Land and Environment Court (NSW)|1995-07-12|Before: Talbot J

The applicant's argument is that any question of the type of fencing along the northern boundary of these lots should be a matter for the individual owners of the lots in due course.

Development by subdivision and the erection of dwellings has occurred both north and south of Cutrock Creek in the locality of the subject land. There is no evidence of a common fencing requirement in respect of the existing development along Cutrock Creek. Although some set back has been created between the bank of the creek and the rear boundaries in most cases, the area is characterised by a lack of fencing along those rear boundaries.

The condition, in no way, appears to reflect any general policy by council to fence off drains and waterways. There is no evidence of any untoward incidents involving children in Cutrock Creek. Although in some cases the high bank of the creek is up to five metres above its bed, there is no suggestion that large volumes of water are retained in the creek after storms. Elsewhere, the council has even provided for a network of concrete pathways for the purpose of providing public access to the creek and its environs as passive open space. Furthermore, the council originally had no intention of requiring a fence along O'Donnell Crescent between Lots 1 and 41, where for over 26 metres, the new road will be in direct proximity to the creek. It was only after the hearing commenced that the proposed condition was amended to cover the anomaly pointed out by the Court.

Council witnesses contended that the fence would act as a measure to prevent or control erosion and sedimentation of the creek and the possible dumping of rubbish.

The Court is not convinced that a fence is justified on any ground, including safety.

If, in a particular case, the individual owner of a lot decides, for whatever reason, to deny access from the private land to the creek, then that is a matter for the individual. People, with children, who live near a creek or other natural watercourse must be given the credit of understanding potential danger. Providing fencing to meet the requirements of the user of private land, subject to reasonableness, is a normal incidence of ownership.

The total enclosure of the creek by a solid fence could even be counterproductive by restricting the capacity for surveillance of illicit dumping.

In the circumstances, the Court is not prepared to impose the condition proposed by council, over the objection of the applicant.

At the close of the case, the council contended for an amended form of condition as follows:-

"13(iv). (a) the Applicant is to modify the existing open drain system in Fagans Road as follows:

i) remove and replace the existing gutter crossing on the southern side of Fagans Road opposite proposed Lot 28 with a concrete dish drain;

ii) block off the existing pipe culvert entry pit located on the southern side of Fagans Road opposite proposed Lot 28;

iii) construct an earth berm on the on the (sic) northern side of Fagans Road adjacent to proposed Lots 28, 29 and 30 and pipe the water collected to the end of the existing drainage system on the southern side of Fagans Road.

All the above work is to be carried out to the satisfaction of the Director Development & Environment."

No water from the subject land will drain in the direction of Fagans Road.

The council Manager - Subdivisions, Mr R J Burrough, explained to the Court that the condition was designed to facilitate works to protect the southern allotments from inundation. The condition in its final form reflects his evidence and as he demonstrated on the site.

Currently a pipe across Fagans Road directs water flowing from the east along the southern side of Fagans Road into the existing open catch drain running along the southern boundary of the subject land. Mr Burrough suggests that the drain under Fagans Road should be blocked and that the existing dish drain on the southern side of the road should be improved and extended in a westerly direction.

He also requires the construction of the earth berm on the northern side of Fagans Road to prevent run off of water falling between the crown and the shoulder of the road onto the subject land.

It is self-evident from an inspection of the site, photographs produced by Mr Burrough and his own evidence, that the drainage provided on the south side of Fagans Road is presently inadequate and expedient. The need for upgrading is unrelated to the subdivision.

Although it is obvious that the work is desirable, it should not be at the cost of the developer of land on the northern side of the road.

On the other hand, the earth berm proposed along the northern frontage is a reasonable measure required to facilitate and accommodate the change to residential use. It is akin to the provision of kerb and gutter along a road frontage which, except in the most unusual of circumstances, would be a natural component of a subdivision development.

