19 The task confronting the Senior Commissioner was to resolve a question of fact, not a question of law. The factual task involved:
a) an assessment of the reasonableness or otherwise of the relevant provisions of the extant s 94 plan in the circumstances of this case;
b) if those provisions were found to be unreasonable then it was for the Court to make the choice of a method, approach, or formula which was reasonable; and
c) the choice of the input figures and calculations in concluding the task of fixing an alternative contribution which was reasonable.
20 The task of the Court in the exercise of its power to disallow or amend a condition of a consent found to be unreasonable (s 94B(3)) involves factual findings. The findings are not questions going to the legal validity of the s 94 plan. Factual choices founded on evidence are not susceptible to challenge because of the significance given to particular considerations, or choices are made as to what weight to give particular matters (Heritage Real Estate Pty Ltd v Shoalhaven City Council (1990) 130 LGERA 124 at 128-129). No allegation is made that the Senior Commissioner has defined the issues of fact(s) he has to determine so as to have misdirected himself, otherwise than in accordance with the relevant law governing his task (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156C-G; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).
21 The Senior Commissioner did not reject the evidence of the experts. He applied the evidence given by the expert for the Appellant on the basis posed to him by the Senior Commissioner that if non-payment of rates was relevant what approach should be taken. That approach was adopted by the Council's expert also. The Senior Commissioner specifically raised this issue with the parties and their experts. While the Appellant submitted the issue was irrelevant, the Appellant does not identify which wrong test the Senior Commissioner applied. The approach adopted by the Senior Commissioner of applying a ratio of rateable to non-rateable years was:
a) based on the evidence of the Appellant's expert witness Mr Smith (TS 18 August 2009, p 36.1-.20) and agreed to by the Council's witness Mr Hewetson (TS 1, p 36.2-.44);
b) this evidence was not pursued in cross-examination by the Appellant (TS 18 August 2009, p 39.20-.50); and
c) notwithstanding express invitation to address on this approach (TS 18 August 2009, p 43.25), that invitation was not availed of (according to the transcript) other than to say it was irrelevant.
22 The Court has the power by virtue of s 94B(3) to disallow a condition or amend it. In doing so it will use the criteria in the respective plans according to what is reasonable, see Talbot J in Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262 cited in Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159 at [35].
Finding
Statutory context
23 It is necessary to understand the statutory context and practice in relation to the calculation of s 94 contributions under which the Senior Commissioner was determining this matter in order to properly assess the Appellant's arguments. The provisions of s 94(1) and 94(2), set out above, are in general terms and state that a contribution can only be imposed for the increase in demand for public amenities and public services within the area resulting from a development. Section 94 contributions can only be levied by a Council under s 94B(1) if determined in accordance with a contributions plan made under s 94EA and the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation). Section 94(4) states that only reasonable contributions can be levied under s 94(3). The s 94 plan is the relevant contributions plan and was tendered. It is a lengthy document and addresses a number of issues, including the approach to calculating existing development in order to assess the increase in demand for which contributions can be levied under s 94(1). The appeal before the Senior Commissioner concerned one aspect of calculating existing demand, being the calculation of credit for the past workforce population on the site as provided for in the relevant s 94 plan.
24 As referred to in Meriton No 1 at [16], the s 94 plan specifies circumstances in which a credit might be granted for past occupation of a site, including for industrial purposes, when assessing an existing demand for services and facilities. He notes the credit is designed to reflect the extent to which the past population would have created a demand for public facilities. The assessment of existing demand is provided for in Section 2.15 concerning credit for past worker population where a site is vacant and in Section 4.16, titled workforce occupancy rates, specific provision is made for credits for past industrial or commercial occupation (set out at [22]-[23] of Meriton No 1).
25 The Council in its submissions referred to the s 94 plan more generally and the Development Contributions - Practice Notes July 2005 issued by the Department of Infrastructure, Planning and Natural Resources. These are intended to provide guidance to local councils on the correct approach to the determination of contributions. A cursory reading of both documents suggests that there are many factors that can be considered as relevant to calculating existing and future demand for the purpose of determining a s 94 contribution. For example, the Practice Notes refer to discounting contributions and credits for existing development. Reasonableness is a guiding principle as identified in the Practice Notes at page 1 when identifying principles underlying the calculation of development contributions and as held in several cases, for example Trehy & Ingold at 275-276. Further, that approach is reflected in the wording of s 94B(3) which provides that a commissioner can amend a development consent condition based on a s 94 contributions plan if it is unreasonable in the particular circumstances of a case (but that decision does not amend the plan itself).
Error of law
26 The Council submitted that the Appellant's appeal was in relation to a finding of fact and did not raise an error of law. I agree that the Senior Commissioner's finding in relation to the land not being rateable for a certain period and the application of that finding is a also finding of fact. The Appellant's challenge is on the basis of an administrative law ground of review that the fact taken into account in reducing the credit was as a matter of legal principle an irrelevant matter and that gives rise to an error of law, relying on Craig v South Australia. That is a ground theoretically available to the Appellant in a s 56A appeal although I consider it is borderline as to whether there is such an error of law in this case. As submitted by the Council findings of fact and the weight attributed to them by a decision-maker, here the Senior Commissioner, do not generally give rise to errors of law, as identified in Azzopardi amongst many other cases. I will nevertheless determine this matter on the basis that the appellant has raised an error of law.
