Marrangaroo East Pty Ltd v Blayney Shire Council

The legislation 9The power to approve a development of the type presently under consideration was conferred on the Council by s 80 of the Act. That section provided: A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) ....... (2) .......... 10If consent was granted, conditions could be imposed. The source of the general power to impose conditions was s 80A which provided: (1) A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or (b) ....... (c) ....... (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)-(9) of this section or section 94, 94A, 94EF or 94F. 11Certain conditions could be imposed involving the payment of money or the contribution of land. This was addressed by s 94 which provided: (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) ...... 12The payment of a monetary contribution could only be required if it was governed by a contributions plan. This is apparent from s 94B which provided: (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) ..... (3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction. (4) A condition under section 94A 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. 13The Act made provision for how a contributions plan might be created. This was addressed by s 94EA which provided: (1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4). (2) ....... (3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans. (4) A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan. 14The regulations referred to in s 94EA were embodied in the Environmental Planning and Assessment Regulation 2000 ("the Regulation"). Clause 27 of the Regulation dealt with what a contributions plan must contain. It provided: (1) A contributions plan must include particulars of the following: (a) the purpose of the plan, (b) the land to which the plan applies, (c) the relationship between the expected types of development in the area to which the plan applies and the demand for additional public amenities and services to meet that development, (d) the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services, (e) the section 94 contribution rates for different types of development, as specified in a schedule to the plan, (f) if the plan authorises the imposition of a section 94A condition: (i) the percentage of the section 94A levy and, if the percentage differs for different types of development, the percentage of the levy for those different types of development, as specified in a schedule to the plan, and (ii) the manner (if any) in which the proposed cost of carrying out the development, after being determined by the consent authority, is to be adjusted to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date of that determination and the date the levy is required to be paid, (g) the council's policy concerning the timing of the payment of monetary section 94 contributions, section 94A levies and the imposition of section 94 conditions or section 94A conditions that allow deferred or periodic payment, (h) a map showing the specific public amenities and services proposed to be provided by the council, supported by a works schedule that contains an estimate of their cost and staging (whether by reference to dates or thresholds), (i) if the plan authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes, the priorities for the expenditure of the contributions or levies, particularised by reference to the works schedule. (2) In determining the section 94 contribution rates or section 94A levy percentages for different types of development, the council must take into consideration the conditions that may be imposed under section 80A (6) (b) of the Act or section 97 (1) (b) of the Local Government Act 1993. (3) A contributions plan must not contain a provision that authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid.

The consent 15When granting consent to the applicant's application, the Council imposed condition 27 which concerned contributions. It was common ground that this condition applied to several contributions plans though the focus of the challenge made by the applicant was to the operation of this condition as it applied to a roads contributions plan. Condition 27 read: 27: That the applicant pays Section 94 Contributions as required by Council's Section 94 Plans. The amount applicable will be dependant upon the date on which payment is made and will be as per Council's adopted fees and charges for the financial year in which payment is made. Section 94 Contributions will not be applied to the first 25 allotments for which a Subdivision Certificate is issued. Section 94 Contributions will not apply to proposed allotment 25 - Open Space. 16The Council also imposed condition 45 which related to lot 25, described in a variety of ways but essentially land proposed as open space. This condition read: 45: Proposed lot 25 shall be created at the time of release of the first subdivision certificate for the proposed subdivision. Upon its creation this lot is to be dedicated to Council. All works required to be completed by the developer upon this lot are to be completed prior to its dedication to Council.