Mr Burrough demonstrated that it would be necessary for the water collected by the earth berm to be diverted across Fagans Road to connect with the drain on the south. If the whole of Fagans Road was to be protected by the earth berm, then the drain across Fagans Road might be seen in a more general context as being for the benefit of other land. That is not so, and accordingly the applicant should be required to bear the cost of the whole of the works referred to in subparagraph (iii) of proposed condition 13(iv)(a). It is implicit in my conclusion that the applicant should only be responsible for the cost of a berm and pipe sufficient to deal with the run off from the road immediately adjacent to the frontage of the subject land. I am moved to make the last observation as I was left with the distinct impression that the council had not considered the future requirements for the drainage of Fagans Road in any serious or measured way with the consequence that further reflection may result in additional works being proposed which should not be the responsibility of the subdivider of the subject land.

Subparagraph (iii) of the condition has been drafted in terms which stipulate the water will be carried to the end of the existing drainage system. The condition should be amended to make it clear that the water collected by the berm is piped under the road to connect with the existing drainage system on the southern side of Fagans Road opposite Lot 30.

The dispute in relation to this condition appears to be confined to the location of a detention storage and standards to be adopted in the engineering specification.

The council requires merely that the storage be on the site whereas the applicant contends it should be located in Cutrock Creek. Mr Burrough thought it could be designed within a road reserve.

The applicant argued that part of the proposed six metre set back from Cutrock Creek should be incorporated within the residential allotments. This issue did not loom large in the applicant's case. In the Court's opinion, it is preferable for the six metre set back to be retained to provide an opportunity for access by vehicle where required for creek maintenance, including control of vegetation. Although the creek embankments are in a quasi stable condition, it is important to preserve these conditions to guard against the risk of significant future instability.

No reason was advanced as to why the detention storage cannot be provided within the six metre set back.

No engineering plans have been furnished in support of the application. It is appropriate that such plans, prepared by a suitably experienced and qualified civil engineer, should be submitted and that the current Australian Rainfall and Runoff and Standard Engineering Practice be adopted. The extent of flows from the subject land up to the 1 in 100 year storm event should be contained at present levels.

The condition should be amended to read as follows:-

13(iv). (b) Detention storage to limit post development flows to predevelopment flows emanating from the subject land up to 1% AEP for stormwater runoff is to be provided within a road or proposed Lot 42 in conjunction with the stormwater disposal system.

Engineering plans and supporting calculations for the on site stormwater detention scheme are to be detailed in engineering plans prepared by a suitably experienced civil engineer and are to be in accordance with the current Australian Rainfall and Runoff and Standard Engineering Practice.

The council requires this condition to be in the following form:-

"13(iv). (d) The upgrading of the existing catch drain at the rear of Lots 14, 15, 16, 17, 20, 21, 22, 27 and 28 to cater for the 1% AEP flows plus 300 mm freeboard and connection to the existing creek."

With the blocking of the pipe under Fagans Road, proposed by Mr Burrough, the flow along the southern side of Fagans Road will be discharged to the west away from the subject land. The catch drain will still pick up flows from the road itself. The drain is already in existence and council requires the creation of an inter-allotment easement to drain water over the relevant lots along the site of the drain.

It has not been established, to the satisfaction of the Court, that any upgrading of the catch drain is required as a consequence of the subdivision. It is already there and appears to exist mainly for the purpose of directing run off from Fagans Road into Cutrock Creek. Those flows will be diminished when the drain on the southern side of Fagans Road is improved by council, as it should be. The catch drain will continue to function as the collector for flow from the adjoining land.

The applicant should not be required to carry out the works specified in this proposed condition. It will be deleted.

This condition provides for all weeds and debris to be removed from the southern bank of the creek to the satisfaction of the council's Program Manager - Recreation.

The creek bank and adjacent areas are thickly vegetated with a combination of native bushes and trees and a number of privets, some very large. The weed infestation has been described as extensive and includes noxious plants. The Court was told that there is also a considerable amount of debris such as building materials, automobile parts, and rubbish accumulated within the creek banks.

