Meriton Apartments Pty Ltd v Council of the City of Sydney

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Craig v State of South Australia (1995) 184 CLR 163 Heritage Real Estate Pty Ltd v Shoalhaven City Council (1990) 130 LGERA 124 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 CASES CITED: Meriton Apartments Pty Limited v South Sydney City Council, NSWLEC, Brown C, 12 September 2001 (unreported) Meriton Apartments Pty Limited v Council of the City of Sydney [2009] NSWLEC 1336 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159 Segal v Waverley Council (1995) 64 NSWLR 177 Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262

APPELLANT Mr D Russell QC with Mr M Seymour SOLICITOR LEGAL REPRESENTATIVES: Meriton Group RESPONDENT Mr P McEwen SC with Ms L Byrne SOLICITOR City of Sydney

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10860 of 2009 Meriton Apartments Pty Ltd v Council of City of Sydney (Section 56A appeal)

JUDGMENT 1 Her Honour: The Appellant, Meriton Apartments Pty Ltd, appealed the decision of the Senior Commissioner in Meriton Apartments Pty Limited v Council of the City of Sydney [2009] NSWLEC 1336 (Meriton No 1) under s 56A of the Land and Environment Court Act 1979 (the Court Act). Such appeals are provided for under the Court Act in relation to questions of law only. The Senior Commissioner upheld the Appellant's appeal against the amount of s 94 contribution levied by the Council under the City of Sydney Development Contributions Plan 2006 (the s 94 plan) in relation to the Appellant's site and reduced the amount of contribution levied. The Senior Commissioner accepted the submissions of the Appellant on the calculation of credit based on a workforce population as a necessary adjustment of the contribution amount of $5,018,529,47 levied by the Council. He also concluded that the amount of credit should be reduced from the amount of $467,462.28 sought by the Appellant to $186,984.91 because no rates were paid on the property for a certain period.

2 The Appellant appeals against the Senior Commissioner's decision in Meriton No 1 at [60]-[65] where he reduced the amount of credit. He considered he had discretion to modify the amount of credit by taking into account other relevant matters (at [60]). He took into account that the land had been occupied for a lengthy period by government authorities which did not pay rates as follows at [61]-[65]: 61 There is, to my mind, one significant matter dealt with (and adopted by) Brown C [in Meriton v South Sydney City Council , NSWLEC, Brown C, 12 September 2001 (unreported)] that causes me to conclude that a degree of discounting (and indeed, a significant degree of discounting) should be applied to this calculation. In his decision, Brown C made the observation set out below concerning the rateability status of the property in those proceedings. He said, in Meriton v South Sydney: 24 ………………... It must be accepted that during the ACI occupation of the site, contributions were made to the Council through at least land rates. These rates would have been distributed through the Council budgetary process to the areas thought by the Council, at the time, to require the provision of additional expenditure in areas likely to include land acquisition, new public amenities and public services or embellishment of existing facilities. The decisions on the allocation of the resources would have been based on the perceived needs, at that particular time, by the elected Council.

25 I see no need to delve into the particular distribution of expenditure during the ACI ownership to determine whether a credit should be granted. In my view, it is sufficient for ACI to have provided funds to the Council for a credit to be granted. It is the function of the Council to distribute these funds in the manner it thought appropriate. 62 However, it is not the position that applies here - as there has been a significant period when the property has been owned by government authorities, resulting in a long, continuous period when no rates have been levied on the property. Brown C's analysis of the fairness of having regard to rateability is, in my view, appropriate to be considered and adopted in these proceedings but account needs to be had of the period when such rates were not paid. Although the planning experts did not agree that such apportionment was appropriate - if it were to be, they agreed that, as I understood it, such apportionment of might properly be calculated by having regard to the number of years that the property was rateable compared to the total number of years since the peak workforce.

63 Just as Brown C considered that it was appropriate to have regard to the fact that rate income had been provided to the council for the whole of the period while the site was being used for industrial purposes, I consider it equally appropriate to take into account the fact that, for a considerable period of time during the period since the peak British Motor Corporation workforce I have adopted as the appropriate year for the contributions offset calculation, the site was in commonwealth or state public ownership and thus not rateable.

