TC (Tallwoods) Pty Limited v Camden Council

Land and Environment Court (NSW)|2020-02-22

The Applicant's contentions

The Court listed the matter for directions on 22 December 2020. Directions were made for the filing of contentions by the Applicant and a reply by the Council. This is a case where the usual directions are not adequate to enable the parties to properly articulate their respective cases, and in particular the Applicant needed to identify the legal framework which justifies the relief it seeks. Hence the directions were made.
In its Further Statement of Facts and Contentions (FSOFC) the Applicant set out its essential propositions: "(a) Pursuant to section 7.13(3) of the Environmental Planning and Assessment Act (Act) the Court is empowered to disallow or amend a condition imposed under s 7.11 of Act if it is unreasonable in the particular circumstances of the case even if the condition was determined in accordance with the relevant contributions plan. (b) The application of the Contributions Plan is unreasonable in circumstances where the Council's conduct delayed the determination of DA 2019/947/1 (Development Application) despite the Development Application being capable of determination prior to 1 July 2020. (c) The principle of 'unreasonableness' is set out in Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLC 188 and affirmed in Beaini Projects Pty Ltd v Cumberland Council [2019] NSWLEC 1547 and Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006. The cases of Colonial, Beani and Intrapak require the element of 'unreasonableness' to arise from the application of the Contributions Plan and the monetary contributions only and not from some other burden imposed by the development consent unrelated to the Contributions Plan. (d) The basis of the Applicant's claim is founded in the imposition of the Contributions Plan to the Development Application and no other aspect of the development consent. The unreasonableness arises from the contribution amounts imposed by the Contributions Plan, namely, the imposition of contribution amounts of $66,175.00 per lot in circumstances where the Council delayed the determination of the Development Application when the Development Application was capable of being determined prior to 1 July 2020 when contribution amounts were capped at $45,000 per lot."

The Council's reply

The Council responded to what I have called the Applicant's essential propositions at [41] in the following manner (paraphrasing): "(a) The Council agrees. (b) The Council denies and says that the Court has no jurisdiction under 7.13(3) of the EP&A Act to amend Condition 5.0(13) on the basis set out in the paragraph or on any basis set out by the Applicant. (c) The Council generally agrees subject to what is said in (d). (d) The Council denies (d) and says that: "i A proper reading of the cases referred to in paragraph (c) leads to the conclusion that the power in s 7.13(3) of the EP&A Act only arises where the unreasonableness arises from the application of the contributions plan to the development in question and not for some extraneous reason; ii In the present case, even if (which is denied) the Council's alleged delay resulted in the determination of the application after July 1 2020, it was not the operation of the contributions plan that resulted in the increased contributions being payable, but rather, the operation of the Environmental Planning and Assessment (Local Infrastructure Contributions) Amendment Direction 2017. The relevant contributions plan did not change between the date on which the development application was lodged and the determined; iii The Applicant does not allege any unreasonableness in the operation of the contributions plan insofar as it applies to the subject development or to the Site."
In relation to the Applicant's numbered Contentions the Council simply denied Contentions 1-4 and 8, and, not expressly but by implication denied Contention 9.

Facts and evidence

The entire history of the DA, including copies of all documents (some duplicated) were tendered occupying some 2147 pages in three large ring binder folders. Needless to say I shall not refer to all of those documents. The Applicant prepared a chronology which was intended to be, and accepted by the Council as such, a simple uncoloured recitation of events.
In addition to the documentary evidence, statements or affidavits and oral evidence was given in the Applicant's case by:

Raymond Nolan, the principal of the Applicant.
Matthew Bressa, a Director of Group Development Services (GDS) a company engaged to provide planning services to the Applicant and to prepare and prosecute the DA.
Clare Butterfield, a town planner employed by GDS, who had carriage on behalf of GDS of the Applicant's DA.

For the Council evidence was given by:

David Rowley, Senior Town Planner of the Council
Ben Richards, Coordinator Contributions Planning of the Council
Jamie Erken, Manager Statutory Planning at the Council