The council not only demands that the whole of Lot 42 be dedicated as a drainage reserve at no cost to council, but requires the applicant to improve it before handing over. Notwithstanding the predominance of unwanted species, the council seeks to preserve the root systems to bind the soil to prevent erosion and slump. It envisages that the applicant cut down the offending plants and trees at about ground level and then poison the stumps.

On the other hand, the applicant seeks to dedicate only that part of Lot 42 between the centre of the creek and the top of the bank as drainage reserve with the balance to be dedicated as open space. The applicant seeks a credit for the dedication of this land against claims for monetary contribution pursuant to s 94 of the EPA Act.

Irrespective of whether the land is dedicated for drainage or open space purposes, with or without compensation, the land will be vested in council following which, as owner and the responsible authority, it can take appropriate action to suit its own plans for the future use of the land. The fact that the land might be in a degraded state will be a factor to be taken into account by the Court in its determination of the remaining dispute relating to dedication of this land and other lands and monetary contributions demanded by council.

A management plan for Lot 42 can be implemented by council following completion of works required for the subdivision, including drainage.

In the circumstances of this case, the Court considers it unreasonable that condition 27 be imposed.

It is pertinent to note that the council did not see fit to impose this condition in the original consent. It arose during the course of preparation for this hearing at the instigation of the Reserves Planner. Furthermore, the condition of Lot 42 is not unique for the land adjoining and within Cutrock Creek. The Court was told that there was no requirement for clearing the land within or adjacent to the creek in earlier consents to subdivide other land in the locality. Furthermore, if council held a genuine belief that noxious plants and weeds in the creek should be removed, it would have caused appropriate notices to be issued to the owner, heretofore and long ago.

These conditions relate to a requirement for the payment of a monetary contribution or dedication of land for roadworks, drainage, community facilities and open space pursuant to s 94 of the EPA Act.

The principal issues arise in regard to the form and effect of the DCP and Contributions Plans 8A, 8B and 8C and the reasonableness of conditions made pursuant thereto.

In regard to roadworks, the dispute is confined to the calculation of a monetary contribution.

Curiously, the applicant contends for a higher monetary contribution in respect of community facilities than the council by attributing approximately $4,000 more than the council to the capital element but $2,000 less for recreation embellishment. The reason for this will become apparent when the evidence is analysed.

The parties are at odds in regard to a designation for the purpose of dedication of Lot 42 and the value to be attributed to it. The applicant contends that the area within the six metre set back from the creek bank should be treated as an open space contribution and the monetary payment adjusted accordingly.

The applicant does not agree to dedicate an area of 2,000 m2 in the vicinity of proposed Lots 1, 2, 3 and 4 for the purposes of a playground at no cost to the council. Until the hearing, this requirement related to Lots 40 and 41.

The applicant argues that the value of Lot 42 should be assessed on the basis that, if it had been available for development, it would have yielded three additional residential lots. It also contends that the date at which the value of Lots 1, 2, 3 and 4 should be assessed is the date of registration of the linen plan of subdivision as it is at this date that the land would be dedicated to council.

Before attempting to resolve whether conditions proposed are reasonable pursuant to ss 94(1) and 94(8), the Court must first determine whether these are relevant Contributions Plans in accordance with the EPA Act and Regulation and, if so, the effect thereof.

Resolution of the issue has been made more difficult by the evidence.

During its case in chief, the council tendered a document purporting to be a compendium of the DCP and the Contributions Plans as Exhibit 7.

It became apparent during the oral evidence of Mr Kettle, the applicant's planning consultant, that his evidence was based on different documents.

Subsequently, at the close of the applicant's case, a document purchased from the council the day before and described as "Development Control Plan and Contributions Plans No. 8 Lisarow - December 1992" was tendered as Exhibit U. This was the document relied upon by Mr Kettle.