64 Just as Brown C took into account the fact that, within the discretionary budget of the council, payment of rates could be used to subsidise or contribute towards the costs of community facilities utilised by industrial workers as an entitling factor for a credit, accepting the logic of his approach, as I do, it is then appropriate to accept that periods of non- rateability constitutes a period where there was no revenue from the site to subsidise or contribute towards the costs of community facilities utilised by industrial workers. As a consequence, in my opinion, to take account of this, a discounting factor is required.

65 I do not consider that taking account of this requires any form of precise calculation of the nature used by the council to adjust the contributions policy. I consider it is sufficient simply to take the amount that has been agreed between the parties as being the relevant amount on an unadjusted calculation base and multiply it the fraction that is the number of rateable years over the total number of years. There is no readily justifiable alternative basis available, in my view.

3 The Senior Commissioner considered the credit should be modified to reflect this circumstance, resulting in a reduction to $186,984.91. Environmental Planning and Assessment Act 1979 4 Sections 94(1) - (4) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) provide: (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 Sections 94B(1) and (3) of the EP&A Act provide: (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). … (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. Appellant's submissions 6 Sections 94(1) and 94(2) provide for the levying of contributions only in relation to additional demand for facilities over and above what is currently existing. The Senior Commissioner took into account a legally irrelevant matter when he discounted the credit calculated on the number of workers at the site on the basis of whether rates had been paid for the land in the past. A decision-maker who takes into account irrelevant material commits an error of law in accordance with Craig v State of South Australia (1995) 184 CLR 163 at [12] referring to jurisdictional error but also extending to errors within jurisdiction. 7 No other decision where such an approach has been taken has been found. The Senior Commissioner refers in [61]-[62] to Meriton Apartments Pty Limited v South Sydney City Council, NSWLEC, Brown C, 12 September 2001 (unreported) (Meriton v South Sydney) in which Brown C referred to the payment of rates as that was an issue raised before him but did not make any reduction on that basis. That discount fails to account for the contributions of that existing workforce and thus undermines a fundamental principle of s 94 that a contribution is only for the provision of or increase in demand for public amenities and facilities, requiring an assessment of existing demand. The application of the discount to the credit to which the Appellant was entitled means the Senior Commissioner erred in assessing the existing demand. 8 Neither of the two planning experts adopted this approach, which indicates it was the wrong question or test. The Senior Commissioner was not entitled to take his own approach without providing clear reasons for why he did not prefer the evidence of either expert. The expert evidence suggested only one conclusion was permitted on the statutory test for a condition lawfully imposed under s 94 and in accordance with the s 94 plan, modified to be reasonable. In the absence of any evidence conceding that the non-payment of rates had a relationship to any measurement of demand, it was not open to the Senior Commissioner to ask himself what offset against the discount would be appropriate to reflect years in which the subject land was in public ownership. 9 Nor was this an issue raised in the Council's Statement of Facts and Contentions. The test for relevance is to look at the issues framed by the parties in the context of the statutory regime per Segal v Waverley Council (1995) 64 NSWLR 177 at [43]. 10 This matter is an appeal under s 96 of the EP&A Act seeking a modification so that the range of matters before the Court was more limited than would be the case in a s 97 appeal. The condition the Appellant sought to modify could be dealt with by the Court under s 94B(3) of the EP&A Act which empowers the Court to disregard specific sections of a contributions plan. The s 94 plan allowed a particular type of "discount" on contributions owed on the basis of an existing workforce (a workforce demonstrating an existing demand) but limited the calculation to a particular census date. No offset against that credit is provided for in the s 94 plan. Nor does s 94(1) so provide. 11 It is accepted and is clear from the transcript that the Senior Commissioner gave the parties warning that he was considering imposing such an offset and obtained evidence from the experts of how he might calculate that offset. 12 Brown C in Meriton v South Sydney considered the issue of discount for an unrateable period at [24]. Brown C's observation about the payment of rates was expressed in the context of rejecting a submission made by the Council that there was no evidence concerning the demand the workers would have made of existing infrastructure. He further considered he should not delve into the particular distribution of expenditure during the ACI ownership of the site in question. It was sufficient that ACI could be seen to have provided funds to the Council. The Senior Commissioner was not creating a principle that the payment or non-payment of council rates was linked to the extent of future development contributions that were owed. 13 In particular, the submission of the Council (asserted at par 20 of Council's submissions in chief) that a commissioner of the Court is wholly free to formulate any conceivable contribution condition based solely upon a nebulous concept of reasonableness is wrong. The Act remains binding, as does the Newbury test, in terms of how a condition is to be imposed if that condition requires the payment of development contributions. Further, the Act specifically directs attention to a contributions plan when imposing contributions conditions (s 94B). 14 The Senior Commissioner was required to consider a condition imposed in accordance with a contributions plan, subject to the reasonableness of the plan under s 94B(3), so that the case is indistinguishable from the error in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [33]. In that case, in rejecting part of the s 94 plan that would produce unreasonable results, the Senior Commissioner was not entitled to substitute his own view of "general policy" in preference to the remaining terms of the s 94 plan. The s 94 plan did not entitle the Senior Commissioner to consider an offset, nor that land in public ownership for a period of time should be treated differently to land always held in private ownership. The appeal should be upheld and the Senior Commissioner's decision modified in accordance with the draft orders attached to the written submissions (which essentially substitutes $467,462.28 for $186,984.91 as the amount of credit to which the Council is entitled). Council's submissions 15 The appeal does not raise a question of law. The finding of the Senior Commissioner criticised by the Appellant that there should be a discount of the credit allowed is one of fact. The s 94 plan gives credit for existing workforce numbers, the rationale for doing so is to acknowledge and take into account contributions made (by way of rates) for existing/past public amenities and services. It is not the existing workforce which makes contributions but the owner of the land who pays rates. The assumption is made that the owner pays rates. 16 The Senior Commissioner is not bound by the terms of the s 94 plan as specified in s 94B(3) of the EP&A Act, unlike the Council which is bound by the terms of the s 94 plan by virtue of s 94B(1). While the s 94 plan is written in terms of existing demand and existing workforce in acknowledging the rationale of giving credit for past contributions, "reasonableness" requires that an allowance be given for the fact that of the intervening 45 years, rates were not paid and no contribution received by the Council towards the provision or maintenance of infrastructure for 27 years. That was the approach of the Senior Commissioner.

