure contributions by reference to formally adopted contributions plans, does not exist, pursuant to s 94B(2)(a) of the EPA Act. The discretion afforded by this section is constrained by the requirement to have regard to any contributions plan that applies to the whole or any part of the area in which the development is to carried out, pursuant to s 94B(2)(b). 211In addition, even if we were to regard the existing contributions plans as being significantly persuasive (although not binding), it is clear that the functions of the Court are significantly less constrained with respect to the appropriateness or otherwise of identified contribution items and the level of contribution for such item in a council contributions plan (see Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; [2003] 58 NSWLR 159; [2003] 129 LGERA 165). 212We have earlier set out, with respect to each of the areas of contest about an item of local infrastructure, what we consider to be the appropriate construction standard to which a contribution should attach (when that construction standard was in contest between Lend Lease and the relevant council) and, where we were able to do so, the rate that should be applied for any infrastructure contribution we have determined is appropriate. We have not, however, set out a derived finalised contribution, for each council, to be applied to all of the allotments in Stage 1 of the development of Calderwood. We prefer to leave settlement of the appropriate amounts for each of Wollongong City Council and Shellharbour City Council to be settled by the parties with the option of recourse to us if the parties are unable to agree on the relevant amount to be the derived for each council. 213As a consequence, although the orders of the Court, when finalised, will uphold the appeal and grant development consent to Stage 1 of Calderwood, the appropriate course to follow to permit this to occur is to give directions embodying a timetable for the parties to settle and file (including filing electronically) agreed, consolidated conditions of development consent to permit those orders to be made. We therefore give the following directions: (1)The parties are to file settled, consolidated conditions of development consent for Stage 1 of development of Calderwood reflecting the terms of this decision by 4:30 pm on Wednesday 28 August 2013; (2)The settled, consolidated conditions of consent are also to be lodged electronically by email, with the Court in Word format; (3)The matter is set down for mention before Senior Commissioner Moore at 4.15 pm on Thursday 29 August 2013; (4)If (1) and (2) are complied with, we will make orders in Chambers and the mention will be vacated; and (5)The exhibits, other than Exhibits 9, 20 and V, are returned. Tim Moore Senior Commissioner Susan O'Neill Commissioner
Amendments 16 August 2013 - Junior Counsel's appearance added to Judgment. Amended paragraphs: Judgment Coversheet 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: 16 August 2013
Lend Lease Communities (Australia) Limited
Minister for Planning and Infrastructure, Shellharbour City Council and Wollongong City Council
The two specific impact issues 77We were sufficiently concerned about the issues raised by the dairy farmer, that is whether the future downstream flow peaks would not exceed those that are currently experienced in the Macquarie Rivulet for his farmland, that we requested that the flooding experts address this issue. They did so. We were advised that, following joint conferencing on this issue, they had proposed an amendment to the conditions of consent that they agreed would address, specifically, this concern in an appropriate fashion to protect this farmland. Lend Lease agreed to accept this modification to the conditions. 78As a consequence, we are satisfied that this issue does not now raise any impediment to the approval of Stage 1 of Calderwood. 79Further, to the extent that there may have been other flooding issues of a more general nature that were encompassed in the broader community debate about the appropriates of development of the site, the flooding experts have agreed on what are the appropriate conditions to address water flow and flooding issues in the Macquarie Rivulet. As the final point on this issue, there is no proper evidentiary basis upon which we could question those outcomes or interfere with the condition regime that they propose. 80Finally, concerning the matter raised by Mr Fredericks about the appropriateness of permitting the building up of land to the south of the Macquarie Rivulet to remove flood risk and this being contrary to the Macquarie Rivulet Flood Strategy, we are satisfied that this is not a basis upon which we could question the appropriateness of this element of the Stage 1 development proposal. 81There are a number of reasons for this, reasons that we set out in summary form only. 82First, the status of the document is not such that, in the context of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, significant weight would ordinarily be attributed to it. We make this observation in the context that the flooding experts have agreed to a conditions regime that deals appropriately, as we understand it, with all issues that arise with respect to the hydraulic operation of the Macquarie Rivulet not only as they would impact on this proposed Stage 1 development but also on others potentially affected by downstream flows. The flooding experts, in this context, do not raise any concerns about the technical appropriateness of development of this element of the Stage 1 proposal. 83Second, the Minister does not, in these proceedings, press any concerns about this aspect of Stage 1. 84Finally, although we have evidence that both councils continue to oppose development of the site (and, indeed, have sought reversion of the zoning change to return the site's land to a rural zoning), Shellharbour City Council, within whose local government area Stage 1 is located, does not press any planning concerns about this specific aspect of the Stage 1 proposal.