Consideration
41Section 94 of the Act provides:
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 - SECT 94
Contribution towards provision or improvement of amenities or services
94 Contribution towards provision or improvement of amenities or services
(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) The consent authority may accept:
(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or
(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).
(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:
(a) a benefit provided as a condition of the grant of development consent under this Act, or
(b) a benefit excluded from consideration under section 93F (6).
(7) If:
(a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and
(b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,
then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.
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.
(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.
42Section s94B (3) of the Act empowers the Court, on appeal, to reduce the amount of a contribution imposed under s94 if it is unreasonable in the particular circumstances: Rose Consulting Group v Baulkham Hills SC [2003] NSWCA 266:58 NSWLR 159.
43In exercising that discretion, however, I must pay heed to the subject matter, scope and purpose of the imposition of the condition requiring the payment of a monetary contribution under s94 (1) of the Act. That means I must have regard to the "net demand for public amenities and services generated by the development in question": (Meriton Apartments Pty Ltd Council of the City of Sydney [2011] NSWCA 17; 182LGERA 355 per Tobias JA at [56] - [58]). Tobias JA continues (at [61]) by saying that the Act is "... only concerned with ensuring that the present developer not be required to meet the needs that are not generated by the development in respect of which consent is being sought."
44There is no dispute between the parties that the development will generate a demand for the public amenities and services identified under the CP2006.
45However, in considering the net demand generated the Council believes the applicant is not entitled to a credit under cl 2.15 of CP2006 because the sites were not occupied (by workers or residents) at the date of the lodgement of the development applications. The evidence is that the sites were vacant at the benchmark date of 2001 Census; therefore, there is no basis under cl 2.15 of the CP2005 for a credit. It is also the Council's case that the exceptions do not apply to the facts of these appeals. The sites are not single residential allotments; the sites were not vacated to facilitate these development applications.
46The consideration of prior merit decisions is set out in Segal v Waverley Council (2005) 64 NSWLR 177 in that they have no binding precedent effect in my determination of these appeals. Despite that, the Council relies heavily on the reasoning of the Court in Meriton (the Tuor C decision) because it is factually similar and considered the application of the 2001 Census benchmark date in cl 2.15 of CP 2006 to determine the existing population of the site at [39]. In that case the Court determined that the years that has elapsed between the date of the development site's past peak population (early 1970s) and the 1996 demand assessment date meant that the site's past peak population had no relevant nexus with the set of specific amenities and services the subject of the contribution and; therefore, could not be held to be an existing demand for the purposes of determining a reasonable s94 contribution for the development. It also determined that for any historic workforce to be considered it should demonstrate a demand for the specific services to be provided by the plan at [121].
47In this case the Council makes the same submissions.
48Although the applicant accepts the proposition that the historical workforce present on the subject site did not use, and had no demand for the specific facilities and services which the respondent has constructed and proposes to construct as detailed in the Council's CP2006, it argues, a credit should not be dependent on a subjective analysis of the personal demands of a past workforce. It embraces the reasoning in the Court of Appeal case of Meriton CA at [61] and submits that an historical inquiry about the specific needs of past workers in this case "tells the inquirer nothing that would assist in determining the issue posed by s94 (1)".
49I agree with the submission of the applicant that a credit is not "discretionary" or "something in the way of a gift from the Council". The Act and CP 2006 do not require an historical workforce to demonstrate a demand for the specific public amenities and services provided under CP2006 in order to obtain a credit. The determination of whether a credit applies on the facts of each case is a mechanical application of the particular Plan. And where the application of the Plan results in the imposition of an unreasonable s94 condition then the Court on appeal has power to address the issue under s94B (3).
50The applicant's contends that an unreasonable s94 condition has been imposed on these consents and the Court needs to address that under s94B (3). It invites the Court to consider the following: if the site is occupied at the benchmark date of the 2001 census then there is no need to inquire if the worker or resident demands the public amenity or service within CP2006 in order to get a credit. However, if the site is vacant (and the exceptions in cl 2.15 do not apply) then it is necessary to inquire into the specific demands of the past workforce in order to justify a credit. It poses the question if every worker is the same under the Plan, as conceded by Mr New, then why is it reasonable to inquire as to the specific demand in one circumstance and not in the other?