Although it is lengthy, I will first set out the Applicant's chronology, with some minor editing and omitting events which are not essential to its case. There are no real material differences between the parties as to the events set out in the chronology and the events are supported by the documentary evidence. I will then summarise the written and oral evidence from the witnesses.
The written and oral evidence of the factual matters was largely uncontested, but for differing recollections of the conversations between Mr Nolan and Mr Erken in early July 2020.
Mr Raymond Nolan affirmed an affidavit of 8 February 2021. He is the director of the Applicant. He engaged the services of GDS to assist in and act for the proponent for the DA. On 16 December 2019 he instructed GDS to lodge the DA. Without being specific Mr Nolan was aware of the potential for the Ministerial cap to be lifted and contributions increased if a development consent was granted after 1 July 2020.
On 30 June 2020 Mr Nolan sent an email to the Council's planning manager expressing his dissatisfaction with the fact that the DA had not been determined largely he said due to a lack of resources. His communication indicated that if the contributions were at the higher rate then he would be at a market disadvantage and "would take this matter to Court".
Mr Nolan deposed that on or around 2 July 2020 he received a telephone call from the Council's Statutory Planning Manager, Jamie Erken. Mr Nolan says that Mr Erken said to Mr Nolan words to the effect: "Your consent will be dated 30 June 2020. It might take me a week to resolve the other engineering issues with Council's engineering officers before we can issue the consent but your consent will be dated 30 June 2020."
In cross-examination, an alternate version of this conversation was put to Mr Nolan, the relevant exchange as follows: "(Hall SC) Q. What I suggest to you is that Mr Erken in that conversation did not say to you your consent will be dated 30 June 2020? A. In actual fact he did. Q. What he said to you, I suggest, was that if it was the case that the information already received by council meant that they could be satisfied before the 30 June 2020 that the application was in order for approval, he would investigate whether it could be given that date? A. No, that's not correct. Q. And what he said to you was that he would look into the question of whether or not the uncapped 7.11 contributions would apply from that date? A. No, that's not what he said. Q. And he said that he would check the status of the DA to confirm whether it had been approved or was in the process of approval? A. That's not what he said. Q. What he said to you in that conversation was always conditioned wasn't it on at least two factors, the first being that council was satisfied before the 30 June that all matters were in order? He said that didn't he? A. No. Q. Secondly, on his investigating whether it was possible for council to retain that date if the formal issuing of the consent was after 30 June? A. That's not what he said. Q. He never gave you any direct assurance, did he, that the document would be backdated in any way? A. What he told me was we would get a consent dated 30 June. He had some engineering staffing issues to sort out and it would take him approximately a week, and I took the man at his word. (Tcpt 19 February 2021 pp 55(28) - 56(9))
Later in his evidence Mr Nolan was taken by the Court back to this conversation. The following exchange occurred: ACTING COMMISSIONER Q. Mr Nolan, when you were asked questions about - do you recall being asked some questions about paragraph 9 of the affidavit, the first conversation with Mr Erken‑‑ A. Yes, yes, Commissioner. Q. ‑‑at around 2 July? A. Yep.. Q. In one of the answers you gave you said that Mr Erken said there were some engineering staffing issues. A. Correct. Q. The word "staffing" doesn't appear in paragraph 9 of your affidavit. A. Correct. Well, maybe it should, yeah. Q. Could you just tell us again exactly what - to the best of your recollection‑‑ A. Yep. ….. Q. The best you can do with these words. A. His words were, "You will be issued a consent dated 30 June." Q. Did he say anything else? A. He said, "I have - I - I" - "It will take me a week to organise the - the - the engineering - the engineering staffing" - what was it - so the staffing resources - it wasn't staffing issues, it was staffing resources, right. He said, "It will take me a week." He said, "I will call you in a week" and I said, "That's fine, I'll take you at your word." (Tcpt 19 February 2021 pp 59(32) - 61(8))
Mr Nolan deposed that on 8 July 2020 he received a further telephone call from Mr Erken. He says that Mr Erken said to him: "Mr Nolan, this is a call I diidnt want to make. Council is unable to issue the consent dated at 30 June as the council officers neglected to refer the application to the RFS and Department of Water conservation. Council cannot legally issue a consent without the referral to those agencies."
Mr Nolan deposed that he recalled the conversation vividly as it had a profound and devastating impact on him.
In cross-examination, once again an alternate version of the conversation was put to him. The relevant exchange was as follows: (Hall SC) Q. That's your best recollection as to what was said during that conversation? A. That's exactly what was said, with the exception of water conservation. It might have been natural resources or whatever but it's the same department. Q. And with the exception of the words, "Dated at 30 June"? A. No. No, that's what he said. Q. Those words were not spoken by Mr Erken on that occasion were they? A. Yeah, absolutely they were, 100%. Q. What Mr Erken had said to you, wasn't it, was that the information that had been submitted before 1 July was not enough to approve the DA? A. No, that's not what Mr Erken said. Q. He told you that there were outstanding engineering referrals and external referrals including the RFS and natural resources people? A. What Mr Erken said is here in my statement. ACTING COMMISSIONER Q. Is that all he said in that conversation? A. That's exactly what he said. Q. Is that all he said in that conversation? A. Yes, correct. HALL ….. Q. Yes, thank you. Well, I'm suggesting to you that Mr Erken did not say to you that the reason why council could not issue the approval with the 30 June date was because of the delay in notifying RFS or Water Conservation? A. What Mr Erken said is exactly what's in paragraph 13 here. Q. You're mistaken about that aren't you because Mr Erken by this stage had already told you that it could not be issued with the 30 June date? He was now informing you of further matters that were outstanding? A. No. He basically said exactly what was in item 13 here. Q. You know that it's a matter of fact don't you that it was not the late referral to RFS or the Department of Water Conservation that caused the delay in the issuing of the development consent? A. All I can say to that is you ought to be a blind man if you cannot see that council delayed this from the very beginning. Q. You are now, as we were then, aware aren't you that there were other matters outstanding on 7 or 8 July 2020 that were also operating to prevent the consent being issued? A. There was nothing outstanding that precluded the issue of a consent. Q. Those matters remained outstanding for some weeks thereafter didn't they? A. Those particular items written here in item 13 that is why the council could not issue a consent, because legally they could not do so. Q. But that is not something that Mr Erken said to you on that occasion? A. That's exactly what he said, man. It's written down here and he (sic) signed it. (Tcpt 19 February 2021 pp 56(20) - 57(42))
Mr Matthew Bressa is a director of GDS and affirmed an affidavit on 9 February 2021. He deposed that he was responsible for overseeing the DA (within GDS) and assisting Clare Butterfield in providing information to the Council.
Mr Bressa deposed that on about 2 July he telephoned Stephen Pratt an officer of the Council. Mr Pratt enquired about comments on the engineering plans which had recently been submitted by GDS and said: "I believe the engineering items could be conditioned in the development application consent."
Mr Pratt responded: "Yes I understand that, however I need to get comment back from my engineering department."
Mr Bressa was not required for cross-examination and therefore no alternate version of that conversation was suggested by the Council.
Ms Clare Butterfield is a town planner employed by GDS and had carriage of the DA within GDS and on behalf of the Applicant. Ms Butterfield was party to most of the communications with the Council over the course of the assessment and determination of the DA. She was responsible for the most part for the communications on behalf of the Applicant set out in the chronology above at [49].
Some of Ms Butterfield's written and oral evidence concerned a claim that the Council in other consents applied a condition requiring a lesser contribution than should have been the case because of delay in issuing a development consent and the Applicant should be treated consistently with those earlier consents. As it transpired the facts did not support that proposition although at the time the claim was made Ms Butterfield believed the facts did support the claim. As the claim in these proceedings was not ultimately pressed, I will not set out the evidence on that subject matter.
In her affidavit affirmed 8 February 2021, Ms Butterfield deposed to many of the events in the chronology which I will not repeat, including reference to documents. Her evidence did include the following, largely responsive to observations or criticisms in the material from Council witnesses: "[17] [GDS] provided information to the Respondent as soon as it was on hand. For example, on 8 April and 17 April 2020 I provided contamination and heritage information in response to the RFI dated 16 April 2020 separately and prior to providing engineering information as we received the heritage and contamination assessment documents first. We forwarded these assessment documents to the Respondent as soon as possible because they could be reviewed and assessed by the Respondent independent of any forthcoming engineering information. [GDS] took this approach in order [to] resolve matters as fast as possible and to facilitate the determination process of the Development Application. [18] …. I verily believe that the Development Application was capable of public notification on 21 April 2020. The Development Application was not publicly exhibited until 14 July 2020. I verily believe the delay in publicly exhibiting the Development Application was a contributing factor for the Development Application being determined after 1 July 2020. [19] .. When the Development Application was lodged by [GDS] on 16 December 2019, it was nominated for integrated referral to the NSW Rural Fire Service and Natural Resources Access Regulator.. [26] …The information provided by the Applicant was adequate. Each time a detailed response was provided, often noting suggestions of conditions of consent or evidence of precedence (sic) set by other development applications approved by the Respondent. … [48] On 26 June 2020, due to the Respondent's lack of response with regard to the engineering conditions and in an effort to resolve matters, I provided the Respondent with amended engineering plans to reflect the proposed conditions…Had the Respondent provided comment on the proposed engineering conditions earlier, such as when it provided comments to the subdivision plans on 18 June 2020, the engineering plans would have been provided and resolved earlier. [49] The engineering conditions proposed in response to the RFI dated 16 June 2020 … were incorporated in the Consent. …. [53] The final amendments to plans were not so significant that they would have altered the outcome of the consent. The remainder of the Consent could have been drafted well before 26 June 2020 based on the information at hand with the assumption that the final requested information would be shown in revised plans. The Consent could have been finalised when the information was submitted on 26 June 2020. It was made very clear and repeatedly through the assessment process that the intention for June 30 2020 approval was necessary."
In her cross-examination Ms Butterfield was taken to some of the matters which arose during the assessment process: "Q. Now, changing subject Ms Butterfield, one matter that was the cause of delay and the cause of work for you in the course of prosecuting the development application was the question of the residential density that would be yielded by the application if granted, wasn't it? A. Correct. Q. And that first arose in about April of 2020 as a matter in question? A. Yes. I believe it was part of RFI 2. Q. And is this correct, that initially there was a debate between you and Mr Rowley, the council officer, as to what the proper method of calculating the residency would be - the residential density would be? A. Correct. Q. That was a debate focussed around, wasn't it, the question of whether you can take into account road areas as developable area for the purpose of the calculation? A. Correct. Q. And Mr Rowley pointed out to you, did he not, that there are different and not identically - not identical definitions of developable area for different purposes in the council documents? A. Yes. Correct. He did. It was still a point of discussion, because I still disagree with his interpretation of one of those definitions when compared to the other. Q. But when we get to the middle of May of 2020, you have conceded, have you not, that the proper calculation of residential density would be about 24 dwellings per hectare? A. Not that the proper calculation would be that. That it got to a point where we had - I think there was about five emails going back and forth arguing the same point, noting that we were working to a time of approval that our client was pushing, and whether or not we had the right information about the uncapping or not. We were still being on the safe side and working way towards the end of June approval. Therefore, we conceded to that point and amended the plan of subdivision to be more in line with Mr Rowley's interpretation of the definition, although it wasn't agreeing on the definition itself. Q. I'd like to you through that process in a little more detail, because I'm going to suggest to you that you've slightly rolled that up and that you've taken a number of steps as one in that discussion. What I suggest to you is that between the raising of this issue by Mr Rowley's letter of 16 April and about 22 May, you were contending for a calculation of residential density that would have kept you under 24 and in a particular band in the DCP A. Correct. ….. Q. What I was suggesting and I think you were agreeing with, was that up until this date, your response, on behalf of your clients, had been to contest the calculation of density and to suggest that it ought to be calculated again, taking the full width of the roads into account, is that right? A. Correct. Q. That here in second big paragraph, the fourth paragraph strictly which begins, "It is acknowledged that", for the first time, on behalf of your clients, accept the calculation that's been done by the council, which is the half-road calculation? A. Yes, I guess acknowledging his interpretation of the definition, therefore, a density of approximately 24 dwellings per hectare. Q. Just so that the Commissioner isn't misled, we agree don't we that the consequence of that is that it determines which kind of density you fall into for the purposes of the - rather than development control plan, and that has certain consequences about what planning criteria you'd have to meet? A. It's more so to do with demonstrating that it's consistent with a certain character. Q. Thank you, and that character is determined - you don't need to go there but I'll suggest to you that the DCP influences what character you have to comply with? A. Yes. Q. What I suggest to you is that here on 22 May you engage in a new strategy for dealing with the density issue, which is to seek to persuade the council that notwithstanding the fact that it's about 24 dwellings per hectare, you nonetheless can comply with the requirements for the character of the district and get an exception effectively applied so that the DCP does not apply with full force? A. Not that the DPP doesn't apply. It was more to do with the fact that we demonstrated consistency with whether - whether we interpreted my definition or their definition we were consistent with the applicable character on that density bend. Q. Is this correct, that between the 22 May 2020 and 17 June 2020 you approached the matter on this basis: that's to say to persuade the council that, notwithstanding the existing density of the 46 lot yield, you could still comply with the relevant requirements? A. Correct, yes. Q. …... 17 June 2020 is the first occasion isn't it when you communicate to the council that you will resolve this question of dwelling density by an amendment to the development sought to be approved? A. Yes. On this date we - we conceded to the yield. However, the basis of the previous emails was that Mr Rowley was asking for justification on our plan and not in particular an amendment to the plan. So the justification had been provided time and time again, and then we got to a point where time was running out, we'll just change the plan. Q. So we can summarise it this way can't we, there were three phases in your clients' response to the density issue, the first went from 16 April to 22 May and it was a debate about the proper calculation of the area? The second went from 22 May to 17 June, and that was what you've just described. That was you seeking to justify the density and reiterating the points you were making in support of that, but unsuccessful in the sense that Mr Rowley wouldn't accept the justification you were putting? A. Yes. Q. The third phase is the one that comes in on 17 June, after which you changed that density by reducing the number of lots? A. Yes. Q. Can I put this to you as an experienced planner, that's a very typical sequence isn't it of seeking to negotiate you way past a planning objection that might be raised by a council on any subdivision DA? A. This particular issue was inconsistent to various other councils and their interpretation of the definition. That's why we really pushed the argument. We didn't - we didn't agree at the end. However, our experience with all of the councils was similar to our interpretation, which is why we pushed it in the first place, because we believe that our interpretation was what should be adopted. Q. What I put to you was this: nothing out of the ordinary about this, in your experience. Council raises and issue. If you disagree with it you try to persuade them they're wrong. If you can't do that, you try to overcome it by arguments. If you can't do that, you might be reduced to making an amendment to your application. A. Yes, but the delayed time of this argument really - it was drawn out. It was unusual to be drawn out so many times. There was all the way from the time the issue was raised in April to the time where we kind of conceded in June there was lack of response to our request is this okay, do you agree, can we get some clarification? Then we got to a point where time was running out, so we just changed it. However, if he had come back in the first instance and said your justification is not suitable, just amend the plan, we would have done so back then. ACTING COMMISSIONER Q. You wouldn't have attempted to persuade them they were wrong? A. Given the - given the timing nature of the - of the application, I guess we would have had to have a discussion with the client and determined whether - when it was time to make the change. HALL Q. But of course it would be good planning practice from your point of view wouldn't it to seek to deliver the development that your clients' sought, the development they wanted and the maximum yield if you could do so? A. If we could do so. However, there was more than that element at play. Noted, there was the contributions coming in. There was all sorts of other timings that the client was working to that the sole focus wasn't just on the yield. However, that is the preferred outcome. We had to juggle a whole bunch of priorities at that stage and I guess one had to be let go." (Tcpt 22 February 2021 pp 40(25) - 44(17))
The Council also explored with Ms Butterfield whether the engineering issues were a cause of delay in the grant of development consent: "Q. … But from April at least until August, you were corresponding with council about engineering issues, weren't you? A. Yes. Q. And you made attempts to address those issues, did you not, on about 26 June 2020, by providing the council with revised drawings, revised engineering drawings of the plan intended to address the issues that were then alive. A. That was not our first attempt to resolve the engineering issues. Q. I beg your pardon, I wasn't suggesting that. I was suggesting one of the attempts you made was made on 26 June, within the form of issuing a series of new drawings with certain revisions to the engineering aspects of the project, in an attempt to overcome those concerns. A. That was the result of lack of response and the fact that we had suggested conditions multiple times and followed up whether or not they were suitable, without a response from counsel as to whether they were suitable. Yes, we amended the plans in line with those recommendations. But had council responded to one of our earlier inquiries, we could have amended the plans well and truly earlier than 26 June. …. Q. And the engineering issues that you and your colleagues sought to address by the 26 June reissue of drawings continued to be debated after 1 July, didn't they? A. No. Q. Well, surely they did. Surely you continued to correspond with council, you personally and others on your client's behalf, about engineering issues well after that date, did you not? A. We corresponded relating to engineering issues, however, they weren't explicitly the same issues that were referred to in June. Q. I see, thank you. So, a new issue arose at that stage, did it not, regarding access roads, in particular an access road that was called Access Road Number 3? A. Access Road Number 3 was raised after we had been notified the application hadn't been referred, and we had some time to discuss certain things. Q. Thank you, but that was an issue that had to be resolved before the consent could be finalised, wasn't it? A. No. The consent was finalised based on the two accesses proposed in June. Q. And some change occurred, did it not, you will have to help me with this because I don't know the facts to put to you. Some change did occur, did it not, in the relationship between this development and neighbouring developments that required you to reconsider the question of road construction? A. Yes, the relationships may have changed, but the consent, how it was issued, is consistent with how it was discussed in June. …..

Q. And you find the document itself on page 1980. And just after the shaded extracts that you have quoted from two of the draft conditions, we see a request introduced by you, don't we, asking council to amend the conditions to allow for alternate public allocated road access, and introducing the idea of a new temporary vehicle access control 3.3.5. Do you see this? A. Yes. Q. And this was the issue that I was seeking to debate with you just a few moments ago. I was suggesting to you that this is an issue that was arising for the first time in August 2020 because of changes it was necessary to introduce to the road planning for the subdivision. A. Not that it was necessary, that, that, yeah, it wasn't necessary for the consent. It was just an extra discussion point, given the time we now had. Q. Right, so, you now have time available to you to debate these issues, and you wanted to get the road arrangements right? A. Not that they were right, it was an alternative approach. Q. Well, you identified, did you not, that there were significant problems with the road arrangement as previously proposed? A. Yes. But it's consistent with what the consent granted. Q. And if you had obtained consent in the terms of the previous proposal, you would not have been able to proceed to completion of the development, would you? A. No, we obtained the consent consistent with the previous proposal. Q. And that is because the change in arrangements that had taken place, necessitated a revisiting of the use of the roads? A. Either this approach or the approach that was originally proposed and the consent is consistent with, are both okay outcomes and can be dealt with. ACTING COMMISSIONER: Sorry, I didn't quite understand that answer. WITNESS: Sorry, so we had a proposed approach up until June, in which‑‑ ACTING COMMISSIONER: In terms of road access and bushfire access? WITNESS: Yes, yes. Two roads that relied on two particular lots. That approach was consistent all the way through to June, and is what is reflected in the consent. This third, or this second option that was discussed in August, never actually went anywhere, it was just raised. HALL Q. You had a conversation about that, didn't you, with Mr Rowley, I think it was, a few days later? A. Yes. Q. And in the same volume, the big volume you have got in front of you, if you turn to page 1990 you should, I hope, find an email of Mr Rowley to you of 10 August 2020. You see that? A. Yes. … Q. And firstly, I'll ask you, is that a reasonably accurate reflection of the conversation that you had had, that he introduces with the words "as discussed"? A. Yes, he raised some reasons why it might not be appropriate. Q. And this is, again, I'll use this phrase but disagree with it if you wish to, this is a typical example, isn't it, of the type of interaction that you have with council planning officers every day of your work, seeking to negotiate or debate the most appropriate form of approval that you could obtain for your clients? A. Yes.

Q. And it's a routine, effectively, a routine debate for you to seek to amend the draft conditions that were applied to this approval to make them more suitable, if you can? A. I guess it's not considered routine, we are not always given draft conditions, but it's something that we, the matters involved and the matters that we generally discussed.

Q. That would arise in many similar subdivisions that you have handled on behalf of various clients? A. Yeah. Q. And it was a matter that needed to be resolved before this final consent could issue, wasn't it? A. No. Q. Surely it had to be resolved, because you had to know, did you not, which of the two alternative conditions was to be applied to the consent? A. Our client could deal with either of the options. Q. But you needed to know before the consent issued, you wanted to be aware of which of these two alternatives was the one that would be adopted? A. No, not necessarily we, we were happy with one through to‑‑ Q. I beg your pardon, please continue. A. We were happy with one through until June, and that's the one that was adopted in the consent, and our client is happy to deal with that one." (Tcpt, 19 February 2021, pp 44(32) - 48(14))

