Resolution of issues
9 The dispute on fees revolved around the proportion of the Plan First component of the fees that should be paid with the first stage of a staged development application. The Court suggested that two-thirds of the Plan First component would be appropriate. At a further hearing on 9 February 2007 it emerged that, despite the Court's guidance on the principle to be applied to the calculation of fees, the fees were still in dispute because of a disagreement on development costs. Finally the dispute was resolved by agreement at a mention on 16 February 2007 on the amount of outstanding fees of $215,000. The parties agreed on the Court's issuing self-executing orders (ie the orders being stayed until the fees are paid), provided that I note in my judgment that these fees are due to the council whether or not the applicant proceeds with the project. I duly note that they are due.
10 The width of new internal roads S1 and S2; as well as S4 and S5 and the size of the new public park. The council favoured reducing the width of these, and adding the area gained to the public park. The applicant considered that this would make little difference to the park but would bring the apartment buildings on either side of these roads too close together. The Court accepted the applicant's position.
11 The distribution of the Floor Space Ratio (FSR) between the Northern and Southern sites. While the council was satisfied with the total FSR for the two sites, it had a concern about the unequal distribution of FSR between the two sites. The experts agreed that distributing the FSR equally between the two sites would be undesirable, since the Northern site is much more suitable for a higher FSR than the southern site. In my opinion, this consideration is paramount. I accept that there is a risk of a future applicant applying for additional FSR for the Southern site, but the risk is so small that it does not justify a solution that is inferior from an urban design point of view. I note that the FSRs of the two sites are interconnected. In determining the FSR for the Northern site, I have taken account of the FSR for the Southern site. The FSR for the Northern site exceeds that usually permitted and would not have been granted if the FSR on the Southern site had not been less than that usually permitted. I would regard any attempt to increase the FSR on the Southern site as unwarranted.
12 Drainage arrangements. The applicant objects to Deferred Commencement Condition 1 requiring a Flood Study, on the grounds that it has already fulfilled this obligation by the work done by Dr Joliffe. I accept this submission. Deferred Commencement Condition 1 is deleted.
13 Land contamination: while the council was not satisfied about the information on land contamination and the measures proposed to render the site appropriate for development, it agreed that a suitable condition might overcome its concerns. The conditions filed with the Court on 9 February 2007 include Deferred Commencement Condition 3, which deals with site remediation. The applicant does not object to this condition; hence it is imposed.
14 It emerged at the hearing on 9 February 2007 that, in addition to the above, three more conditions remain in dispute. The applicant objects to Deferred Commencement Condition 2, which imposes the requirement that the applicant enter into a Public Benefit Agreement with the council. The condition specifies the substance of such an agreement. With the exception of one requirement, the substance appears to be consistent with the terms of the application. The exception is a requirement for "a monetary contribution towards the Green Square Town Centre" that fails to specify the amount of contribution. It would be an error for the Court to impose a monetary contribution without specifying how much it is. For this reason I have deleted the requirement. If a Contribution Plan entitles the council to require a contribution towards the Green Square Town Centre, then the council can impose it on development consents for later stages. In any case, such a contribution, if it is justified, does not need to be paid before the buildings are approved in a later stage.
15 The second condition in dispute is Condition 15 relating to site rectification. The applicant suggests an alternative version requiring a bank guarantee "in a sum to be agreed". This lacks the certainty necessary in a planning consent. The council's version of the condition specifies the amount of the bank guarantee, so I have imposed that version. If that amount is too high in the applicant's view, it can request a reduction in a s96 application.
16 The third condition in dispute is Condition 17. There is little difference in content between the two versions; however, the applicant's version is more specific, so I have imposed it.