Western Grammar School v Blacktown City Council

Judgment 1On 12 September 2014 I delivered judgment in an appeal by Western Grammar School, the applicant, made under s 97 of the Environmental and Assessment Act 1979 (the Act). The proceedings were Western Grammar School v Blacktown City Council [2014] NSWLEC 1191. The case concerned the expansion of a private school in Plumpton. 2The judgment records my intention to grant a conditional consent to the development. However, at the time of handing down my reasons for judgment the parties had not finally resolved the terms of the conditions of consent. For that reason, I deferred making final orders and invited the parties to provide me with their written submissions in respect of any conditions in dispute. 3On 10 October 2014 I received the parties' written submissions and I am now in a position to finalize the terms of the conditions and make final orders reflecting my reasons for judgment. The Conditions in dispute 4According to the parties' written submissions conditions 2.1.2, 4.1.1, 4.1.2 4.1.4 and 7.4.3 in (Exhibit 7) are in dispute. Condition 2.1.2 5Condition 2.1.2 states as follows: 2.1.2 The number of students permitted to attend the school the subject of this development consent is restricted to a maximum of 320 students at all times and only for years kindergarten to year 4. 6The applicant proposes a maximum of 320 students at all times from kindergarten to year 10. It submits that there is no planning basis to impose a limitation to year 4. 7The Council seeks to restrict the school to year 4 but offers no planning basis for such a restriction. 8After a consideration of the evidence, I must agree with the applicant that there is simply no evidence to support a restriction or limitation on the grades at the school from kindergarten to year 4. 9Therefore, I allow the applicant's amendment to condition 2.1.2 to permit a maximum of 320 students at all times and only for years kindergarten to year 10. Conditions 4.1.1 and 4.1.2 10Conditions 4.1.1 and 4.1.2 in Exhibit 7 state as follows: 4.1 Section 94 Contributions 4.1.1 The following monetary contributions pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE Council DOES NOT accept payment of S.94 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) or Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first. Contribution Item Base Amount Relevant C I.P. Base Date (i) Trunk Drainage $21,124 C.PNo.1 1 June 2010 (ii) Local Roads $40,676 C.PNo.2 1 June 2007 (Cannery Road) (Hi) Local Roads $49,874 C.PNo.2 1 June 2007 (Bottles Road) The contributions will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings). Copies of the following relevant Contributions Plan may be inspected/purchased from Council's Development Services Unit: S.94 CP No. 1 - 1980s Release Areas S.94 CP No. 2 - Local Roadworks The Section 94 Contributions have been based on the total developable area and the road frontage nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 Contributions will be adjusted accordingly. Developable Area: 4112sqm Road Frontage: 51.1m (Cannery Road) 51.1m (Bottles Road) 4.1.2 Any Compliance Certificate issued for the payment of Section 94 Contributions shall be accompanied by a letter from Council acknowledging that the correct Section 94 Contributions have been paid for that particular development. 11Relevantly, when the Court first approved the use of the site for a school on 29 November 2011, in Best Western Services Pty Ltd v Blacktown City Council [2011] NSWLEC 1380, it approved a development application for an independent school with a maximum of 125 students on the land at 15 Cannery Road, Plumpton subject to conditions of consent ("the original consent"). 12The Council did not require a condition on the original consent requiring payment of a monetary contribution for "Trunk Drainage" and "Local Roads" because the original consent involved alterations and additions only to the two existing dwelling houses and associated outbuildings on the subject land and it was acknowledged by the applicant and the Council at that time that the development, the subject of the original consent, was not the final form of development proposed for the land. 13Condition 4.1.1 of the original consent required payment of a monetary contribution in respect of "Major Roads" and "Overbridge" pursuant to s 94 of the Environmental Planning Act and Assessment 1979 and Blacktown City Council's Section 94 Contributions Plan No.1 - 1980's Release Areas. 14Condition 4.1.1 of the original consent provides as follows: 4.1 Section 94 Contributions 4.1.1 The following monetary contributions pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE Council DOES NOT accept payment of S.94 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) or Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first. Contribution Item Base Amount Relevant CP. Base Date (i) Major Roads $8,715 No. 1 June2010 (ii) Overbridge $1,394 No. 1 June 2010 The contribution(s) will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings). Copies of the following relevant Contributions Plan(s) may be inspected/purchased from Council's Development Services Unit: S.94 CP No. 1 - 1980s Release Areas The Section 94 Contribution(s) have been based on the total developable area, the site's road frontage and/or the potential additional population nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 Contribution(s) will be adjusted accordingly. Developable Area: 4112sqm Additional Population: Nil Power to Impose Conditions 4.1.1 and 4.1.2 15The development under review comprises the following works: