Conclusion and findings
40Section 94 of the Act provides that if a consent authority is satisfied that development for which consent is sought is likely to require the provision of or increase the demand for public amenities and public services within an area a condition may be imposed on that consent requiring the dedication of land free of cost and the payment of a monetary contribution or both. Condition C(11) is made in accordance the provisions of s 94(1)(b) and there is no dispute between the parties that the condition is validly imposed.
41The applicant is seeking to offset the cost of providing the public car park in the development against the contribution sought to be imposed by the Council under Condition C(11). In addition, it is seeking the reduction of the quantum of that contribution to take into account the development of the site.
42The Council does not dispute that the quantum should be reduced to reflect the approved floor space of the existing building and that such would be consistent with the provisions of its s 94 Plan. What is in dispute is the amount that the contribution should be.
43Having regard to the evidence of Mr Fletcher and Mr Mackay, I prefer the evidence of Mr Fletcher that the existing built form should be applied when calculating the credit he attributed to floor space of the whole of the building. That is based on survey data that was not refuted and more recent approvals than those relied on by Mr Mackay. Accordingly, I agree that the contribution to be levied under condition C(11) should be $1,555,504.96 based on rates calculated as at 1 July 2011.
44My Ayling, for the applicant, contends that the council, and in this case the Court, has the discretion to apply a condition requiring the payment of a contribution or not and that, despite the existence of the s 94 Plan, there is no statutory duty to impose a condition that requires any payment. I agree. He further contends that to apply the condition in the circumstances of the case, where the cost to the applicant of providing the carpark exceeds both the value of the carpark to the council as evidence by Mr Dempsey and the total payment due under that condition, is unreasonable.
45S 94B (3) provides that a condition under s 94 that is of a kind allowed by contributions plan may be disallowed or amended by the Court on appeal, because it is unreasonable in the particular circumstances of the case even if it was determined in accordance with the relevant contributions plan. Therefore, the test in this matter is whether the application of condition C(11) is reasonable circumstances of the case.
46Section 94(6) of the Act provides:
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).
47Mr Jackson submits that the car park is the material public benefit anticipated in the Council's DCP and that the applicant has voluntarily offered it to the Council in return for the additional two storeys in height. From the evidence provided, particularly within the council's bundle, Exhibit 2 and the Statement of Environmental Effects (SEE) lodged with the application found at Tab 3, that contention has particular relevance to the case. That document makes several references to the proposal incorporating a public carpark that would be dedicated to the council and I particularly have regard to that contained at Folio 55 (p36 of the document). Reference to the carpark is made and states:
The proposed development seeks to maximise the development potential of the site at a cost of providing a generous public benefit in the form of 84 on-site public car parking spaces, dedicated to Council.
48Further comments are made at Folio 63 (p44 of the SEE):
The public benefit that was previously accepted by Council when the Master Plan was approved in 2004 was the provision of 84 on-site car parking spaces to be dedicated to Council for use by the general public. Not affordable housing. The provision of public car parking was considered to be a public benefit for Council as there is still a large shortfall in public car parking within the town centre. This lack of supply has caused a 'creep' factor into surrounding residential streets, which is not a desirable planning outcome.
49It is also a matter that was included as part of the final SEPP1 objection to the FSR controls. That objection, whilst addressing the additional floor space within the building, also referenced the additional building height permitted under the DCP due to the public benefit component. The following is an extract from that objection taken from Folios 160 and 161 of Exhibit 2:
The applicant had included as part of the design a public benefit in the form of two levels of basement public parking spaces being a total of 96 spaces which have been identified with in a stratum allotment which will be capable of transfer to Council upon completion of the development at no cost. In addition, the development has been designed to accommodate a pedestrian thoroughfare to connect to Drakes Lane along the southern boundary which will also be provided to council at no cost.
The additional residential storeys of the proposed development have been included in the design to offset the cost associated with the provision of the public benefit, and in proposing the additional storeys so to the gross floor area of the development has exceeded the maximum FSR.
50 Despite the parties' agreement, it is still appropriate for the Court to be satisfied that conditions A(2), (3) and (4) are validly imposed. Section 80A of the Act provides the power to impose conditions and relevant subsections are:
80A(1)A condition of development consent may be imposed if:
(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or
(g) it modifies details of the development the subject of the development application, or
(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)-(9) of this section or section 94, 94A, 94EF or 94F.
51Section 79C of the Act lists the matters that are to be taken into consideration by a consent authority in determining a development application. Those relevant considerations are:
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(iii) any development control plan, and
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(e) the public interest.
52Craig J in Cavassini Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 provides guidance where at [26] he says:
In my opinion full effect can be given both to the statutory provision and to the Newbury tests if subsection (1)(a) of s 80A is considered as if it read:
"A condition of development consent may be imposed if it fairly and reasonably relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent."
Thus, the condition under challenge must be shown to be both fair and reasonable as it relates to a matter identified in s 79C(1). It must also be shown to be "of relevance" to the development the subject of the consent.
53Having regard to the evidence before me and the council's planning controls, particularly the DCP, I am satisfied that the conditions that require the construction and dedication of the carpark as a public carpark are matters that wholly relate to the provisions of the LEP and DCP and are in the public interest. They reflect an essential element of the development application and are therefore of relevance to the development the subject of the consent. They ensure the provision of the public benefit contemplated in the DCP. It is apparent that the applicant and the development will be benefited by the public amenity provided due to the additional two storeys allowed by the consent. For these reasons, I am satisfied that the conditions have been validly imposed in accordance with s 80A.
54Similar consideration as to the reasonableness of the contributions required in condition C(11) is also required i.e. whether it is reasonable in the circumstances of the case.
55The works and facilities to be provided utilising funds collected through conditions C(11) are local roads, public transport facilities, open space, recreation and community facilities and a plan preparation and administration charge. No contribution for local carparking facilities was sought and this is a correct application of the s 94 Plan as all parking needs for the development is provided on the site.
56In accordance with Mr Mackay's evidence, the terms of the s 94 Plan and the information provided within the SEE submitted with the development application, the carpark to be funded by contributions collected under that plan is not to address the current parking shortfall, it is to provide for the parking where non-residential development within the Town Centre is unable to provide car parking on site. I do not accept the evidence of Mr Fletcher that the provision of the carpark within the development is a "works-on-kind". That is because it is not a work contemplated by the plan and is to be provided to address an existing situation, not one that is the result of future development. Nor do I accept that its provision would delay or avoid the need to construct the local carpark contemplated under the s 94 Plan.
57The carpark to be built applying the contributions collected would be required where development, the subject of future development applications to the council, does not provide for the parking needs of the non-residential floorspace within those developments. Whilst the work could be an 'in-kind' work as contemplated in clause 2.4.3 of the DCP as an 'equivalent work', I am not satisfied that this is the case. There will still be the need to provide the public benefit carpark the subject of these proceedings to address the current parking shortfall and the future carpark proposed in the s 94 Plan.
58The history of the development application is important, and in particular, the offer of developer to provide a public benefit in the form of the public car park to gain an extra two levels within the two tower buildings as a bonus offered by the DCP. The Council and the JRPP have deemed the ultimate built form acceptable with a SEPP 1 objection upheld in relation to the FSR. Having concluded the development is appropriate, consent had been granted, including a condition requiring the dedication of the public car park.
59Whether that car park provides for 84 or 99 spaces is not a matter that I consider is particularly relevant in the circumstances of the case. I accept the advice of Mr Jackson that the Council did not require any more than 84 spaces, and that it would be open for the applicant to apply to the Council to modify the development consent in a manner that would provide for the separation of the 84 spaces from the remainder of residential/commercial parking spaces. It is apparent from the evidence provided on behalf of the applicant and by the Council officer that an alternate design of basement level 2 and 3 would be required. This is not a matter in contention in the proceedings however, it does provide guidance to the parties.
60What is important is that the dedication of the public benefit has always been a critical element of the development application. Having found that condition A(2) has been validly imposed under section 80A(1)(a) of the Act and it is clear that the developer has chosen to take the advantage of the additional two storeys contemplated in the DCP and elected to construct the public car park, I conclude that there is no relationship between the dedication of the carpark and the payment of the s 94 contributions. Both are necessary and both are reasonable.
61Mr Ayling submitted that the provisions of s 94(6)(a) only apply to the retrospective provision of public benefits i.e. a developer would have, at some previous time, provided those benefits. On that basis, as the carpark has not been provided, he submits the provisions would exclude the Court from taking into consideration the public benefit proposed but not provided. Even if that is the case, I am satisfied that the two conditions are independent and that there is no reason to offset the costs associated with the construction and dedication of the public benefit carpark against the s 94 contributions. I find that the two matters are separate and discrete. Both conditions have been properly applied and are reasonable in the circumstances of the case.
62It is not the case that the council is attempting to have the applicant provide a work that is identified in its s 94 Plan as a public benefit. The carpark that is to be dedicated to the council in accordance with the consent is not envisaged by that plan and will, according to Mr Mackay's evidence and the view of the applicant in the development application, provide a facility that could not be provided through the application of s 94. I agree. That is because it will be catering for an existing situation, not one that is the result of the demand of the proposed development.
63Mr Ayling referred me to the decision of Dixon C in North Western Surveys Pty Limited v Penrith City Council [2012] NSWLEC 1017 and submitted that if the credit was allowed as proposed by the applicant, that would cover the costs of providing carparking in the Ashfield Town Centre and accordingly, it would be in the Court's discretion and would be reasonable to recognise the costs to the applicant in providing the public benefit and offset those costs against the s 94 contribution.
64I distinguish the circumstances of this case to that in North Western as the works to be constructed and dedicated in this case are not works that are included in the council's contribution plan. That was not the case in North Western, those circumstances relating to the cap on contributions imposed by the State Government and the council attempting to deliver those works in an alternate manner i.e. as a condition imposed under s 80A. For the reasons provided above, the public carpark is not work contemplated in the s 94 Plan, nor is it "equivalent". I also note that case is the subject of legal review under the provisions of s 56A of the Land and Environment Court Act 1979.
65The cost of construction of the public benefit is a matter that will ultimately be a decision for the applicant. Whilst the evidence in these proceedings suggests that it may not be the best financial outcome in terms of profit to proceed with the development as approved, that is a matter for the applicant. That carpark has always been an integral part of the application for which consent has been granted. I do not consider that it is severable from that consent. The approved development will also create a demand for additional public facilities and services and the cost of providing them should be met by the applicant.
66In view of the above findings, it is appropriate that condition C(11) be modified and the amount of contribution reduced to reflect an allowance of the existing site development. The payment of the reduced amount and the provision of the public benefit in the form of the public carpark as proposed by the applicant are essential elements of the application and should not be waived. Accordingly, Condition C(11) should be retained with a reduced contribution.