27 As held in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 by Mason J at 40 (Gibbs CJ and Dawson J agreeing, Brennan and Deane JJ concurring on the case but silent on this point) in order to succeed on a challenge on the basis that an irrelevant matter had been taken into account, that matter must be expressly or by implication a matter which a decision-maker must ignore. There is no specific matter referred to in s 94 or other related sections in subdivision 3 - local infrastructure contributions in Div 6 of the EP&A Act which must be specifically ignored when determining s 94 contributions. The Appellant must therefore establish that the fact or matter it says is irrelevant has to be ignored as a matter of statutory interpretation in light of the objects and purpose of the EP&A Act in the context of the determination of s 94 contributions in particular.
28 Given the statutory context and the complicated exercise that is involved in the determination of s 94 contributions, the Appellant's submission that a particular matter cannot fall within the consideration required by the terms of s 94(1) and (2) and is therefore irrelevant is not self-evidently correct. The requirements of the general terms of s 94(1) and (2) alone do not provide a great deal of guidance on what matters are relevant as they are drafted in broad terms but were the sole focus of the Appellant's case as to what is relevant or irrelevant. The Appellant's submissions emphasised that s 94 focuses only on the levying of contributions for extra demands resulting from a development as suggesting that the Senior Commissioner's application of a discount to the credit for the existing workforce population was self-evidently incorrect. These sections are drafted in broad terms and it is clear from the summary of the relevant instruments and policy documents above in par 23-25 that the determination of s 94 contribution rates can be a complex exercise involving consideration of numerous matters none of which are specified in s 94.
29 The s 94 plan contemplates apportionment of contribution based on an assessment for existing workforce population (Section 3.5, 3.6) as part of the necessary analysis to determine the overall contribution amount. The Senior Commissioner's consideration under challenge in this appeal is in relation to that calculation. That consideration is set out at [60]-[65] of Meriton No 1 (par 2 above). The Senior Commissioner identifies as a significant matter potentially giving rise to a discount is whether land is rateable, referred to in Meriton v South Sydney. He notes that the position in this case is different as there has been a significant period when the property was owned by government authorities which did not pay rates. He considers it is relevant to take into account that no rates were paid on the site for a considerable period. He notes the planning experts did not agree that such a discount was relevant but did agree on an approach to the calculation of a discount if it was applied. The reason he considered the discount was relevant is identified in [64]. Contrary to the Appellant's submission (par 8 above) the Senior Commissioner provided reasons for why he took the approach he did and did not have to express these in terms of why he did not prefer the evidence of either expert.
30 The Council's submissions set out at par 19 and 20 correctly identify the task undertaken by the Senior Commissioner in relation to making findings of fact in the context of the s 94 plan before him and in light of the exercise of discretion he had under s 94B(3). The Appellant's submission summarised in par 13 can be accepted in relation to the limit of the task before the Senior Commissioner but that does not fairly characterise what he did in his reasoning and approach.
31 The Appellant submitted that the error in this case was indistinguishable from that identified by the Court of Appeal in Premier Customs Services (par 14 above). I agree with the Council's submission that that case is distinguishable from this matter as the statutory context is different. Premier Customs Services was considering whether there was an error of law in relation to a commissioner's consideration of relevant matters under s 79C of the EP&A Act, in particular the application of building setbacks in the relevant development control plan. Macfarlan JA (Ipp and Hoeben JJA concurring) at [33] held the commissioner had failed to take proper consideration of the s 94 plan as required by s 79C and applied his own view of the appropriate general policy (on building setback). Here the Court has specific power to amend a condition of development consent based on a s 94 plan, as conferred in s 94B(3), where the Court considers it is reasonable to do so. The Senior Commissioner in making a discount from the credit given for past demand was not dealing with general policy considerations but rather the specific facts before him. This appeal must fail as there is no relevant error of law namely the taking into account of a legally irrelevant matter identified in the Senior Commissioner's approach contrary to the submissions of the Appellant.
32 Meriton No 1 is the first time that the circumstance that rates have not been paid on a property has been taken into account and a credit for workforce population has been reduced accordingly. That alone does not render it an irrelevant consideration.
Other matters
33 The Appellant made a number of other criticisms of the way the Senior Commissioner determined the matter which are not strictly related to whether he took into account an irrelevant matter. I will deal with these for completeness. He is criticised for introducing an issue not raised by the parties. Segal per Tobias JA at [42] was relied on by the Appellant in making that submission but that case does not support the proposition that the Senior Commissioner was bound by the issues as framed by the parties. Segal considered the duty of a commissioner to give reasons when he decides not to follow an earlier decision on similar facts made by another commissioner. A commissioner can consider all issues he or she considers relevant. A commissioner of this Court is not bound by the statement of facts and contentions of the parties. The power of a commissioner under s 94B(3) is not limited to the parties' approach to the s 94 plan, as submitted by the Council.
34 A commissioner is also not bound by the views of the parties' experts. They are there to assist the Court in arriving at a conclusion on relevant issues. The parties referred me to extracts of the transcript which make plain that the Senior Commissioner considered this issue was relevant and raised it with the parties and their experts in the course of the hearing. Their views were obtained on whether they agreed with such an approach, to which the response was generally not. They were also asked that if that approach were to be adopted, how it should be applied. Both experts gave their views on these matters to the Senior Commissioner, with general agreement between them on the approach if this issue were to be considered relevant, as set out in the Council's submissions in chief at par 21 which identified the relevant evidence. The Senior Commissioner relied on that evidence. No issue is raised that there was a failure to accord procedural fairness by the Senior Commissioner.