The roads contributions plan 17The following are what I perceive to be the relevant parts of the roads contributions plan which was current (coming into effect on 31 March 2011) When the conditions were imposed. The notations "BSC 1/2" and the like was a form of pagination at the top of all but the first 2 pages of a 17 page document: "THE PLAN: INTRODUCTION: Development within the Shire places additional pressures on Council to provide public services and amenities, invariably at the expense of established priorities. Under the Environmental Planning and Assessment Act 1979 (EP&A ACT), Section 94 is the sole source of power for Council to levy developer contributions for these public services and amenities. Council can impose a condition requiring the dedication of land free of cost or the payment of a monetary contribution. Council can recoup costs for services and amenities which have been provided to facilitate development or in anticipation of development. Council is also permitted to levy contributions towards recurrent expenditure on roads where there is abnormal impact from mining and extractive industry traffic. The Court has established the following principles for testing the validity of a consent condition requiring a Section 94 contribution: The contribution must relate to a planning purpose The contribution must fairly and reasonably relate to the subject dev The contribution must be such as a reasonable planning authority, duly appreciating its statutory duties, could have properly imposed. It is a requirement of the Act that Council prepare Section 94 Plans for the various categories of services and amenities for which a levy is made. The Plan identifies the project, method of funding, recovery of expenditure and timing of works. ... BSC 1/2 PART C ASSESSMENT OF CONTRIBUTIONS NEXUS As development proceeds within the Shire, additional road traffic is generated by that development, resulting in road improvements being required to satisfactorily meet the road safety and amenity standards of the community. The Plan reflects the increase impact of additional traffic relative to the improvements required and the means of funding those improvements. ... FUNDING Each development will contribute towards road improvement within the locality on the basis of the demand generated by the development. Once improved, Council undertakes to maintain the section of road to the nominated standard. METHODS OF FUNDING Rural Subdivisions and Dwellings Each development shall contribute towards the improvement of the road condition in the locality to the nominated standard. BSC1/3 Schedule 1 details Council's Road System which it currently maintains. New road dedicated to the Public and developed to the nominated standard will be maintained by Council to that standard, within the available resources of Council. ... METHODOLOGY Council has established road standards related to typical rural activities and the level of service demanded by those activities for various classes of road within the Shire (See Schedule 3). The level of serviceability of a road is determined by the traffic volume on the road (AADT - Average Annual Daily Total expressed in light vehicle movements). Costs have therefore been equated to 1 AADT. Standards The demand for road improvements is directly related to the occupancy of tenements. In order to calculate contributions, the occupancy rates of tenements have been determined as: a. Bedsitter or Bachelor Flat 1 person b. Single Bedroom Unit 1.1 person c. Two Bedroom Unit 2.2 persons d. Three Bedroom Unit 3.3 persons e. Dwelling House 4 persons f. Subdivision Lot 4 persons g. Industrial/Commercial Development 4 persons BSC 1/4 Road standards set by Council are: Rural Gravel RG1 AADT less than 16 vehicles per day - right of ways only Minor Gravel Road Standard to 60kmh RG2 AADT 100 vehicles per day Bitumen Road Standard to 80 kmh These standards have been applied to Council's Pavement Management Systems to determine average costs to improve each category to the next highest level. CONTRIBUTIONS Contribution Formula Accepting that only infrequent opportunities exist for the augmentation of existing facilities, contributions will be sought for the embellishment of the existing facilities, as detailed in Schedule 1. Council recognises the importance of growth within the Shire and will discount to 2 AADT per residential development or subdivision lot created for all development types, with the exclusion of a Workers Dwelling or a dwelling which creates a workers dwelling from an existing dwelling, for which no contribution will be required. These would normally be calculated at 8 AADT per residential development or subdivision lot created. BSC 1/5 Formulae for the calculation of contributions related to AADT generated as a percentage of the Pavement Management System category range (1-10). Through traffic on Road Category RB1 (Rural Bitumen 1) is recognised by the application of a discount factor. Contributions will be sought for the facilities detailed in Schedule 1. Contribution Formula - Domestic Rural Gravel Roads RG2 100 Local Roads Contribution per Development 2 AADT x $6,648 = $13,296 ... BSC 1/6 At its meeting of 8 th December 1997, it was resolved by Council that the following merit assessment be applied to development contributions:

1. that where the total estimated cost of works for the proposed development is below the threshold of $20,000, Council adopt the following staging of Section 94 contributions fees: i. Total estimated building works less than $10,000 - Nil payment; ii Total estimated building works between $10,000 and $20,000 - payment of 50% of full contributions applicable for building works over $20,000.
2. That the estimated building cost of any additional works carried out on premises within a two year period, will be considered with previous building works within that time frame, and the combined sum over $10,000 will be subject to the appropriate Section 94 contribution fee.