After the applicant's submissions had been made, Mr Thompson, appearing for the council, before commencing his submissions, tendered a further document which purported to be a copy of Development Control Plan No. 8 - Lisarow and an extract of Sheets 1 - 4 of Council Registered Map No. 32/92 adopted by council on 15 December 1992 bearing a certificate pursuant to s 150 of the EPA Act. This document became Exhibit 24 after leave was given to the applicant to re-open or make further submissions after the document had been considered.

Although similar in both form and content, none of the documents are identical.

The applicant has submitted that, as the three versions are inconsistent, then none of them can be adopted with the consequence that s 94(7) cannot be satisfied. This subsection provides that a council may impose a condition referred to in s 94 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under s 94AB.

Judicial notice is to be taken of a contributions plan and of the date on which the plan came into affect by dint of s 94AC(1). Section 94AC(2) prevents the validity of any procedure in making or approving a contributions plan to be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date on which the plan came into effect.

Section 94AB makes provision for the making of a contributions plan as follows:-

"94AB (1) A council may prepare and approve a contributions plan for the purpose of imposing conditions referred to in section 94.

(2) One or more contributions plans may be made for all or any part of the council's area and in relation to one or more public amenities or public services.

(3) The council must not approve a contributions plan that is inconsistent with any direction given to it under section 94A.

(4) A draft contributions plan must be publicly exhibited for a period of not less than 28 days.

(5) Except as provided by this section, the format, structure, subject-matter and procedures for the preparation, public exhibition, approval, amendment and repeal of a contributions plan are to be as prescribed.

(6) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed."

Until Exhibit 24 was produced, the council maintained that it relied on Exhibit 7.

In submissions, Mr Thompson pointed to s 94AC to support a presumption of regularity in respect of Exhibit 24 and that accordingly the Court should rely on that document. This submission only creates further problems for the council in that the certification by the council's public officer which purports to be made pursuant to s 150 refers only to a copy of DCP 8 and the extract of Sheets 1-4 attached. Although what appear to be copies of the Contributions Plans are incorporated in Exhibit 24, the certification makes no reference to the text.

Furthermore, the certified document does not meet the description of any document, map or plan embodied, incorporated or referred to in an environmental planning instrument referred to in s 150. The definition of environmental planning instrument in s 5 of the EPA Act does not include a DCP or a contributions plan.

Exhibit 24 appears to be no more than a photocopy of attachments to a business paper for, or report to, a council meeting comprising the full text of DCP 8 and Contributions Plans 8A, 8B and 8C with maps presented to the council for its approval on 15 December 1992. The oral evidence does not assist me to make a final conclusion.

The applicant does not dispute that a DCP and contributions plans have been made. The real question is, which of the versions of the plans in evidence, if any, can be relied upon in these proceedings?

Each of DCP 8 and the three Contributions Plans dictates that it must be read in conjunction with the others. The DCP must also be read in conjunction with Lisarow Social Plan 1992. The Court's attention has not been drawn to any provision of Gosford PSO or LEP No. 200 which purport to embody, incorporate or refer to the DCP or the Contributions Plans.

Exhibit 7 was compiled as a matter of convenience by solicitors acting upon instructions from the council for the purpose of these proceedings. It differs in significant respects from the other exhibits.

The discrepancies between Exhibit U and Exhibit 24 are only formal and confined to the commencement date in accordance with cll 20(4) and 30(4) of the Regulation.

It would be inappropriate to rely on Exhibit 7 in the face of the purported, even if irrelevant, certification of Exhibit 24 and the availability of Exhibit U at the council chambers pursuant to cll 24 and 37 of the Regulation. There is no evidence of any amendments pursuant to cl 21(1) or 31(1) of the Regulation.

Because Exhibit 24 and Exhibit U do not differ in any material respect the Court would be entitled to rely upon either of them for the purpose of s 94AC(1). Exhibit U is complete in all respects. I have taken judicial notice of the contributions plans contained within Exhibit U.

It reflects badly on the council that it has made no formal attempt to justify or explain the changes brought about by Exhibit 7.

The potential for the Court being misled, in the circumstances, is a real one, particularly in the light of s 94AC(1).

