N&S Olivieri Pty Ltd v Fairfield City Council

15. The principles referred to in Newbury are relevant in relation to the reasonableness of a condition. However, the applicant's challenge is directed to the fundamental issue of the power of the council to impose the conditions.
16. It is acknowledged that the council did not have a contributions plan relating to the road works as required by s 94B(1) of the EP&A Act when the conditions were imposed. Section 94(1) of the EP&A Act provides:- 94(1) Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, 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 consent to that application subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both.
17. Section 94(2) provides:- 94(2) A condition referred to in subsection (1) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
18. Section 94(1) of the EP&A Act entitles a consent authority to approve a development application subject to the dedication of land free of cost (s 94(1)(a)) or the payment of a monetary contribution (s94(1)(b)) or both where the development "…will or is likely to require the provision of or increase the demand for public amenities and public services within the area…". Section 94(5) provides that the consent authority may accept inter alia the provision of a material public benefit in part or full satisfaction of a requirement for contribution pursuant to s 94(1) or s 94(3) of the EP&A Act.
19. Section 94(11) provides:- 94 (11) A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved pursuant to section 94B.
20. The formation of the road adjacent to the applicant's development has a direct connection with the development: cf Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 at 266. Such requirement constitutes the provision of a material public benefit since the construction of a public roadway, without compensation, is the provision of a public amenity or service within the meaning of s 94(1) of the EP&A Act. The term "public amenity" should be construed broadly: see Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123. Although council has not stated the basis upon which such contribution was required, it is apparent that s 94(5) of the EP&A Act is the power pursuant to which condition 14 should have been imposed.
21. In Fitch v Shoalhaven City Council (1989) 67 LGRA 165 and in Meriton Apartments Pty Limited v Minister for Urban Affairs and Planning (2000) 107 LGERA 363 this Court determined that the provisions of Part 4 Division 6 of the EP&A Act constituted a code which limited the power of a council to impose contributions towards public amenities and services. In Fitch, Stein J (as he then was) observed at p 170:- Section 91(3)(h) does not merely permit the lawful imposition of a condition under s 94, it points to s 94 as the exclusive source of power for contributions or dedications for public amenities. It consciously provides for special (and additional) requirements for the validity of such conditions over and above those applicable to conditions under s 91 (other than, of course, subs (3)(h)). If a council could require (by condition) a dedication of land under s 91 as an alternative to s 94 it would lead to the special requirements of s 94 to be circumvented. Section 94 would tend to be avoided if a council felt it was unable to comply with it but could satisfy the Newbury tests alone (under s 91).
22. It follows that in the absence of a contributions plan the council had no statutory authority to impose condition 14 requiring contribution for any works for the public amenity because of s 94(11) of EP&A Act.
23. In view of the above finding it is unnecessary to consider the other grounds relied upon by the applicant in support of its claim of invalidity of the conditions, namely the nexus between the development and the reasonableness of the conditions. However, the Court makes the observation that the conditions, if valid, required work to be performed which had a direct connection with the development to which the consent was subject (see Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54; see also Toadolla). Further, such condition would have been reasonable: see Parramatta City Council v Peterson (1987) 61 LGRA 286; Newbury District Council v Secretary of State for the Environment; Rockdale Municipal Council v Tandel Corporation Pty Ltd (1974-77) 34 LGRA 196; Blacktown Municipal Council v Portelli (19972-74) 28 LGRA 224 at 226. Discretionary Considerations
24. The council submits that even if condition 14 is held to be invalid the Court should not grant any relief. The council relies upon the reasoning of Bignold J in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236. Bignold J (at p 245) refused relief because of the applicant's conduct of "…accepting the benefit of the development consent but seeking to be relieved of the burden created by the imposition of condition D22, not only belatedly but after the burden has been accepted by the applicant."
25. The above authority is distinguishable because in the present circumstances the applicant was unaware of the lack of power of the council to impose the challenged conditions until after the required work had been performed.
26. The applicant claims declarations of invalidity of condition 13 and condition 14. In the absence of a s 94 contributions plan the council had no power to impose the conditions. It follows that the applicant is entitled to the declarations of invalidity of the conditions. Claim for Restitution
27. The applicant submits that the Court has power to make an order pursuant to s 16 of the Land and Environment Court Act 1979 ("the LEC Act") and s 123(1) of the EP&A Act for restitution of its expenditure incurred in complying with the invalid conditions. It is submitted that the Court has power to hear and dispose of proceedings under s 123 of the EP&A Act which extends to making of an order "to remedy or restrain a breach of this Act …". By virtue of s 124 of the EP&A Act the Court is empowered, having found a breach of that Act, to "…make such order as it thinks fit to remedy or restrain that breach". The applicant claims an award of damages pursuant to such section.
28. The council submits that the Court has no jurisdiction to entertain such claim and relies upon Pioneer Homes Pty Limited v Liverpool City Council (1992) 77 LGRA 237. In this decision Talbot J refused to order a refund of fees paid to the respondent pursuant to invalid conditions. However no issue was raised in that decision concerning the power of this Court to award damages. The decision is therefore peripheral. Jurisdiction to award damages
29. Section 22 of the LEC Act provides:- 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
30. In National Parks and Wildlife Service & Anor v Stables Perisher Limited (1990) 20 NSWLR 573; (1990) 71 LGRA 286 at 291 the New South Wales Court of Appeal determined that a claim for damages in tort was not within the jurisdiction of this Court and that s 22 of the LEC Act did not extend the Court's jurisdiction. Kirby P at p 586 observed the structure of s 20(2) of the LEC Act and of its sub-paragraphs and said: The juxtaposition of these paragraphs makes clear the purpose of Parliament. It was to confer a jurisdiction on the Land and Environment Court to award damages; but confined to a particular class of defined cases most narrowly expressed. The present claim was not within that class of case.
31. Subsequent to the decision in Stables Perisher s 16(1A) of the LEC Act was enacted. It provides:- 16 Jurisdiction of the Court generally (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
32. In NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 Pearlman J reviewed numerous authorities concerning the scope of s 16(1A) of the LEC Act in a judgment delivered in February 2001. Her Honour determined (at p 412-413: par 28) that the jurisdiction of the Court extended to all matters that "are a step in the cause of action which this Court does have jurisdiction to determine, in the sense that those matters are incidental to the matter in which the Court has jurisdiction" and that s 16(1A) "operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix v Pittwater Council)".