3. That the application of this policy be retrospective to 1 st July 1997. The Road Contribution Formulae (1996 and amended 2002 ) is attached as Schedule 2. ... BSC 1/7 INDEXATION Road contribution levies may be indexed on the 1 st July of each year in accordance with the Australian Bureau of Statistics Consumer Price Index for the preceding 12 months to take account of the increase in construction costs. TIMING OF PAYMENT Contributions will be payable prior to the release of the plan of subdivision or the Building Approval for new dwellings. Where no development consent is required, road contributions in terms of the provisions of the Local Government Act 1993, will apply in the same manner as if Development consent was required. EXPENDITURE OF CONTRIBUTIONS Council will utilise contributions from an development levied under this Plan on improvements to the road servicing the development in the following manner: Widen and strengthen road formation and pavement Improve alignment or sight distance Improve lateral and transverse drainage Improve traffic facilities ..." 18Schedule 1 of the plan was a list of roads in three columns. The left-hand column was a road identifier number, the middle column was the name of the road and the right-hand column was the present road classification using the classification system of RG1, RG2, RG3 and RB1 referred to at BSC 1/4. The schedule apparently identified all roads in the Shire. 19Schedule 2 was headed "ROAD CONTRIBUTION FORMULAE (2002)". It provided: ROAD CONTRIBUTION FORMULAE (2002) ROADS Description RG2 RG3 RB1 Average AADT 25 50 100 Road Standard Secondary Gravel Roads Standard Gravel Roads Standard Bitumen Roads Construction Width 7m 9m 12m Av. Condition to be maintained Condition 7 Condition 8 Condition 8 Unit rate/m $14 $18 $35 Assumed Lots/100m Section 2 3 6 Construction Cost (100m) $9,800 $16,200 $42,000 Construction Cost (100m) based on condition $9,800 x 0.7 $16,200 x 0.8 $42,000 x 0.8 Cost/lot - (calculated 2002) $3,430 $4,320 $5,600 Cost/lot-(calculated applying CPI 2002 to 2008) $4,072 $5,128 $6,648

20Schedule 3 contained for comparatively simple engineering diagrams showing the dimensions and constituent physical elements of 4 road types.

Issue one - the validity of the current roads contributions plan 21The applicant contended that the roads contributions plan effective 31 March 2011 was not of a character authorised by the Act. The plan does not, it was said, address the matters required to be addressed by clause 27 of the Regulation. Also, it was said, the plan was entirely unclear and the decision to make it, as I understood the argument, was so unreasonable no reasonable decision maker could have made it. Moreover, the plan made no connection between the proposed development and an increase in the demands for the use of amenities in the area, namely roads. A similar challenge was made to the roads contributions plan that preceded the current plan but it is unnecessary to address that challenge as it was conditional on the challenge to the current plan being successful. 22At base, the applicant's challenge to the roads contributions plan is to be determined by reference to the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355. The ultimate legal issue is whether the Act, properly construed, manifests an intention that the act done (in this case the making of the contributions plan under s 94EA of the Act) in breach of the provision (concerning the content of such a plan: s 94EA and clause 27 of the Regulation) should be invalid or was otherwise not authorized by the Act: Project Blue Sky Inc at [93]. 23It is fundamentally a task of statutory construction. However it is well settled that, at least in the ordinary course, it is impermissible to have regard to regulations when construing an Act: Wallaby Grip Ltd v QBE Insurance (Aust) Ltd (2010) 240 CLR 444 at [21]. But in the present case the relevant section, s 94EA, incorporates the requirements of the Regulation by conditioning the grant of power to make a contributions plan. The condition is that the preparation and approval of a contributions plan is to be "subject to and in accordance with the regulations". Having regard to recent authority in the Court of Appeal, a failure to do an act "in accordance with" a regulation as directed by statute, can render the act invalid: Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. 24Accordingly, it is necessary to determine as a first step what the Regulation required and then, as a second step, whether the road contributions plan met those requirements. A possible third step is whether a failure to meet those requirements would render the road contributions plan invalid. That is, was the road contributions plan one the Act authorised the Council to make. 25The predecessor to clause 27 was clause 26. That latter clause was considered by Pearlman J in Eastport Pty Ltd v Leichhardt Municipal Council (2001) 112 LGERA 376. At that time clause 26(1)(g) required that a contributions plan include particulars of "a work schedule of the specific public amenities and services proposed to be provided by the council, together with an estimate of their costs and staging". Her Honour concluded the clause required particulars of public amenities proposed to be provided, the works involved in an estimate of their costs. It was not essential those particulars appear in a "works schedule" (a matter of form not substance) as long as they appeared in the contributions plan read as a whole. The works could be described at a level of generality such as "light rail access works, bicycle facilities, and commercial car parking". It was not necessary to set out the precise locations of those works. Her Honour noted "in some cases, it may be possible to be precise; but in other cases, the precise location of works may be dependent upon an estimate of future demand for the specific public amenity in question". Her Honour further noted that the use of the word "proposed" suggested that these specific public amenities are foreshadowed rather than fixed or binding. 