The DCP itself provides little assistance in regard to the assessment of s 94 contributions except the following statements as one of its purposes:-

"As the DCP has existed for a number of years, some Section 94 contributions have already been used by Council to provide new facilities and services and upgrading of existing facilities and services, to cater for the additional demand generated by the new development and population."

The reference to the existing DCP is presumably to the 1982 DCP. The statement is repeated as a purpose in each of Contributions Plans 8A, 8B and 8C. The other common purpose of the Contributions Plans is as follows:-

"The purpose of the CP is to enable the levying of developer contributions for the provision and upgrading of public services and amenities which will be required as a result of the increased demand generated by development in the CP area."

The only notation in respect of the subject land in the 1982 and 1992 DCPs related to a drainage line along its northern boundary following the creek (generally in the area of Lot 42) and the requirement for a geotechnical survey of part of the steep southern section of the land.

It appears to be common ground that the potential for residential development in the area of the DCP is 947 lots of which 475 (including the subject land) remain to be developed.

The Lisarow Social Plan identifies an area near or on Fagans Road as a playground. In the 1982 DCP, the playground site was located some distance away to the south on the other side of Fagans Road to the subject land. In Contributions Plan 8C, the site of a proposed playground is identified as being in yet a different location near the existing cul de sac at the eastern end of O'Donnell Crescent.

Apart from noting that the proposed location for a playground includes the Fagans Road area (to be determined when subdivided) and that it should have a high priority, the 1992 Lisarow Social Plan provides little assistance. Contributions Plan 8C notes that two out of a total requirement of three playgrounds remain to be provided with "full cost to s 94 as will serve needs of release area only". Estimated expenditure is $70,000 of which 65 per cent is attributed to the Fagans Road area, designated as medium priority.

Reference to the council's formal plans only establishes that a playground is desirable in the general area of the subject land without identification of a specific site. The general criteria seems to be that one playground should be provided within 500 metres of each dwelling house. I have not been persuaded that the siting of a playground within Lots 1, 2, 3 and 4 adjacent to the creek is either imperative or desirable. Although technically it might serve all of the residential allotments within a 500 metre radius, it is by no means the only site that satisfies that criteria. There is no convenient direct access from relevant dwellings in Woodbine Close, Brie Close and the major part of Woodview Avenue due to the dissection of the local area by Cutrock Creek. The applicant has demonstrated that at least two other sites could be made available within the 500 metre radius. Council officers displayed a pained reluctance to analyse the alternative sites except, ultimately, the reserves planner who dealt with the issue in her evidence in reply. Surprisingly she rejected one of the alternative sites because of the flood prone nature of the land without having made any inquiries in regard to flooding potential. Apart from any question of reasonableness, the Court is not satisfied that the area identified within Lots 1, 2, 3 and 4 is necessarily an appropriate site for a playground. Condition 26 proposed by council is rejected. The demand created for the playground facilities can be taken into account in the assessment of s 94 monetary contribution for community and recreation facilities. The claim for dedication at no cost to council smacks of opportunism.

The utility of the land in the six metre set back from the bank of the creek as public open space has not been established to the satisfaction of the Court. It is narrow and will be adjacent to a continuous line of back yards. The area around the creek is not of high scenic quality and is unlikely to attract regular use by members of the public. There is no proposal to provide a concrete path within this area although there is a possibility that it could be connected to other open space areas serviced by footpaths that have already been built. The main purpose of the six metre set back is to provide access for maintenance of the creek and to ensure that the land adjacent to the high bank can be maintained in a stable condition. The creek is an inherent part of the drainage system. The general area of Lot 42 is identified in CP 8A as an area to be dedicated as a drainage reserve.

Notwithstanding the dedication of the whole of the creek area as a public reserve in the subdivision of the land immediately to the west and the recognition of a dual function as drainage reserve and passive open space in a five metre set back from the top of the bank in the area immediately to the north of the subject land, (the full details and utility of these areas are not available to the Court) the designation of any part of Lot 42 for open space purposes cannot be justified. The whole of that area therefore should be dedicated as drainage reserve for the purposes of s 94 and CP 8A. That does not necessarily mean that the area should be dedicated at no cost to council or without making some allowance against the monetary contribution claimed for drainage.

Having resolved the above issues, it is possible to determine what are reasonable monetary contributions required for roadworks, drainage, community facilities and open space under s 94.

Section 94(7) allows the council to impose a condition that satisfies s 94(1) and (2) only if it is of a kind allowed by, and is determined in accordance with, an approved contributions plan. The council is thereby restricted to the effect of the plan. Without a plan, no condition requiring a monetary contribution or dedication of land can be imposed. With a plan in place, the power is limited to a condition of a kind allowed by the plan. Further, the condition must be determined in accordance with the plan.

Although the Court on appeal has the same functions as the council, s 94(8) allows the Court a wider discretion. Where the Court considers a condition is unreasonable, it may disallow or amend it. This is so even where the condition accords with s 94(7) as being of a kind allowed by and has been determined by council in accordance with a contributions plan.

The applicant contends that condition 19, which requires monetary contributions, is unreasonable notwithstanding that the payments required are contemplated by s 94(1) and (2) and the condition is of a kind allowed by, and has been determined in accordance with, Contributions Plans 8A, 8B and 8C.

Notwithstanding s 94(7), (8) and ss 94AB and 94AC, the test for validity of a s 94 condition remains that it must:-

1. Have a planning purpose or relate to a planning purpose;

2. Fairly and reasonably relate to the subject development;

3. Not be so unreasonable that no reasonable planning authority could have imposed it.

On appeal, the question of validity of the conditions of consent imposed by the council does not arise except to the extent of the Court determining the application in accordance with the law. The Court does not have the power to impose a condition which does not comply with s 94(7) except to the extent permitted by s 94(8). The applicant does not contend the Court has no power to require monetary contributions in the present case, except to the extent already disposed of. The Court will therefore determine the amount of s 94 contributions using the criteria in the respective plans according to what is reasonable.

Although the plan of subdivision refers to 42 lots, only 40 new residential lots are created. After allowing for the two existing lots, the demand for services can be attributed to 38 lots. The formulae for calculating monetary contributions for drainage in Contributions Plan 8A (CP 8A) separately take account of the land to be acquired for drainage purposes and the costs of the actual drainage works.

The calculations are based upon the 475 lots remaining to be developed.

The total area identified for drainage purposes within the DCP area is 192,820 m2. This equates to approximately 204 m2 for each of 947 lots and 406 m2 for 475 lots. At 204 m2 per lot the demand will be 7,752 m2 for 38 lots. The current council valuation estimate of the cost of acquiring land for drainage is $3/m2 based on a revision carried out in 1990. Allowance for the value of 7,900 m2 in Lot 42 at $3/m2 would be $23,700. By accepting 204 m2 for 38 lots at $3/m2 as reasonable, the cost of acquiring drainage land would be $23,256. After allowing the value of land dedicated at $23,700, there would be a surplus of $444. The figure of $444 contrasts with a balance owing of $18,930 achieved by the council, using the formula in CP 8. The former is to be preferred on the grounds of reasonableness. Allowing the credit for the dedication of Lot 42 at $3/m2 recognises that it has been identified for drainage purposes since 1982 and its degraded state. An assessment of value based on a hypothetical resumption is rejected, particularly as the area of Lot 42 roughly equates to the demand for drainage land created by the subdivision.

The council's calculation has produced a disproportionate result between the existing and future lots. It has failed to properly take into account the disparity brought about when earlier contributions were levied on the basis that the land to be acquired would be used for the dual purpose of open space and drainage. Council has attempted to rationalise the lack of balance by seeking to show that the 475 lots yet to be created will be contributing an equitable proportion of the totality of open space and drainage land to be acquired by council. The total includes open space land which will be financed from sources other than s 94 contributions. The consequence is that the future developers will bear a disproportionate and unreasonable part of the cost of acquiring land for drainage purposes under the council formula. Hence the amount of contribution required by council does not fairly and reasonably relate to the development.

The applicant argues further that the subdivision of the subject land will not create any demand for a retarding basin accounted for in CP 8A at half the cost of acquiring the land. This area, approximately 13 ha, will be used for the dual purpose of the retarding basin and sporting fields. Because the subject land does not drain to that area, the applicant claims it is not reasonable to include half the cost of acquiring that land in accordance with CP 8A.

It is reasonable for the council to establish an overall drainage system for a local area and then to seek to recover the cost from all developers within the area. It is unrealistic to insist that each development contribute only to costs which can be directly attributed to it. The drainage system for the whole area will provide benefits, both direct and indirect, for all parts of the DCP area. The increase in the intensity of development within an area necessitates that the whole area be properly serviced with an efficient drainage system. It is not necessary for the council to prove a direct connection. It is sufficient to show that the drainage scheme will service the area as a whole. The subdivision of this land will increase the demand for the area covered by DCP 8 at Lisarow to be adequately drained. Drainage makes a contribution to the amenity of the whole area including, for example, roads and public areas not within the subdivision itself.

The calculation of the contribution for capital works in CP 8A allows a credit for existing funds available for drainage works and an estimation of contributions payable for sites with development consents or applications before council. The applicant complains that the council has not attributed an appropriate proportion to existing development with the consequence that the remaining lots will share a disproportionate burden of the cost. The total estimated cost of constructing the drainage system is $480,727. It is appropriate, on the ground of reasonableness, for the total cost to be apportioned between 947 lots. Calculations made by the applicant, after applying an indexation figure, show this would amount to a contribution of $20,178 for 38 lots. The Court adopts that figure.

The total contribution for drainage after making due allowance for dedication of Lot 42 will be $19,734 ($20,178 - $444 = $19,734).

The total estimated cost of constructing identified roadworks within the area covered by DCP 8 is $1,018,400.

Again, given that there are 947 lots in the DCP area, this equates to a contribution of $1,075 for each lot. After indexation the applicant has calculated that the total contribution for 38 lots on this basis should be $42,712.

Contributions Plan 8B (CP 8B) has been structured so that the total cost of all proposed works, less the amount of funds currently held by council or owing from approved plans, is to be attributed to the remaining 475 lots. I agree with the applicant that this method of calculation has the effect of placing an unfair and thus unreasonable burden on the present development and should not be adopted. Where there is a disproportionate burden on the land to be developed, it cannot be said to reasonably relate to the development.

By seeking to rationalise its approach by adding the estimated value of RTA works to the proportion of costs attributed to past s 94 contributors, the council has demonstrated its own error. The result is an unreasonable loading on contributions by future developers.

The contribution pursuant to s 94 in respect of roadworks will be $42,712 in lieu of $62,055 claimed by the council.

Contributions Plan 8C (CP 8C) states that the total cost of capital works will amount to $820,000. Once again the council has reduced this cost by the existing contributions and a surplus derived from land acquisition to produce a contribution rate of $826 per lot for 475 lots.

Notwithstanding that it will increase the actual amount of contribution, the applicant has apportioned the total cost over 947 lots which, after indexation, produces a contribution of $32,908 for 38 lots at $866 per lot.

The council has apportioned the $120,000 cost of embellishing open space land with recreation facilities in the same way to arrive at a contribution of $6,020. The applicant's calculation is the appropriate one and accordingly the contribution will be set in this respect at $4,054.

CP 8C adopts, as a standard, the provision of 2.83 ha of open space/public reserve land for every 1,000 persons. This equates to 105 m2 for each lot. The current council valuation estimate of the cost of open space land to be acquired is $7.50/m2. Following the earlier determination in relation to the dedication of Lots 1, 2, and 3 and part of Lot 4 and Lot 42, no land will be dedicated to council upon registration of the Deposited Plan for the purpose of open space. Accordingly, if the council is justified in claiming a contribution for future open space, the appropriate contribution should be $29,925.

Council has adopted a commendable policy of providing open space beyond the standard of 2.83 ha for every 1,000 persons. Despite any suggestion by the applicant that the requirement for open space land at Lisarow has already been satisfied, CP 8C justifiably takes account of the demand for open space land according to the standard. The collection of a contribution on this basis will allow council to purchase further land from time to time. It also reflects the cost of land already acquired. A contribution levied in accordance with the standard, therefore, is a reasonable one.

A reasonable s 94 contribution in respect of community and recreation facilities is $66,887 made up as follows:-

The amount of s 94 contributions, except for open space land, have been allowed otherwise than in accordance with the formulae in CP 8A, CP 8B or CP 8C. The claim by the council has been disallowed or amended by the Court because it is unreasonable, notwithstanding that it was determined in accordance with the plan. This reflects the effect of s 94(8) of the EPA Act which relates back to s 94(2)(b). Section 94(2) stipulates that a condition requiring the payment of a monetary contribution shall be imposed only to require a reasonable contribution for the provision, extension or augmentation of public amenities and public services.

The amendments to s 94, which had effect from 1 July 1993, produce the result that a council must determine contributions in accordance with a contributions plan approved under s 94AB. That is an end to the matter. Apart from the discretion whether or not to impose a condition, the council has no discretion under s 94(7). The contributions must be determined in accordance with the contributions plan. On appeal to this Court, a condition may be disallowed or amended because it is unreasonable even if it was determined in accordance with the plan. Notwithstanding the disallowance or amendment of a condition pursuant to s 94(8), the contributions plan remains in force.

The effect of the present decision is to disallow or amend the conditions imposed by council only in respect of this development. Any future developer of other land covered by DCP 8 will still be forced to suffer the consequences of the proven injustice and unreasonableness inherent in the Contributions Plans, unless there is a further appeal.

This anomalous situation needs to be addressed. If there is a successful attack on a condition in this Court on appeal which goes to the reasonableness of the contributions plan itself, the plan nevertheless remains on foot.

Each development application must be determined on its merits and according to circumstances. However, where the attack is as fundamental as the attack substantiated in this case, a general revision may be required. No problems remain in respect of the subject application because they have been resolved. The difficulty and potential for injustice lies for future applications. It behoves the council to urgently address the problems identified with CPs 8A, 8B and 8C, in the public interest.

The appeal of the applicant has been successful, in respect of most of the issues.

An order should be made determining the development application by the granting of consent subject to conditions in accordance with the findings of the Court.

It is appropriate that the parties be given an opportunity to confer and to agree, if practicable, on the form of order that should be made, particularly in regard to the final wording of conditions.

Condition 13(iv)(a) should specify the location of the earth berm and the connecting pipe under the road opposite Lot 30.

A Plan which correctly shows the land to be subdivided by excluding Lot 27 should be prepared.

The area to be dedicated for road widening pursuant to condition 18 has not been identified with sufficient clarity to enable the dedication to take place upon registration of the linen Plan. This should be done.

The form of the final order will be such that it incorporates a consent under Pt 4 of the EPA Act and an approval under Pt XII of the Local Government Act 1919.

The parties are granted leave to bring in consent orders which reflect the Court's findings or alternatively liberty to apply on two (2) days notice.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 27 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

Local Government Act 1919

TREHY & INGOLD v. GOSFORD CITY COUNCIL [1995] NSWLEC 113 (12 July 1995)

TREHY & INGOLD v. GOSFORD CITY COUNCIL [1995] NSWLEC 113 (12 July 1995)

At a glance

Court

Decision date

Before

Source

Judgment (133 paragraphs)

Legislation Cited (1)

Cases Cited (1)

TREHY & INGOLD v. GOSFORD CITY COUNCIL [1995] NSWLEC 113 (12 July 1995)