Mr David Rowley, a Senior Town Planner at the Council, gave a written statement and oral evidence. Mr Rowley was responsible for the processing and consideration (along with other officers of the Council) of the DA. He referred to colleagues in other disciplines within Council for comment where appropriate and was responsible for co-ordinating their responses and from time to time communicating them to the Applicant.
The DA was lodged on 16 December 2019 and allocated to Mr Rowley on 18 December 2019. Mr Rowley said in his statement that prior to Christmas 2019 17 development applications and one Class 1 appeal were assigned to him for review, eight of which had been lodged in November or December. His workload also included two pre-DA requests, assisting the compliance division with a Class 4 matter and respond to general enquiries. This was a typical workload he said.
Mr Rowley took 5 days of leave over the Christmas period and a further 4 days in late January 2020. He began reviewing the DA on 5 February 2020 and completed his preliminary review on 14 February 2020. At about that time he sent out internal referrals to colleagues in other disciplines and on 26 February 2020 sent to the Applicant the first request for information (RFI 1). He said that RFI 2 was sent to the Applicant two days after receiving the last internal response from colleagues. He says he responded promptly to requests from the Applicant, sometimes requiring internal advice before he could do so and denies any delay in making requests for information.
In his statement Mr Rowley says that the reasons for determining the DA after 1 July2020 were not solely attributable to the delay of the Council as alleged by the Applicant. In particular Mr Rowley refers to the provision of amended engineering plans by the Applicant on 26 June 2020 as a reason as those plans were still being assessed on 1 July 2020. Mr Rowley acknowledged that public exhibition of the DA could have occurred from 21 April 2020, when it was apparent that because of the earthworks related to contamination the exhibition period would be 28 days rather than the standard 14 days. Again, he said that the failure to exhibit prior to 30 June 2020 was not the reason the DA could not be determined prior to 1 July 2020, but it was because of the provision of the amended engineering plans on 26 June 2020.
Mr Rowley said that he received advice from Council's Land Development Engineer that the extant engineering issues could be dealt with by deferred commencement conditions, a draft of which he received on 6 July 2020.
In cross-examination Mr Rowley agreed that his workload through 2020 was typical of his usual workload, other than a Class 1 appeal and the Class 4 matter he referred to in his statement. He said that Council has no published time frames for assessment of development applications, but that time taken by Council planners would be part of their individual performance review by the Council.
Mr Rowley agreed he was aware of the document Development Assessment, Best Practice Guidelines by NSW Department of Planning and Environment March 2017. The following exchange occurred: "(Gallaso SC) Q. Do you see over the page, page 13, "Assessment, 6 to 30 days. Preliminary Assessment. Responsibility, the assessment officers." Now, did you undertake a preliminary assessment within the period of six to 30 days from lodgement? A. Do I have to do a quick calculation in terms of working days or total days? A. With the exception of public holidays and days of leave and weekends, I would estimate that preliminary assessment was approximately 34 days, 38 days perhaps. Q. Sorry, why are you excluding weekends? A. I was - I wasn't clear whether this six to 30 included weekends or not. [Later in his evidence Mr Rowley was shown where in the Guidelines the 6 to 30 days included weekends and public holidays.] Q. See, what I want to suggest to you, Mr Rowley, is that there's an email that the Commissioner has got from the council dated 18 December, recognising the lodgement of the development application. This is page 464‑‑ A. Yep. Q. ‑‑and assigning you to the matter‑‑ A. Correct. Q. ‑‑and the first operative step that you took was not until 14 February the next year in an email that constituted the internal referral of the development application. That's the very next page, page 465. Now, that's almost a two‑month period since lodgement before you could even undertake the internal referral of the development application. Correct? A. That's correct. Q. Mr Rowley, you accept it took almost two months for the development application to be referred to other officers within the council. Correct? A. I accept that. … Q. Why did you wait until 14 February 2020 to undertake the simple task of referring the DA to other officers within the council? A. Without reference to my diary at that time, I would speculate that I was working on other applications. I was working on other pre‑DAs. I was working on other court matters, and thus, I didn't have the opportunity to attend to this application prior to that time. Q. Can you go to page 24 of exhibit G, that Development Assessment, Best Practice Guidelines. It doesn't have a number on the bottom of the page, but if you find 23, go to the next one. Do you see in the right‑hand column, Procedural Time Frames, "Internal referrals should be completed and comments provided to the assessing planner within 10 days of being allocated the DA"? Do you see that? A. I see that. Q. Now, are you aware of whether these best practice guidelines are distributed to other officers at the council, or should we not ask all of them? A. I can't - like, it hasn't been distributed officially, as far as I'm aware. Q. It's the case, is it not, that internal referrals had not been completed and comments provided to you as the assessing planner, as a general proposition in respect of this DA, within 10 days of being allocated the DA, were they? A. No, it was not the case. Q. Correct? A. Correct. Q. You don't, in your statement of evidence, give any clue as to why there was a delay in the response from the persons to whom you referred the matter in their referral response, do you? You had no idea why it took them so long? A. There's nothing in my statement to that effect, no. Q. It's the case though, is it not, that if a referral officer delays in coming back to you, then you can't action what they do, self‑evidently, until they come back to you? A. I follow you, yes. Q. So to a large extent, you were dependent upon responses from referral officers before you could take any action in relation to matters that they respond to. Correct? A. Yes." (Tcpt 19 February 2021, pp 75(36) - 78(11))
In his oral evidence Mr Rowley was asked about the notification and referral process which did not occur until after 1 July 2020: "Q. So, from April 2020, the development application could have been notified. Correct? A. Correct, I've noted that in‑‑ Q. But it wasn't notified until July 2020. Correct? A. That's correct. Q. You know that the development application could never have been approved until it had been notified. Correct? A. I know that, yes. Q. You also knew from the outset, that the development application was for integrated development, didn't you? A. From the actual form, yes. Q. They'd ticked the box, Integrated Development, and in ticking the box, Integrated Development, fees were charged for the referral, were they not? A. I believe standard practice is that the fees are charged. I did not prepare the fee quote so I have not‑‑ Q. Are you aware of the obligations of the council, in circumstances of integrated development, in terms of the time period for referral to referral bodies? A. Yes. Q. You understand what that period is? A. Yes. Q. Do you understand it's the period of 14 days from the lodgement of the development application? A. Yes. Q. You accept, do you not, that that was not done in accordance with the obligation under the Environmental Planning and Assessment regulation? A. I accept that.

Q. You accept, do you not, that the referral did not occur to Rural Fire Service and NRAR until 15 July 2020? A. I believe the referral was generated at a date prior, however the fees were not paid until that date, no, but I believe‑‑ Q. The fees were not paid by that date. A. So, I‑‑ Q. What do you mean by the fees were not paid? A. With - so, with the introduction of the planning portal to Camden Council in 2020, concurrents and referrals are now processed through an online system rather than the traditional method of mailing information with a cheque attached. Through that system, a request is generated for an authority to review an application. The authority then invoices the applicant. Q. But the invoice doesn't get generated until the request is made by the council. Correct? A. I believe - correct. I believe the request was made on 8 July, from memory. Q. 8 July was already after the date when the cap was lifted in relation to contributions. Correct? A. That's correct. ….. Q. But you're aware, are you not, that there's an obligation to have referred this DA 14 days after it was lodged? A. I am aware of that. Q. So are you telling the Commissioner that the council is content to breach the regulation in the event that notification doesn't occur because the two processes are administratively linked? A. No, council is not content. Q. Sorry? A. No, I'm not saying the council is content. ….. Q. The contamination issue was resolved in April of 2020, correct? A. Correct. Q. If the two matters [notification and referral to concurrence bodies] travel together and the notification didn't occur until July 2020, are you saying that it wasn't your fault that the request wasn't made until July 2020? A. Of course it was my fault. … Q. May we take it that as with notification, from April 2020 there was no barrier even if paragraph 20 to the correct, to the referral occurring in April 2020 either, was there? A. There was no barrier, no. Q. Is any reason why it took from April 2020 until July for the referral and the notification to occur? A. There was no reason, no." (Tcpt 19 February 2021, pp 81(42) - 84(27))

Mr Jamie Erken, the Council's Manager Statutory Planning made a statement and gave oral evidence. Mr Erken was senior to both Mr Rowley and Mr Pratt. Mr Rowley telephoned Mr Nolan on 1 July 2020 in response to a message left with the Council by Mr Nolan. In his statement Mr Erken says that Mr Nolan told him that the Council had received all necessary information for the DA and that if it was not determined by 1 July 2020 there were financial consequences for Mr Nolan. Mr Erken says that he said to Mr Nolan: "I will investigate the matter, including reviewing the relevant legislation to confirm if the DA would be subject to the uncapped section 7.11 contributions required by the ..Contributions Plan. I will also check the status of the DA to confirm if it has been determined or is in the process of being determined."
Mr Erken said that "we discussed the possibility that if the additional information ...satisfied Council's concerns ... and the DA was in the process of being formally determined, the consent may remain dated at the time of Council's satisfaction." Mr Erken denied that he said the consent would be dated 30 June 2020.
After investigating the matter Mr Erken says he rang Mr Nolan on or around 7 July 2020 and said: "The information submitted prior to 1 July was not enough to approve the DA. There were outstanding engineering referrals and external referrals including NSW RFS and Natural Resources Access, plus notification requirements. Therefore the DA will be subject to the uncapped Section 7.11 contributions…"
In cross-examination Mr Erken was asked a number of questions about his conversation with Mr Nolan on 1 July 2020: "Q. What Mr Nolan says in his affidavit that you said - that the consent will be dated 30 June 2020. See that? A. I do. Q. You deny that? A. That's correct. Q. Do you deny that you said to Mr Nolan that there was a prospect that if the council had been satisfied at 30 June of all of the matters related to the development application, that the consent could be dated 30 June? A. I said I would investigate if there was any opportunity for the development if the ministerial direction required it to be, subject to the uncapped contributions, that that might be avoided. … Q. You deny that you said to Mr Nolan that the consent will be dated 30 June 2020? Do you deny that you said that if the council had all the information by 30 June 2020, and that it was satisfied by 30 June 2020 of all of the matters in the development consent, the consent could be dated 30 June 2020? A. I said I would explore that opportunity. … Q. On 1 July 2020 there was no consent issued, correct? A. Yes, according to council's electronic records. Q. You conveyed to Mr Nolan the prospect that, notwithstanding on 1 July 2020 that there was no consent issued, if the council had been otherwise satisfied of all matters the day before, that there was the prospect that the consent could be dated the 30 June 2020, correct? A. Correct. Q. There was no decision of consent as at 1 July 2020 was there? A. Not in council's electronic records no. Q. So is this case that you would accept that you conveyed to Mr Nolan the prospect that the consent could be backdated? A. I expressed that I would explore - explore that opportunity. Q. If you were satisfied that it could be then you would backdate the consent? A. Well, I guess the point was, if the planner and the engineers had - were completing their assessment on that date, there'd been - and had a level of satisfaction, I would have saw the opportunity that that could be the case, yes." (Tcpt, 19 February 2021, pp 64(2) - 66(19))
Mr Erken was also cross-examined about his recollection of the conversation with Mr Nolan on 7 or 8 July 2020: "Q. He says that you said to him - this is paragraph 13 of his affidavit - that the council is unable to issue the consent, as the council officers neglected to refer the application to the RFS and Department of Water Conservation. You don't deny that part of the conversation do you? A. No, I do not. …. Q. You say in your affidavit that there were outstanding engineering referrals that you referenced in the affidavit‑‑ A. Yes. Q. ‑‑and I want to suggest to you that you didn't raise that at all with Mr Nolan at all did you? A. I did raise that. Q. Did you tell him anything about the engineering officers and their ability to deal with these issues? A. In terms of? Q. In terms of staffing levels? A. No, I did not." (Tcpt, 19 February 2021, pp 68(43) - 69(27))
The Council's Coordinator Contributions Planning, Mr Ben Richards made a statement but was not required to give oral evidence. His evidence went essentially to the question of the Council's consistency of approach. It is unnecessary to set that out because it was a claim ultimately not pressed by the Applicant.