26Clause 27(1)(h) is in terms different to clause 26(1)(g). The former requires "a map showing" the specific public amenities "supported by a work schedule that contains" cost estimates and staging. It was common ground that the absence of a map in the present case in the roads contributions plan was a matter of form only. That is not to say, the requirement for a map does not inform the proper construction of paragraph (h) as a whole. Nonetheless, the general approach to the construction of clause 26 is, in my opinion, apt to apply to clause 27. 27I turn now to consider the roads contributions plan in issue in these proceedings. The plan is not a model of plain English drafting revealing with great clarity how it is intended to operate. However my task is not to evaluate the plan as a piece of prose. Rather it is to assess whether it meets the requirements of clause 27 and is a plan of the type authorized by the Act. 28I should, at this point, mention one matter of some importance to this task. Basten JA gave the leading judgment in Hoxton Park Residents Action Group Inc v Liverpool City Council . His Honour appears to have drawn a distinction (at [24]) between requirements imposed by regulation expressed with a degree of precision and requirements expressed in a way which requires elements of judgment or discretion. In my opinion where the regulation requires the satisfaction of a requirement involving judgment or discretion, it is necessary to endeavour to understand how that judgment or discretion has been expressed. If its expression can reasonably be construed in a way that satisfies the requirement, that construction should be adopted: see, by analogy, King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195 and Parry v Osborne [1955] VLR 152 at 154. 29In my view, the roads contributions plan was intended to operate this way. Under the heading "EXPENDITURE OF CONTRIBUTIONS" on BSC1/7 the plan declared that contributions would be used on improvement to the road servicing the development. I have little doubt, and I think it was common ground, that the word "road" in the singular can in appropriate circumstances be treated as the plural. Thus we know from this declaration that it is the road or roads servicing the development that will be improved in one or a combination of the four ways identified in the four dot points. This is consistent with the observation under the heading "CONTRIBUTIONS" and the subheading "Contribution Formula" on page BSC1/4 that there will be infrequent opportunities for the augmentation of existing facilities rather than the embellishment of existing facilities. I take this to be a reference to road improvement rather than the building of new roads. Also, there is no reason to treat this reference (to "roads servicing the development") as being a reference only to roads directly connecting the development. It is reasonably capable of being understood as roads in a broader or wider road network ultimately connecting to the development. That is, roads in the Shire likely to be used more often because of use by the individuals populating the development. 30This declaration makes tolerably clear that the contributions will not be used on all or any of the roads in the Shire set out in schedule 1, but rather only those roads in the schedule which are servicing the development. 31The key to understanding the amount of the contribution required in any particular case is also found under the same heading and subheading on page BSC1/4. The plan notes that the Council will discount to 2 AADT (Average Annual Daily Total expressed in light vehicle movements) per residential development or subdivision lot created for all development types. Thus each lot created in a development is to have attributed to it the discounted level of 2 AADT. In, for example, a subdivision creating 10 lots there will be a notional attribution of 20 AADTs. 32There is, I must accept, a measure of confusion in the " Contribution Formula - Domestic " table on page BSC1/5 which follows this narrative. The confusion arises because of the admixture of road types and light vehicle movements. However, on reflection, I think this formula is intended to illustrate that smaller developments with less than a notional 50 AADTs (that is with less than 25 lots) need only contribute to the cost of maintaining or improving roads at the RG2 standard (Secondary Gravel Roads to 80 km/h) while larger developments are, in 2 incremental steps, to contribute more. In relation to the present development of 95 lots (putting aside the discount given by Council for the creation by the applicant of sections of sealed road into the development) there would be a notional 190 AADTs which would warrant the maintenance or improving of roads at the RB1 standard (Bitumen Road Standard to 80 km/h). 