33. In October 2001 the New South Wales Court of Appeal in Scharer v The State of New South Wales (2001) 116 LGERA 217 determined by majority that this Court had jurisdiction in respect of a claim for damages which accompanied a claim under the National Parks and Wildlife Act 1974. One month after delivery of the judgment in Scharer, Pearlman J in Neighbourhood Association DP285121 v Murray Shire Council & Ors (2001) 117 LGERA 95 determined that this Court had no power to hear a claim for damages for negligence arising out of alleged failure to obtain the requisite approval for a sewerage system. Her Honour held (at p 100:) 20. The position seems to be that s 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction: Mitchell v Waugh (1993) 82 LGERA 44. Thus, in obiter remarks in Nix v Pittwater Council (1994) 84 LGERA 199 at 205, Gleeson CJ stated that a claim for damages for nuisance could not reasonably be regarded as ancillary to class 4 proceedings alleging the carrying out of unauthorised earthworks in breach of the Environmental Planning and Assessment Act 1979 (NSW) . On the other hand, in Scharer v State of New South Wales (2001) 116 LGERA 217, it was held by Stein JA with whom Hodgson JA agreed (Davies A-JA dissenting) that a claim for damages for obstructing a right of way in a national park was ancillary to proceedings to be taken in this Court in its exclusive jurisdiction to enforce that right of way.

Summary of Authorities 34. The decisions referred to abovefall within two distinct categories. First, there are those cases where an applicant takes action to recover damages arising out of a common law claim which does not flow directly from the breach of the relevant environmental or planning law. The authorities establish that such a claim is not within the jurisdiction of this Court nor within its ancillary jurisdiction as conferred by s 16(1A) of the EP&A Act because it constitutes a separate claim. Thus in Nix the obiter remarks of Gleeson CJ (at p 203-204) relating to the limit of the Court's jurisdiction were made in reference to a cross claim for nuisance. In Neighbourhood Association DP 285121 the Chief Judge made her finding that this Court had no jurisdiction in respect of a claim for tort. In each of these authorities the claims arose out of the common law and was not ancillary to the breach of the environmental or planning law. 35. The second category of cases are those in which damages arise directly as a consequence of the breach of a statute in respect of which this Court has jurisdiction. In Scharer Stein JA held that this Court had jurisdiction to hear such a claim on two possible grounds. The claim could be determined because it constituted "…part of the enforcement of the same right…" (i.e. within s 20(2) of the LEC Act) arising in consequence of the breach of the environmental statute, or alternatively because it was ancillary within the terms of s16 (1A) of the LEC Act. It should be noted that in Stables Perisher, the Court of Appeal was then of the opinion that s 22 of the LEC Act could not extend the jurisdiction of the Court to award damages. 36. Sharer thus clarifies the power of this Court to award damages. If a claim can be categorised as one which constitutes part of the enforcement of the right arising out the breach of a planning law or if such claim is ancillary to such breach, the Court possesses the requisite jurisdiction to hear the claim. 37. The imposition of an invalid condition in a planning consent constitutes a breach of the EP&A Act (see: Building Owners and Managers Association of Australia at p 72), and the claim for damages arises directly in consequence of such breach and is incidental thereto. The circumstances are indistinguishable from Scharer but distinct from NTL, Nix and Neighbourhood Association DP 285121. The Court therefore determines that the claim for damages is one which may be entertained only by the Court pursuant to s 16(1A) of the LEC Act. Claim for chainage 110 to 240 38. The claim in respect of reimbursement for this portion of the roadway is made upon a different basis to the work for chainage 0 to chainage 110. In respect of this portion of the works no condition was imposed and the applicant proceeded to undertake such works upon the belief that council would, if the land were developed, impose a condition similar to that contained in condition 14. 39. Although the applicant has attempted to relate this claim to the claim arising out of condition 14, the Court considers that it is a separate claim and does not arise as an ancillary or incidental matter to the breach of the EP&A Act. Accordingly this Court has no jurisdiction in respect thereof. Declarations and Orders

40. The Court makes the following declarations and orders:-

1. A DECLARATION that condition 13 of the Notification of Determination of Development Application No 270/97 dated 12 September 1997 issued by the respondent to the applicant was imposed in breach of the Environmental Planning and Assessment Act 1979 and is invalid.
2. A DECLARATION that condition 14 contained in the Notification of Determination of Development Application No 270/97 dated 12 September 1997 issued by the respondent to the applicant was imposed in breach of the Environmental Planning and Assessment Act 1979 and is invalid.
3. A DECLARATION that the applicant's claim for damages sustained in consequence of the breaches of the Environmental Planning and Assessment Act 1979 referred to in Declaration 1 and Declaration 2 may be determined by this Court.
4. AN ORDER that a hearing be fixed by the Registrar for the purpose of the assessment of damage and that these proceedings be listed on 22 May 2002 for directions for such hearing.
5. COSTS reserved.

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