Applicant's submissions

The Applicant made comprehensive submissions in writing and orally and it is not intended as a disservice to summarise the submissions in the following paragraphs.
The essential propositions in the Applicant's case are:

The Council acted unreasonably in failing to grant development consent prior to 1 July 2020.
The condition imposing the higher contributions was unreasonable when, had the Council acted reasonably, the consent would have been granted earlier and the contributions capped at a lower rate.
The unreasonableness arose out of the application of the contributions plan, consistently with the principle in Colonial.
If the Court did not accept that the unreasonableness arose out of the application of the contributions plan, then Colonial (and Intrapak) were wrongly decided/plainly wrong.
The "circumstances of the case" in s 7.13(3) of the EP&A Act were not constrained to the application of the contributions plan and included the unreasonable conduct of the Council complained of here.

The Applicant's principal arguments on the unreasonable conduct of the Council focus on two periods of time in the assessment process. First it says that it was unreasonable that after the DA was lodged on 16 December 2019 and allocated to Mr Rowley on 18 December 2019, the preliminary assessment by Mr Rowley did not commence until 5 February 2020 and complete on 14 February 2020. RFI 1 was not made until 26 February 2020and only sought the provision of documents which were referred to in the SEE but not included in the lodged documents and requested additional contamination testing.
Second the Applicant submits that it was unreasonable that the Applicant having provided the "missing" documents immediately upon request it was not until two months later on 16 April 2020 that RFI 2 was made, the first substantive request for additional information by the Council.
The Applicant notes that the consent was granted on 31 August 2020, some two months after the increased contributions applied, and that had the Council not acted unreasonably in the delay in one or the other or both of the periods, in the ordinary course the consent would have been granted before 1 July 2020.
It was submitted that the unreasonableness arose out of the application of the contributions plan in the following way. The circumstance of the this case, it was said, is that the "contributions plan mandates an unreasonable result because the condition that is struck at a time when it was struck, is unreasonable having regard to the fact that the condition should have been struck at a point in time earlier. It is a contributions condition struck in accordance with the contributions plan, but in the particular circumstances of the striking of the condition, the condition has manifest an unreasonable result because the result ought to have been a result that was the contributions plan but with the cap overlay that should have occurred before 1 July" (Tcpt 22 February 2021 pp 100(43)-101(2)).
Colonial is wrong it was submitted, "because, put simply, it puts a gloss to the statutory text which does not exist" (Applicant's written submissions (AWS) at par 38). It was submitted that Moore AJ (as his Honour then was) adopted an erroneously narrow construction of s 94B(3) [now s 7.13(3)] of the EP&A Act (AWS par 39). Five reasons were put for that submissions.
First, the words of s 7.13(3) do not limit the operation of the notion of "unreasonableness". The assessment of unreasonableness may be undertaken by having regard to any of the particular circumstances of the case (AWS par 53).
Second, the ordinary wide meaning is supported by the explicit statement in s 7.13(3) that the condition may be disallowed or modified "even if it was determined in accordance with the relevant contributions plan".
Third, a power conferred on the Court such as s 7.13(3) is a provision conferring jurisdiction or granting power and it is inappropriate to make implications or impose limitations which are not found in the express words, citing Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; [1994] HCA 54; Weinstock v Beck (2013) 251 CLR 396; [2013] HCA 14 at [55] (AWS par 55).
Fourth, there is no compelling feature of the scope, purpose or context of the EP& Act that requires an implied limitation on the power under s 7.13(3) of the kind described by Moore AJ (AWS par 56).
Fifth, the decision of the Court of Appeal in Rose Consulting does not support the conclusion of Moore AJ (AWS par 57).
The Applicant submitted that s 7.13(3) of the EP&A Act allows a party seeking an amendment to identify circumstances affecting it, or the relevant land, or some aspect of the development, that makes the terms and operation of the condition unreasonable.
In its submissions in reply the Applicant put the delay submission succinctly: "…. the Respondent has advanced no explanation, or has provided evidence through Mr Rowley, as to why: a. It took two months until 14 February 2020 before anything occurred (despite the repeated emails from Ms Butterfield during January/February seeking to follow up); b. That during this period, the application ought [to] have been referred under cl. 66 of the Regulation but was not ("of course it was my fault" was the evidence of Mr Rowley); c. That the first request for information (RFI-1) was not substantive (agreement by Mr Rowley in evidence to this proposition) and that it took until 16 April 2020, four months after lodgement, before any substantive request occurred (noting Mr Rowley's evidence that "it's quite speculative, but I could agree with you there" in terms of the proposition that if you simply pull the consent process back by two months [let alone four] that a consent could have been granted before the end of June)."

Council's submissions

The Council also made comprehensive written and oral submissions. Again, I do not intend to do the submissions a disservice by the summary which follows.
Colonial and Intrapak were correctly decided and, together with the proper understanding of Rose Consulting and the statutory provision, mean that the "unreasonableness" of the Council conduct complained of by the Applicant cannot lawfully lead to the conclusion that the condition imposing the contributions was itself unreasonable.
The approach of the Applicant that "unreasonableness" has a wider meaning, the Council submits: "… ignores (or gives too little weight) to Santow JA's careful analysis of the whole contributions scheme, and his Honour's reliance on the corollary of 'reasonable' in 7.11(2) and (4) with 'unreasonable' in 7.13(3). Statutory language is always to be considered in context, and here the context is a scheme in which the concept of reasonableness is given specific meaning by the requirement that it be a reasonable contribution to the provision of public services. It would be illogical to ignore that context when shortly later the same statute invokes unreasonableness. It also ignores the policy considerations which this Court found persuasive in Intrapak at [162]. There are existing safeguards in the system of plan making and Ministerial supervision. The scheme is designed with care to produce certain results on the basis of public consultation permitting all developers to know what contributions are likely to be required. For each individual developer to be able to challenge the scheme…..would disrupt that and threaten councils' capacity to deliver necessary services." (Council's Written submissions (CWS) at par 15).
The Council submitted that it was unnecessary for the Court to proceed to detailed consideration of the process by which the DA was assessed and approved, because nothing in that process will constitute unreasonableness in the relevant sense (CWS at par 21).
The Council submitted that the failure to place the DA on public exhibition and refer to the concurrence bodies was unfortunate and regrettable but is otherwise irrelevant to the resolution of the case because, it was not causative of the date of consent going past 1 July 2020. The failure to notify was not discovered until after the date had passed (about 8 July 2020).
As to the time taken to process the DA the Council says that it must be considered in context. Camden is home to two growth centres, the level of subdivision and development is high. A typical town planner on staff has roughly 17 development applications on hand at any one time plus potentially other matters such as pre-DA meetings, Class 1 and Class 4 matters. Processing a development application, the Council submitted requires input from various departments of the Council, all of which will have their own workloads and demands. Applications must be considered fairly and in turn, no particular applicant for development consent can expect exclusive assessment or expedited assessment.
The Council further submitted that Councils process applications with the resources they have available, and those resources will vary as staff take holiday leave or other statutory or contractual entitlements, not all of which can be planned.
The DA raised complex issues, the Council submitted, and each had to be considered, reach a position and convey that to the Applicant, wait for its reply and consider its adequacy. Issues such as the permissible density of development and engineering matters were cited as examples of issues which took time to resolve.
Delay, the Council submitted, to constitute unreasonable delay, must be tested against a standard and the only evidence was that of Mr Rowley who said that he "processed the application as I would any other application for residential subdivision and it appeared to me that my colleagues did the same" (CWS par 32). That evidence, unanswered, was fatal to the Applicant's case, the Council submitted (on the assumption that the legal question was answered in favour of the Applicant).

Consideration

It is the case that I have formed the view that at its highest the "unreasonableness" of the Council asserted by the Applicant is not within the proper meaning of "unreasonable" in s 7.13(3) of the EP&A Act and therefore the appeal must fail. It follows that it is strictly unnecessary to determine if on the facts of the case "unreasonableness" is made out.
On the other hand, I have also formed the view that whilst it was distinctly possible that the consent could have been granted before 1 July2020, I have not found that there was unreasonable conduct on the part of the Council. That is a finding which would also lead to the failure of the appeal, making any analysis of the meaning of "unreasonable" unnecessary, including the consideration of the correctness of Colonial and Intrapak.
In fairness to the parties, and to facilitate any further consideration of the case, I will deal with both aspects.