33There is a certain logic to this approach. Large developments (with many lots, probably more occupants and almost certainly generating more road traffic) are likely to create significantly more demand on road surfaces of the roads servicing the development than smaller developments. That demand is likely to be best met by the road surface being bitumen. The same might not be so for smaller developments with fewer lots, probably fewer occupants and probably generating less road traffic. Road servicing a development of this latter type might not need to be of the same standard. 34Understood this way, the formula demands of larger developments, a larger contribution to either create or maintain a road of a higher standard. The methodology for calculating the actual amount is in schedule 2 which identifies an amount per square metre of constructing a road of an assumed width for each road type. However, I accept that there is in schedule 2, a not readily comprehensible assumption that there will be more lots per 100 metres on a Standard Bitumen Road and a lesser number (itself disaggregated) on Gravel Roads. How this assumption arises I do not know. But I am not presently concerned with the minutiae of the formulation but rather the satisfaction of the statutory criteria. 35Obviously the critical element in the plan is the amount, in aggregate, to be paid by a person or entity who has secured development approval conditional on paying a roads contribution. In relation to a development which is not an industrial or commercial development, it is tolerably clear that amount is to be determined by reference to the information under the heading " Contribution Formula -- Domestic ". 36There is, however, an ambiguity in that information. Under each of the three headings referring to road type and numbers of AADTs (it was common ground that the reference to ">100 Local Roads" should be ">100 AADT") there is the line commencing "Contribution per Development" followed by some figures and ending with a dollar amount. These lines are susceptible of the construction, when read literally, that the dollar amount is the amount to be paid in relation to the entire development. Thus, in the present case, the contribution would, in aggregate, be $13,296. But this construction effectively ignores what is said in the plan under the heading "Contribution Formula" on page BSC1/4 discussed earlier in those reasons concerning AADTs per lot. It seems to me that the dollar amount at the end of each line is the amount payable per lot. In the result, a large subdivision (such as the present) has to pay a higher amount per lot because the contributions will be directed towards the creation or maintenance of roads to a higher standard. 37In my opinion, the roads contributions plan understood this way sufficiently clearly satisfies paragraphs (c), (d) and (e) of clause 27(1). Perhaps it is a little less certain in relation to paragraph (h). 38However it must be borne in mind that the roads contributions plan appears not to have been formulated with this or indeed any particular development in mind. This was a criticism made of the plan by senior counsel for the applicant. As I understood his submission, he suggested the plan in issue in these proceedings should have been recast or reformulated once it was known there was to be this significant development in the Shire. I do not agree. There is no reason apparent to me from the Act or the Regulation, why a roads contributions plan (or any other contributions plan for that matter) cannot be formulated for the purposes of general application over a period of time. 39I recognise the difficulty in formulating a roads contributions plan which can anticipate precisely where any given development might occur and the likely impact of the particular, but then unknown, development (if approved) on the surrounding road system in the local government area. Accordingly some measure of latitude, in my opinion, should be afforded those formulating a plan in identifying the "public amenities" referred to in paragraph (h) proposed to be provided by the council and the estimation of their cost and staging. 40I accept there is, in relation to the plan presently under consideration, no necessary connection between the cost of constructing new road (the amounts referred to in schedule 2) and undertaking the work identified in the four dot points referred to earlier, particularly when the plan recognizes there would be infrequent opportunities for the augmentation of existing facilities, viz. building new roads. However the connection does not appear to me to be irrational. For example, to widen and strengthen road formation and pavement (the first dot point) may well involve the reconstruction of a road. Thus there would be some correlation between the work and the cost. Likewise improving alignment or sight distance (the second dot point) may involve constructing small sections of new road to eliminate sharp curves or steep rises. Similarly improving drainage (the third dot point) may, at least in some cases, involve re-fabricating the road surface. 41In the result I am satisfied the requirements of paragraph (h) have also been met, the plan is sufficiently certain and its making was not manifestly unreasonable. 42The roads contributions plan effective 31 March 2011 was a plan authorised by the Act. It was a valid plan.

