Meriton Apartments Pty Limited v Council of the City of Sydney
[2009] NSWLEC 1336
At a glance
Source factsCourt
Land and Environment Court (NSW)
Decision date
2001-09-12
Before
Mr P
Source
Original judgment source is linked above.
Judgment (33 paragraphs)
Introduction 1 SENIOR COMMISSIONER: Meriton Apartments Pty Limited (the company) has a development consent, Development Consent D/2007/2330/D, from the Council of the City of Sydney (the council) to construct 319 apartments and a limited amount of commercial/retail space at 5 Hutchinson Walk, Zetland (the site). This development is currently under construction. 2 The council's City of Sydney Development Contributions Plan 2006 (the contributions plan) ensures that new developments make an appropriate contribution, relative to their size, to meeting the cost of new community facilities required by demand for them caused by the development. In this instance, as a result of modifications to the original proposal and the indexation provisions of the contributions plan, the company has been levied with a contribution set at $5,018,529.47. 3 The company and the council agree that, if the company is unsuccessful in these proceedings, that amount is the amount due to the council pursuant to the contributions plan. 4 The company, in an application made to the council on 26 February 2009, sought to modify the development consent by deleting the amount of $5,018,529.47 and substituting instead the amount of $4,551,067.19 - a reduction of $467,462.28. In addition, not relevant in these proceedings but merely as an observation, the company has already paid the council $4,950,654.90 toward the contribution levied by the council. 5 In these proceedings, I am asked to determine what amount, if any, should be credited against the $5,018,529.47 contribution levied by the council. Such a credit is said by the company to arise is a consequence of past industrial occupancy of the site and the workforce of that industry requiring the provision of public services and facilities. The amount claimed by the company as an offsetting is $467,462.28 (as sought in the modification application noted above). The basis for calculation of the sum claimed is discussed later in this decision. 6 Although the amount that remains owed to the council by the company is $67,874.57, any offset that might result from my determination in these proceedings exceeding the amount that the company presently owes the council may be of no utility. This is for reasons that do not require to be explored in these proceedings. However, the parties have agreed that I should simply proceed to hear and determine the amount of any credit to be included in modified conditions of development consent that should be granted to the company as a consequence of prior industrial occupation of the site. 7 The parties have also agreed that the consequence of any determination that I might make (if it were to go beyond merely extinguishing the debt that the council is currently owed by the company) is a matter to be dealt with by the parties, if necessary, in other proceeding in a different Class of the Court's jurisdiction. Past use of the site 8 The site of the company's proposed apartment development, currently under construction, forms part of a much larger site that has had a variety of uses since the 19th century. The uses of the totality of this larger site are common for the company's apartment block development element that is the subject of these proceedings. At this point, it is convenient to set out, briefly, the past history of the much larger site. 9 For a considerable period of time until the early 1950s, the site was used for horseracing purposes as part of the Victoria Park race track.