The Nolan/Erken conversations

Each of Mr Nolan, the Applicant's principal, and Mr Erken, the Council Manager Statutory Planning gave differing versions of conversations they had on the telephone on 1 or 2 July 2020 and 7 or 8 July 2020. The precise date is immaterial. Senior Counsel for each party cross-examined the other party's witness seeking to establish that their own witness's version was to be accepted.
As it transpired, neither party made any submission that the competing contents of the conversations had any bearing on the determination of the issues before me. It follows that it is strictly not necessary to make any finding as to those conversations. Nevertheless, I consider that, in fairness to the witnesses, some observations should be made.
First, I accept without hesitation that Mr Nolan and Mr Erken were telling the truth and doing their best to recall the conversations. In the witness box I did not form an unfavourable impression of either of them. Neither had taken contemporaneous notes of the conversations and each therefore were first committing the conversation to writing when they prepared their affidavit or statements for the proceedings some 7 or 8 months after the conversations.
It is uncommon for Commissioners of the Court to be faced with competing versions of conversations and the need to undertake the fact-finding exercise to determine on the balance of probabilities what actually occurred. A recent decision of the Court of Appeal is a reminder of the fallibility of human memory and the difficulty of such fact finding: "[27] Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22]: 'the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.'" (emphasis added) (ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 per Bell P at [27])
The conversations were obviously of importance to Mr Nolan. His company was facing an additional contribution of some $20,000 per lot if the consent was not granted before 1 July 2020. That had the potential to put his company at a commercial disadvantage to other developers who had already secured development consent for residential subdivision in the area. He undoubtedly believed that all the information that the Council could require had been given to it, and that there was no impediment to the grant of development consent.
Mr Erken was hitherto unaware of the DA and was responding to a message left at the Council, the nature of which required a response from a senior Council official. Mr Erken is an experienced planner and administrator.
As to the earlier conversation Mr Nolan says that Mr Erken told him the consent will be dated 30 June 2020, thereby alleviating Mr Nolan's concerns. He adhered to that evidence in cross-examination. Mr Erken denies that he said so in absolute terms but that he said he would investigate the matter and if all issues had been resolved by 30 June 2020 then the consent could be dated 30 June 2020.
I accept Mr Erken's version of the conversation, but also accept that Mr Nolan believed that the effect of what was said by Mr Erken was that a consent would be issued and dated 30 June 2020 for these reasons. It is inherently unlikely that a senior Council officer with limited knowledge of a particular development application would make a categoric statement about the grant of development consent. No doubt faced with an unhappy local developer Mr Erken was seeking to mollify Mr Nolan and potentially solve the problem at hand. The logical conclusion from the exchange is that Mr Erken said to Mr Nolan that he would investigate and that if all was in order then the consent could be dated 30 June 2020.
Mr Nolan of course was entirely confident that the investigation by Mr Erken would demonstrate that all issues were resolved by 30 June 2020 and so the consent would be dated 30 June 2020. That is, in my opinion, Mr Nolan has conflated what was said by Mr Erken with his belief as to the likely outcome of Mr Nolan's investigation, and came away from the telephone conversation believing that Mr Erken had effectively told him that the consent would be dated 30 June 2020. That is the honest, albeit mistaken, belief of Mr Nolan as to what was said by Mr Nolan.
As to the later conversation the only material difference between the versions is to whether Mr Nolan spoke of certain issues being outstanding. In cross-examination Mr Nolan agreed that he said the consent could not be issued because the Council had neglected to refer the application to the RFS and Department of Water Conservation. He adhered to his written evidence that he also said there were outstanding engineering referrals. Mr Nolan said that there was no mention of the engineering issues.
It was the fact that there were outstanding engineering issues as far as the Council was concerned and, in my view, it is more likely than not that Mr Erken also mentioned that fact. Again, it is inherently unlikely when the task he undertook was to ascertain whether all issues had been resolved that he would not mention the unresolved engineering issues to Mr Nolan. He may also have wished to divert emphasis from the Council's failure to carry out its obligations to notify and refer.
It must be accepted that the critical issue for Mr Nolan was whether or not a consent dated 30 June 2020 would be issued. Having been told it would not be issued, he was devastated, and it is not surprising that he would not have heard or recalled all that Mr Nolan said to him thereafter.
Nothing in my findings should be considered as a criticism of Mr Nolan or Mr Erken. I repeat that I accept they were both doing their best to recall the conversations, and human frailty often results in the parties to a conversation having two different, but honestly held, versions of the same conversation.

Was the Council unreasonable?

It should be observed that it was not the Applicant's case that the Council deliberately delayed any step in the assessment process, or deliberately failed to notify and refer for some financial or other nefarious reason. Although Mr Nolan in his oral evidence said "All I can say to that is that you ought to be a blind man if you cannot see that council delayed this from the very beginning" (see [58] above), I take Mr Nolan to be referring to there being delays from the beginning of the process, in his opinion, rather than an assertion of deliberate delay.
It was the fact that Council was not at a financial disadvantage if the cap on contributions was in place. As noted in the statement of Mr Richards, the Council's Coordinator Contributions Planning, at [20], the State Government's Local Infrastructure Growth Scheme funded the shortfall. A developer would pay a lower contribution and the Government would pay the balance. The Council received the total amount of the contribution calculated in accordance with its contributions plan both with the cap in place and after the cap was lifted, only the source of that funding was different.
There are no primary facts in contest in relation to the assessment process; the chronology set out above at [49] is borne out by the contemporaneous documents and the oral evidence. It is the consequence of those primary facts which is in issue.
Although expressed in a variety of ways in the Contentions and submissions, I take the Applicant's case on the facts to be that the Council was responsible for delay in determining the DA and "could have and should have" determined the DA prior to 1 July 2020 (AWS par 8).
In Contention (d) of the Applicant's FSOFC it says the Council delayed the determination of the DA when it was capable of being determined prior to 1 July 2020. In Contention 1 the Applicant said that the Council should have requested information in a "timelier manner". The same language was used in Contention 2 in relation to referral to concurrence bodies. In Contention 3 the Applicant says there was "unnecessary delay" by the Council in exhibiting the DA. In Contention 4 the allegation is simply delay in responding to information provided by the Applicant. Contention 8 is "unreasonable conduct of the Council through no fault of the Applicant".
The Applicant must, and does, point to more than simply delay. Delay may occur for reasons without the fault of, or with blame to, any person or body, and the Applicant's case is not that mere delay is sufficient for it to ground its case. Its case is that not only was there delay in the grant of development consent but that the delay was as a consequence of failure by the Council to act in a timely manner in a number of respects, and thereby acted unreasonably. It is necessary in my opinion to first determine whether the DA was capable of being determined prior to 1 July 2020, and then determine if the Council failed to act in a timely manner or unreasonably.
There is no doubt that the Applicant, through GDS, was prosecuting the DA with diligence and pressing the Council for action or response frequently. In the period from 9 January 2020 to 26 February 2020 the Applicant made contact four times following up progress. The Applicant responded to RFI 1 made on 26 February on the same day as to part and on 28 February as to the balance (though the latter was to commence debate about the request for additional contamination testing). The Applicant made further follow up requests on 18 and 24 March 2020. The chronology demonstrates that the Applicant provided information shortly after its request, engaged in debate typically of proponents for development consent, and conceded matters in the interest of obtaining the development consent as soon as it could.
To the extent that the DA was not determined by 1 July2020, I do not ascribe any delay to the Applicant or its advisors.
Could the DA have been determined prior to 1 July 2020 is of course a hypothetical question, but the answer almost inevitably must be yes, it could have been. The preliminary assessment could have been commenced prior to 5 February 2020 given there were probably about 5 working weeks after lodgement of the DA on 16 December 2019. Was it possible for RFI 1 to have been made less than 21 days after the commencement of the preliminary assessment began, when it was only requesting documents which had, presumably inadvertently, been omitted as well as indicating after internal advice that additional contamination testing was required? Again, the answer must be yes.
Similarly, almost self-evidently, RFI 2 was capable of being prepared earlier than 16 April 2020 - Council had the information from the Applicant which enabled it to request that information at an earlier time.
In a sense, the hypothetical exercise of whether or not the Council "could have" determined the DA prior to 1 July 2020, answers itself once it is accepted, as I do, that the Applicant provided over the course of the assessment period the documents necessary for the Council to determine the DA by the grant of consent prior to 1 July 2020. If the earlier periods between 16 December 2019 to 26 February 2020, and 27 February 2020 to 16 April 2020 each been compressed, then in the period from late April 2020 to 30 June 2020 the remaining debates and discussion could have occurred to enable the grant of development consent prior to 30 June 2020.
The real question, and the more difficult question, is whether the Council "should have" granted development consent prior to 1 July 2020 in all the circumstances. I should first observe that the circumstances relevant to make that determination are not limited to the Applicant's requirement for determination before 1 July 2020, nor solely to the circumstances of the assessment of the Applicant's DA. Whether or the Council "should have" granted development consent before 1 July 2020, or acted unreasonably, involves a judgment having regard to all relevant circumstances, including the potential for measuring performance against any applicable standards for performance of assessment of a development application.
The Council argues that unreasonable delay must be tested against a standard. It says that the evidence of Mr Rowley that he processed the application as he would any other application for residential subdivision, as did his colleagues, is fatal to the Applicant's case.
I agree that that "unreasonable" delay must be tested against a standard. However, I do not accept that the evidence of Mr Rowley is sufficient to dispose of the Applicant's case. Accepting as fact Mr Rowley's evidence that, effectively, the period of time taken to assess the DA was nothing out of the ordinary, there was no evidence from Mr Rowley of any standard which was thereby being met. It is theoretically possible that all of Mr Rowley's development application assessment periods involve unreasonable delay, so that simply putting the Applicant's DA into that basket is not of itself fatal to the Applicant's case.
But I do accept that the period of time for the assessment of the DA must be tested against a standard in order to conclude that it is unreasonable. Professional conduct of legal practitioners is tested against a standard of that which is reasonably to be expected of practitioners practising in the relevant area about which evidence is given (see, for example Trajkovski v Simpson [2019] NSWCA 52 at [15]). In my view it is an objective test as to whether the delay was unreasonable.
There is insufficient evidence before me to conclude that the delay was unreasonable. Whilst on its face, delays may appear unreasonable, in the absence of evidence about matters such as workloads, hours needed to be spent on matters, the number of people available in the various disciplines needing to be involved in the process, comparative time frames for other development applications, and even time frames for other councils, I cannot conclude that the delay here was unreasonable.
Whilst I do not accept Mr Rowley as the final word on the question of unreasonableness, there is nothing in his evidence which leads me to conclude that his conduct was unreasonable (subject to the notification/referral matter below). That is, he referred to his workload, the number of matters requiring his attention, the other staff he needed to rely on and so on, as well as his conclusion referred to at [133] above. I cannot conclude from his evidence that the delay was unreasonable.
The Applicant cross-examined Mr Rowley about the timeframes in the NSW Planning and Environment "Development Assessment Best Practice Guideline" March 2017 (Guideline). The timeframes for assessment recorded in that document were not met in the assessment of the Applicant's DA. However, there was no evidence that those guidelines were adopted as standard for the Council in this case or more broadly in New South Wales. It was not submitted that a failure to comply with those Guidelines leads to the conclusion that the delay was unreasonable.
I do not accept that failure to meet a guideline for "Best Practice" leads to a conclusion of unreasonable conduct. The Guideline itself says at p 6 that it "promotes best practice principles and approaches" and that "the principles, procedures and practices adopted in this document should be used to guide the assessment and determination of ... DAs to ensure that efficiency gains are achieved for all types of applications". The Guideline is a guide, not a standard, and is aspirational rather than prescriptive of outcomes.
The Applicant also points to the failure to refer the DA to RFS and NRAR as being in breach of s 4.47(2) of the EP&A Act which requires notification in accordance with the regulations, and cl 66 of the Environmental Planning and Assessment Regulation 2000 which requires that the notification occur within 14 days after lodgement of the development application. It is the case that the notification was overlooked by the Council and did not occur until months after lodgement.
Whilst the failure to refer within 14 days is not always unreasonable conduct, here the failure to refer until over 6 months after lodgement must be unreasonable, on any measure. If this was the only failure, then I would not hesitate to conclude that the delay in determination of the DA was unreasonable. However, I agree with the Council submission that this breach was not causative of the failure to grant development consent prior to 1 July 2020. The delay which occurred in the assessment process, which I have not found to be unreasonable, took the determination until after 1 July 2020 in any event. The failure to refer made no difference at all.
If it was the case that it was only the failure to refer which delayed the grant of the development consent, then I would not have hesitated to find the Council's delay was unreasonable.
It is the same in relation to notification of the DA. It did not occur until about 6 months after lodgement whereas the Council's relevant Development Control Plan required notification as soon as reasonably practicable after lodgement of the development application. But, like referral, it made no difference to the timing of the determination because the other matters took it past 1 July 2020in any event. Had the failure to notify or exhibit the DA been the only failure which delayed the determination of the development application, then once again, I would not have hesitated to find that the delay was unreasonable.
I therefore do not conclude that the delay in the determination of the DA was unreasonable, or that it "should" have been determined prior to 1 July 2020. Whilst the frustration of a person in Mr Nolan's situation is understandable, in that he was anxious to obtain development consent before the contributions cap was removed, it is not always possible to achieve that which is sought.