51In posing the question above the applicant assumes that a "past worker" on the site before the benchmark date is equal to a worker on the site after the benchmark date. However, the CP2006 does not recognise a "past worker" on the site before the benchmark date in the particular circumstances of this case. The question is does that result in the imposition of an unreasonable s94 condition in this case. Any general unreasonableness or inequity in the Plan cannot be addressed under in s94B (3). I cannot amend the Plan in these appeals.
52In my assessment of the evidence the use of an arbitrary benchmark date to determine if a former population is to be construed as "present" or "deemed to exist" is not necessarily unreasonable for the purpose of determining the existing demands for public services and amenities generated by a development.
53Where there is a temporal disconnect from the historical workforce on the site and the development proposed there must be a notional method to acknowledge past workers outside the benchmark date in CP2006. The requirement for an identifiable nexus of the historical workforce with the identified services and amenities in CP2006 is a reasonable method.
54In these appeals the site had been vacant for a significant period of years prior to the benchmark date in the CP2006 and, long before the lodgement of these development applications. At the time of the 2001 Census on 1 January 2001, the development site was clear of all buildings and was unpopulated. For the purposes of cl 2.15 there was no existing population on the site on that date and therefore the Plan gives no recognition of a past worker. In order to obtain a credit the Council contends that there must be some nexus demonstrated between the past workforce and the specific services and amenities.
55The fact that a site was developed with industrial buildings and was occupied or capable of being occupied by a significant number of workers some 40 years ago or with fewer workers 13 years ago does not of itself justify a credit in circumstances where the CP2006 does not provide for one. The CP2006 categorically states that it does not allow a credit for any population that departed the site at any time prior to the most recent development application unless it falls within the exceptions in cl 2.15.
56According to the development history given by Dr Fitzgerald there was little in the way of public amenities provided when BMC closed in 1974 or when the Navy occupied the site until it was vacated in 1995. In 1997 the land was sold to Landcom for rehabilitation and the development of infrastructure. The Victoria Park redefined Masterplan adopted by the Council provided for an entirely new development for this brown field site in 1999.
57Section 94 obliges the developer to make a contribution to the cost of identified community facilities and services for the net demand generated by the development. The developer is entitled to a credit for any demand already existing or not generated by the development for specific services and amenities. But under s94 the developer can only be required to delineate land or pay money to meet: a). a demand that is generated by its development ;or b). an increased demand: Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17 at [58].
58I accept the evidence of Mr New in the joint statement at p6 that "It is the wholesale redevelopment of the Green Square area that requires the provision of the new roads, open spaces and community facilities in the Southern precinct included in CP2006.For these items, the fact that there were industrial buildings existing on the Victoria Park site for years before redevelopment, is not relevant to determining reasonable contribution for the VSQ2, VSQ3 and VSQ4 developments. For example Garigal Avenue (a specific CP2006 item, which has been constructed) is required to be provided regardless of the pre existing Victoria park workforce".
59In my assessment of the evidence there is nothing inherently unreasonable about a baseline contribution plan. It enables the consent authority to establish a baseline population to determine increasing population over the life of the contribution plan period or to a future baseline year. To the extent that it may work unreasonably in the particular circumstances of a case, s94B (3) allows the Court to adjust the contribution. It is one thing to have regard to a population that was on a site immediately prior to the baseline but it is quite another to have regard to a population on a site that occurred many years before the baseline commenced. If a past worker is to be recognised as the basis for a credit there must be some identifiable nexus with the identified amenities and services under the Plan to justify a credit. CP2006 seeks to recoup costs already incurred by the Council in providing public services and amenities in the locality since 1996 the demand for which was generated by development occurring after that time; and collect money to provide for the cost of new public services and amenities the demand for which is to be generated by future development in the locality up to 2021.
60Based on the evidence and my reasoning above I am satisfied that the s94 conditions imposed on the consents are not unreasonable. Therefore, I make the following orders: