33 Against this, I have also considered Mr Tomasetti's alternate submissions resulting from the authority in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41, which stated:
83 Contrary to what is stated in the headnote I do not read Bignold J's decision as refusing to follow the observations of Lord Scarman. But however that may be it is, in my opinion one thing to assert that a party who has accepted the benefit of a transaction must also accept its burden, it is quite another to conclude that a condition not authorised by law cannot be challenged if the development has been carried out. The discretion of the Court derives from the Act and cognate legislation and not from equitable doctrines. In planning law there is an evident practical difficulty in attempting to apply the "benefit/burden" doctrine as, for example, where a third party challenges the validity of a development consent which may have been imposed without lawful entitlement consequent of an arrangement being entered into between a developer and a council.
34 Also the reference to the matter of Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 where Her Honour Justice Jagot said:
68 The Council submitted that the discretionary power in s 94B(3) of the EPA Act should not be exercised in the applicant's favour (if condition 69 was found to be unreasonable to any extent) because the applicant had taken the benefit of the development consent knowing about the s 94 contributions payable and, thereafter, had modified the development consent without, until recently, raising any issue about the s 94 contributions. The Council said that there had been no change of circumstances since the grant of development consent. Hence, the facts were analogous to those in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGERA 236, where Bignold J (at 245) found that although the power in s 102 (then the relevant modification power) was not limited to cases in which circumstances had changed, a discretionary consideration that weighed strongly against granting the application in that matter was the conduct of the applicant in accepting the benefit of the development consent, and then belatedly seeking to avoid the burden imposed by that consent. Bignold J determined that it would be contrary to the public interest to enable the particular consent in that matter to be modified as sought.
69 In Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, Cripps AJA (with whom Spigelman CJ and Santow JA agreed) observed (at [82] to [84]) that it was one thing to assert that a party who has accepted the benefit of a transaction must accept its burden, and another to conclude that a condition not authorised by law cannot be challenged if development is carried out. Delay may be a relevant discretionary factor, but there is evident difficulty in attempting to apply any "benefit/burden" doctrine in planning law.
70 In this case, the Court granted the development consent. It seems to me there may be many reasons why, in that context, an applicant may not place in issue the s 94 contributions during the s 97 appeal. I do not consider that an applicant, thereafter, is necessary precluded from seeking to modify s 94 conditions by not having raised the issue during the s 97 appeal. Further, the applicant became aware, only relatively recently, that the Council itself had agreed to the modification of a s 94 condition imposed on a nearby development, which reduced the overall s 94 contributions payable by some 25%. The applicant said that, if necessary, that fact itself constituted a relevant change of circumstances. Consistent with the reasoning in Progress and Securities, I agree that the applicant need not point to any change of circumstances in order to modify the development consent. In the particular circumstances of this case, I can see no reason why I would not exercise my discretion in favour of the applicant, having found that, to a certain extent, condition 69 is unreasonable.
35 Having considered these authorities, I am satisfied it is appropriate to follow the authority stated by Jagot J and consider the merits of the s94 contributions. Although, I express some surprise that the modification relates to consent orders relating to the substantial s 94 contributions, which were confirmed by the parties.
Conclusions
36 Having considered the evidence and submissions, I am satisfied firstly that this s 96 application to modify the consent orders of 3 December 2008 relates to substantially the same development.