Assuming unreasonableness, does it arise from the Contributions Plan?

The following consideration is on the assumption, contrary to my finding, that the delay on the part of the Council was unreasonable.
The Applicant argued that the unreasonableness arose from the application of the Contributions Plan itself, consistently with the principle outlined by Moore JA (as his Honour then was) in Colonial in which at [47] his Honour said, after referring to Rose Consulting: "The interlinking made clear by his Honour of the enabling and the disallowing provisions and the comparison between the requirement for reasonableness in the enabling provision and unreasonableness in the disallowing provision clearly identifies the limitation on the scope of s 94B(3) as being confined to reasonableness in the context of that which is contained in and imposed by the contributions plan itself."
The Applicant says that the unreasonableness of the contributions condition arises out of the plan applying to the Site at the date of determination, after 1 July 2020 (AWS par [33). The Council submits that the (assumed) unreasonableness arises from the "stepped" nature of the Ministerial Direction (being removed from a certain date) and the date of the determination of the DA, therefore not arising from the plan itself.
I do not accept that the assumed unreasonableness arises falls within the principle in Colonial. The claimed unreasonableness in Colonial arose from the requirement to dispose of stormwater crossing the Site. It was a matter described as external to the contributions condition. So too it is here. The relevant matter is truly the date of the grant of development consent. The unreasonableness does not arise from the terms of the contributions plan, but rather from its application at the date of the grant of development consent, in combination with the terms of the Ministerial Direction which removed the cap from 1 July 2020.
The unreasonableness claimed is not of the nature falling within the principle in Colonial and therefore the Applicant's claim fails, if Colonial is accepted as good law.

Are Colonial and Intrapak clearly wrong?