17 It was accepted at the trial by the Council that reasonableness requires that the formula in the s 94 plan for recognising past contributions for existing workforce be interpreted as recognising the contribution not of the workforce per se but of the landowner paying rates on behalf of that workforce. 18 The Council submitted that, whilst the s 94 plan talks in terms of "existing demand" and "existing workforce", in acknowledging the rationale of giving credit for past contributions, "reasonableness" requires that an allowance be given for the fact that of the intervening 45 years, rates were not paid, and no contributions were received by the Council for payment towards the provision or maintenance of infrastructure for 27 of those years. That is what the Senior Commissioner did. There was no "existing demand" or "existing workforce" on the date of the issue of consent in 2009.

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.

35 The Appellant argued that the Senior Commissioner's discretion was limited because this was a modification application under s 96(3) rather than a merit appeal under s 97. The relevant statutory context for s 94 contributions under which the Senior Commissioner made his decision is identified above and that applies in relation to the modification application which concerned the amount of s 94 contribution that should be levied as a development consent condition. The exercise of his discretion must be within the statutory context relevant to the appeal before him but there is no basis for suggesting that his discretion was exercised too widely given that statutory context. 36 The Appellant is unsuccessful in its s 56A appeal and it should be dismissed.

Orders 37 The Court makes the following orders: 1. The Appellant's s 56A appeal is dismissed 2. Costs are reserved.

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