Issue 2 - the validity of condition 27 43The essence of the applicant's challenge to condition 27 (apart from the challenge flowing from the collateral attack on the roads contributions plan) was that, firstly having regard to s 94 there must be a connection between development and the increased demand for public amenities, namely roads and secondly a condition requiring a contribution based on a contributions plan must specify the amount payable. That is, the amount must be identified in the condition. This was said to flow from the use of the expression "the payment of a monetary contribution" in s 94(1)(b). The first point is effectively dealt with in the earlier discussion about the plan. 44As to the second point, I see no basis for construing the Act in this way. What the Act authorised was the imposition of "a condition requiring... the payment of a monetary contribution". A condition may create this requirement directly by specifying the payment of amount. However there is, in my opinion, no reason why the creation and identification of the requirement cannot be done indirectly by reference to another document. Obviously the amount needs to be certain. But s 94(1)(b) existed in a statutory framework requiring the creation of contributions plans: s 94EA and the imposition of conditions "of a kind allowed by, and is determined in accordance with, a contributions plan": s 94B. Thus the Act mandated that the condition would be formulated by reference to a contributions plan. I see no reason why the calculation of the amount certain, cannot arise from and be based on the operation of the contributions plan. 45Indeed in so far as there are authorities addressing this point, they are to the effect that the total amount required to be paid by a condition can be ascertained, as to part of it, by referring to a contributions plan: see for example Mirvac Homes (NSW) Pty Ltd v Baulkham Hills Shire Council [2000] NSWLEC 199. If, in principle, this is permissible in relation to part of the amount, there would be no reason why it could not be so in relation to the entire amount. 46The imposition of condition 27 was authorised by the Act.

Issue 3 - the validity of condition 45 47The applicant's contention was that a condition requiring the dedication of land free of cost (like condition 45 in the present case) could be imposed only if the application for the development consent included, as part of the application, a proposal that certain land in the development would be dedicated free of cost. As a matter of fact, so it was submitted, there had been no such proposal in the application in the present case. Accordingly the Council had not been empowered to impose condition 45. 48In my opinion, the answer to this argument is tolerably clear. I will proceed on the basis that the expressions "a development application" and "the application" in s 80 is a reference to the application in contradistinction to documents which accompany it. That type of distinction is drawn in the Act: see, for example, s 78A(8), and the Regulation: see, for example, clause 50. However I entertain considerable doubt whether this is correct. On one view, the development application is, for the purposes of s 80, all elements of the proposed development submitted by the applicant for consent irrespective of where in the documentation any given element is articulated. 49But assuming a narrow construction of "development application", it can be noted that s 80A(1)(a) authorises the imposition of a condition if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. One of the matters referred to in that latter section is "any submissions made in accordance with this Act or the regulations": s 79C(1)(d). The Regulation requires that a development application be accompanied by a statement of environmental effects: see clause 50 and Part 1 of Schedule 1 to the Regulation. 50I have no doubt the expression "any submissions" should not be narrowly construed and would include any statement of environmental effects ("SEE") lodged with the development application (presently assuming the SEE is not part of the "development application"). In this matter, the SEE prepared for the applicant and accompanying the development application, when discussing pedestrian access, referred to "the open space lot intended to be dedicated to Council". That was a clear intimation, in my opinion, made on behalf of the applicant that lot 25 would be dedicated to Council. In this context the concept of dedication clearly comprehends dedication free of charge. 51The expression "relates to" or "relating to" are ordinarily treated as words of very wide import: see for example the observations of Kirby JA in Atrill v Richmond River Shire Council (1995) 38 NSWLR 545 at 551. Neither the immediate nor broader context would suggest they should be narrowly construed as they appear in s 80A(1)(a). It seems to me that this provision authorises the imposition of a condition giving effect to what, in substance, was an intimation by the applicant in a document accompanying the development application of what would follow in the event that consent was given to the application. That is, the condition related to a matter required to be considered, namely a submission made in accordance with the regulations. 52The Council was empowered to impose condition 45.

Conclusion 53For the preceding reasons, the application should be dismissed with costs. 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: 17 December 2011