In Intrapak I decided that Colonial was correctly decided, although no party before me made substantive submissions that it was wrongly decided. The Applicant's alternate argument here if it was held that the (assumed) unreasonableness did not fall within the Colonial principle, then Colonial, and therefore my decision in Intrapak were clearly wrong, and the notion of unreasonableness in s 7.13(3) is not so confined.
The Applicant most respectfully urged upon me the error of my decision and prompted recall of the words of Bramwell B in Andrews v Styrap (1872) 26 LT(NS) 704 at 706 quoted by Mason P in Woolworths Ltd v Pallas Newco Limited (2004) 61 NSWLR 707; [2004] NSWCA 422: "… the matter does not appear to me now as it appears to have appeared to me then".
After careful consideration however, the matter does appear to me now as it appeared to me then.
In Colonial his Honour analysed the Court of Appeal's decision in Rose Consulting and concluded as I have set out in [146] above. In Intrapak I said the following about Colonial and Rose Consulting: "[152] Colonial was a case similar to the present. A contributions condition was imposed upon a development consent for residential subdivision. A condition was also imposed which required the proponent to construct a drainage system (separate to intra-allotment drainage) to convey stormwater generated from the catchment above the site, through the site and to Narrabeen Creek below the site. [153] The Court considered the predecessor to s 7.13(3), then s 94B(3), which was in relevantly identical terms: at [39]. The Council submitted in that case that s 94B(3) was not engaged because the burden did not arise from the application of the contributions plan that produced the contributions condition: at [40]. [154] After considering Rose Consulting, Moore J observed at [47]-[48]: "The interlinking made clear by his Honour [Santow JA] of the enabling and the disallowing provisions and the comparison between the requirement for reasonableness in the enabling provision and unreasonableness in the disallowing provision clearly identifies the limitation on the scope of s94B(3) as being confined to reasonableness in the context of that which is contained in and imposed by the contributions plan itself. The opening sentence of [35] and the first three sentences of [37] in his Honour's reasons reinforce my conclusion that the power to set aside a contributions' condition, such as condition C19, must find a basis of unreasonableness in the contribution plan's application to the site rather than in some other burden imposed on the beneficiary of the development consent where that burden is said to be unreasonable but has no foundation whatsoever in the contributions plan itself." (emphasis added) [155] Neither party suggested that Colonial was wrongly decided, except for an alternative submission by the Applicant which was not developed in writing or in oral submissions. [156] The decision in Colonial is founded on dicta of Santow JA in Rose Consulting. In that case the Court of Appeal was dealing with the meaning of "unreasonable" in the context of the then EP&A Act provisions equivalent to the present ss 7.11 and 7.13 of the EP&A Act. Santow JA delivered the judgment of the Court with whom Meagher JA and Young CJ in Eq agreed. [157] Santow JA noted that (using the present EP&A Act section numbering): ○ A consent authority may impose a condition requiring the dedication of land or payment of monetary contribution for future public amenities (s 7.11(1)); ○ The condition under s 7.11(1) may be imposed only to require a reasonable dedication or contribution (s 7.11(2)); ○ A consent authority may impose a condition requiring the dedication of land or payment of monetary contribution as recoupment for past expenditure on public amenities (s 7.11(3)); ○ The condition under s 7.11(3) may be imposed only to require a reasonable dedication or contribution (s 7.11(4)); ○ The consent authority can only impose such conditions if determined in accordance with a contributions plan (s 7.13(1)); and ○ A condition may be disallowed by the Court on appeal because it is unreasonable even if determined in accordance with a contributions plan (s 7.13(3)). [158] It follows his Honour said, that the unreasonableness referred to in s 7.13(3), having the logical meaning of "not reasonable", must be related to the requirement for reasonableness in, relevantly here, s 7.11(2). That is, the review power of the Court is to ensure that the contribution required by a 7.11(1) contributions condition is reasonable in accordance with s 7.11(2) - which in turn means a reasonable dedication or contribution to the provision, extension or augmentation of public amenities and public services. [159] In Colonial, Moore AJ applied the reasoning of Santow JA to conclude that unreasonableness in s 7.13(3) means unreasonableness arising out of the application of the contributions plan - if the contributions plan itself requires an unreasonable contribution to the provision of public amenities and services then the condition is unreasonable. His Honour Moore AJ on the facts in Colonial applied the corollary of that principle to find that it is irrelevant to the question of unreasonableness to consider an obligation imposed by a condition of consent unrelated to the contributions plan. [160] Put more simply, unreasonableness in s 7.13(3) of the EP&A Act is determined by asking whether a condition imposed in accordance with a contributions plan requires an unreasonable dedication or contribution for the provision, extension or augmentation of the public amenities and services concerned having regard to the terms of the plan itself. Does the contributions plan mandate an unreasonable result? [161] I agree with the principle adopted by Moore AJ in Colonial applying the dicta of Santow in Rose Consulting. The principle is the logical conclusion of the analysis of the scheme by Santow JA, considering the context of "reasonable" and "unreasonable" in the various sections. It is also consistent with my two earlier reasons for rejecting the Applicant's case. The "burden" imposed by a condition of development consent requiring works to be carried out does not arise by the application of the plan itself. And the Colonial principle focusses on unreasonableness at the point of imposing the contributions condition, eschewing any question which may arise under s 7.11(5) of the EP&A Act about a consent authority accepting a material public benefit in full or part satisfaction of a contributions condition. [162] The decision in Colonial is also consistent with good planning policy for the reasons summarised in the Council submissions in the following terms: "This is because the contributions planning process, resulting in the contributions plan, is itself inherently a working-out and an expression of appropriate public policy with respect to the provision of public amenities and services, determined by the relevant council, as informed by public consultation. Thus, it is a council, informed by submissions from public exhibition of a draft contributions plan, that determines the types and kinds of public amenities that should be provided to cater for its population." [163] The decision of Moore AJ in Colonial is one of a question of law and therefore a decision to which, in my opinion, the principle of comity applies. It is not a decision which can be ignored, as was suggested by the Applicant in reliance upon Segal. For the reasons which I have expressed, whilst not bound by the decision in Colonial, I will follow it and apply it because it is correct."
The Council submits that my analysis was correct, and that Colonial is an application of the decision in Rose Consulting. I do not accept the submissions of the Applicant at [89]-[93] above that Colonial and Intrapak were wrongly decided.
It is true that the words of s 7.13(3) do not expressly limit the operation of the notion of unreasonableness. But the subsection must be read in context. The analysis of Santow JA in Rose Consulting searches for the meaning of "unreasonable" in that context. He derives its meaning as the opposite of "reasonable" where that term is used in the contributions scheme of legislation as relating to the contribution to public amenities and services. The word "unreasonable" must have some limitation in any event, because to be an unreasonable outcome it must be compared to what is to be a reasonable outcome having regard to some criteria. That is, unreasonableness is not determined in a vacuum.
And so there must be some sort of limitation on the meaning of unreasonableness whatever that may be. The argument by the Applicant that the words themselves do not import any limitation does not assist the task because the scope of the matters to determine whether the outcome is unreasonable must be determined in any event. That is the consequence of the analysis in Rose Consulting. His Honour determined the scope of the matters to consider to determine whether the contributions condition is unreasonable, and demonstrated that unreasonableness in s 7.13(3) means unreasonableness arising out of the application of the contributions plan - if the contributions plan itself requires an unreasonable contribution to the provision of public amenities and services then the condition is unreasonable.
The phrase "even if it was determined in accordance with the relevant contributions plan" does not detract from the construction adopted. If the contributions condition is unreasonable then the Court has the power to modify the condition. The words simply make plain that the contributions plan does not inhibit the Court from making a determination of unreasonableness.
Nor does the EP&A Act assume that a contributions plan is always reasonable in its terms in general, or in its application to all situations as suggested by the Applicant in its oral submissions. That is precisely why the power in the Court to modify a contributions condition exists, as adverted to by Santow JA in Rose Consulting at [37].
The Applicant's third argument (at [91] above) does not assist its case. The analysis in Rose Consulting does not make an implication or impose a limitation not found in the express words. Rather it identifies the meaning of a word, unreasonable, and identifies from the context its meaning, or the manner in which the contributions condition is to be determined as unreasonable.
Contrary to the Applicant's fourth submission, there are good reasons why the construction adopted in Colonial is consistent with the scope, purpose and context of the EP& A Act. The Council submitted that the policy reasons at [162] of Intrapak (quoted at [153] above) supported the construction adopted and that the scheme of contributions is: "designed with care to produce certain results on the basis of public consultation permitting all developers to know what contributions are likely to be required. For each individual developer to be able to challenge the scheme in the basis of its own capacity to pay (the Applicant's example) would disrupt that and threaten councils' capacity to deliver necessary services".
I agree. Orderly planning would be disrupted if the scope of consideration of matters to determine unreasonableness were as broad as the Applicant suggests.
Finally, I do not agree that Rose Consulting does not support the conclusion in Colonial for the reasons I gave in Intrapak. The submission that the proper construction of the subsection "allows a party to identify circumstances affecting it, or the relevant land, or some aspect of the development that makes the terms and/or operation of the [contributions] condition unreasonable" (AWS par 59) is contrary to the conclusion of Santow JA in Rose Consulting.

Conclusion

The appeal must fail. For the foregoing reasons I find that: 1. I cannot conclude that the delay in determining the DA was unreasonable or that the unreasonable delay in notifying or referring the DA was causative of the delay making the contributions condition unreasonable; 2. Even assuming unreasonable conduct by the Council, the unreasonableness of the contributions condition does not arise from the application of the contributions plan in accordance with Colonial and so does not fall within the proper meaning of unreasonable in s 7.13(3) of the EP&A Act; 3. Colonial and Intrapak were not wrongly decided.
Accordingly, I make the following orders: 1. The appeal is dismissed. 2. Modification Application number DA 2019/947/3 seeking to modify condition 5.0(13) of development consent number DA 2019/947 for a 42 lot residential subdivision, four residual lots, demolition of structures, tree removal, earthworks, roads, drainage, civil works and landscaping at Lot 20 in Deposited Plan 832295 and Lot 11 in Deposited Plan 629130 together known as 133 and 149 Ingleburn Road Leppington is determined by refusal. 3. The exhibits are returned other than exhibits A, B, C, 2 and 3.

Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2021

Some principles about contributions

In Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 (Intrapak) at [79] and following, I set out some principles which are relevant to this case and are worthy of repeating.
It is well-established that the only source of power authorising the imposition of a condition on a development consent requiring the payment of a monetary contribution is to be found in s 7.11 of the EP&A Act (Maitland City Council v Ananbah Homes Pty Ltd (2005) 64 NSWLR 695 at [132]; [2005] NSWCA 455).
It is also well-settled that this does not preclude a consent authority from imposing a condition requiring the carrying out of works provided such a condition is authorised by s 4.17(1)(f) of the EP&A Act (Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41) (Olivieri). A condition of consent requiring work may lawfully be imposed where the need for that work is generated by the development (Olivieri), because it fairly and reasonable relates to the development.
A challenge to a contribution condition under s 7.13(3) can be made by way of a modification application: Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 67 NSWLR 529; [2006] NSWLEC 502 at [22].
It is clear that the Court on appeal has a broader discretion than a council in that it can amend a condition found to be unreasonable even if the result is one not permitted by the relevant contributions plan: Rose Consulting Group Pty Ltd v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266 (Rose Consulting) at 175 [35] (Santow JA, Meagher JA and Young CJ in Eq agreeing).
Unreasonable does not mean, or require, Wednesbury unreasonableness: Rose Consulting at 171 [27], 177 [46].
The first step for the Court on appeal is to determine whether the condition is unreasonable and the second step (to determine an appropriate contribution) involves the exercise of a discretionary power (Jonathon v Lismore City Council [2002] NSWLEC 134 at [15]).
The applicant bears the 'persuasive burden' to establish what any reduction in contributions the Court should allow: Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 at [11] (Moore J).
There is no issue about the foregoing principles.
In Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188 (Colonial) Moore AJ (as his Honour then was) determined in Class 1 proceedings that the power to set aside a contributions condition must find a basis for unreasonableness in the contributions plan's application to the site rather than in some other burden imposed on the beneficiary of the consent (at [48]). In Intrapak I applied Colonial to the facts of that case.
The Applicant submits, most respectfully, that the decisions in Colonial and Intrapak are wrong. The correctness of those decisions only arises if the Applicant's primary submission is not accepted, to which reference is made below.

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