Young v Ballina Shire Council

The development consent

1. The development consent granted on 27 October 2017 included consent for the change of use of the existing shed to a dwelling forming part of an attached dual occupancy, vegetation removal to accommodate infrastructure for the dual occupancy and associated bushfire hazard reduction, and the construction of a vehicle crossing and internal driveway area to service the dual occupancy.
2. The development application, which was the subject of the consent, also sought the clearing of vegetation to the north of the proposed dwelling to allow the installation of water tanks, the construction of the infrastructure associated with the proposed dwelling, the creation of a cleared area for the purposes of the installation of solar panels, and minor clearing and excavation associated with the installation of an upgrade to the existing on-site sewer system. Curiously, the development consent was not clear in whether consent was granted for all of these works, and (except for the BASIX certificate) the documents that formed part of the application were not incorporated by the terms of the consent.
3. Similarly, the development consent was not subject to a condition requiring that the work be carried out in accordance with specified plans or reports. Nevertheless, the plans stamped by the Council depict a shed with no internal walls but for an alcove in one corner to be used for bathroom facilities. The plans show that the shed, and therefore the proposed dwelling forming part of the dual occupancy, has an internal floor area of 29.6m2 and a deck with an area of 13.5m2.
4. The conditions imposed on the grant of consent include:

• Condition 5, which requires the payment of development contributions, and
• Condition 9, which provides that "The dwellings are to be 'attached' as required by the Ballina Shire Council's Local Environmental Plan 2012 and the Ballina Shire Council Development Control Plan. Prior to [the] issue [of] a Construction Certificate, plans are to be submitted to the Principal Certified Authority showing details of a covered walkway."

1. The modification application the subject of the appeal seeks to delete both of these conditions.

The role of the Court on appeal

1. In considering the appeal, the role of the Court is to exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.55(2) of the EPA Act (s 39 of the LEC Act). Subsection 4.55(2) provides as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification.
2. The exercise of the power in subs 4.55(2) requires the Court, in exercising the functions of the consent authority, to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted". If the Court is not so satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on the merits.
3. Upon reaching the satisfaction that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted" and that the other matters in subs 4.55(2) are satisfied, subs (3) provides that: In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
4. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

Permissibility of dual occupancies on the site

1. The site is zoned RU1 Primary Production pursuant to the Ballina Local Environmental Plan 2012 ("BLEP 2012"). Secondary dwellings are an innominate prohibited use in the RU1 zone.
2. At the date of the grant of development consent on 27 October 2017, the zoning table for the RU1 zone nominated "Dual occupancies (attached)" as a use permissible on the site with development consent.
3. A dual occupancy (attached) is defined in the BLEP 2012 as follows: dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling.
4. The general term, dual occupancy, is defined as: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached)
5. This meant that, in the absence of either "dual occupancy" or "dual occupancy (detached)" as a nominated permissible use in the zone, a dual occupancy (detached) was therefore an innominate prohibited use.
6. However, on 1 September 2017, an amendment to the BLEP 2012 amended the land use table so that the general term, dual occupancy, was listed as the nominated permissible use in the RU1 zone. As such, both dual occupancy (attached) and dual occupancy (detached) are permissible on the site.

The power to impose a condition requiring the payment of contributions

1. The power to require the payment of contributions on the grant of development consent arises pursuant to s 7.11 of the EPA Act. It provides: 7.11 Contribution towards provision or improvement of amenities or services (cf previous s 94) (1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned. (3) If: (a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and (b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations). (4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned. …
2. However, pursuant to s 7.11(1) of the EPA Act, such a condition can be imposed by a local council "only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division)."
3. The two applicable contributions plans are the Ballina Shire Open Space and Community Facilities Contributions Plan 2016 (dated November 2016) ("Open Space Plan"), and the Ballina Shire Roads Contribution Plan Version 4.0 (adopted 24 September 2016) ("Roads Plan").

Is the proposed modified development substantially the same?

1. As set out above, the modification application cannot be granted unless the Court, in exercising the functions of the consent authority, is satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted".
2. In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, the Court of Appeal endorsed the approach of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, in which His Honour found that the word "substantially" in this context means "essentially or materially or having the same essence."
3. In considering this in the context of a predecessor to s 4.55(2)(a) in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ("Moto Projects"), Bignold J observed: "54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)." (emphasis added)
4. Therefore, in undertaking the comparative task, both the qualitative and quantitative changes need to be considered to determine whether the development as modified is substantially the same as that for which consent was granted. In Moto Projects, Bignold J determined that a modification application to remove separate ingress for vehicular traffic resulted in a proposal that was not substantially the same because that separate ingress was "a material and essential physical element of the approved development" (at [59]).
5. The Council originally raised a contention that the change in use, and the removal of condition 9 and therefore of the walkway attaching the dwellings, meant that the modification application would not result in a development that was "substantially the same" as that for which development consent was granted. However, at the conciliation conference, the Council indicated that they no longer pressed this contention.
6. In any event, for the following reasons, I am satisfied that "the development to which the consent as modified relates is substantially the same development" as that for which consent was granted.
7. On a quantitative assessment, the covered walkway comprises only one small aspect of the development for which consent was granted, and its removal is a quantitatively minor change to the development as a whole.
8. On a qualitative assessment, a question arises as to whether the covered walkway, which was essential to the characterisation of the use as a "dual occupancy (attached)", was an essential element of the development. At the time of the grant of development consent, the walkway was required for the development to be permissible as an attached dual occupancy, as no other form of dual occupancy was permissible on the site.
9. However, the mere fact that the walkway was a requirement for permissibility, does not mean that it formed part of the "essence" of the development. In Moto Projects, the "essential physical element" was of significance because Bignold J determined that "[i]ts proposed elimination materially changes the approved development." As such, I consider that there is a distinction between a technically essential element that is a peripheral aspect of the physical development, and something that forms part of the "essence" of the physical development. Whereas the removal of the latter will materially change a development such that it is not substantially the same as its approved form, the removal of the former is unlikely to do so. In my view, the present application falls within the former.
10. In the present application, I consider that the essence of the physical development is for the change of use of the shed to be a dwelling that forms part of a dual occupancy. Whilst the walkway was technically "essential" for permissibility of the dual occupancy, it did not form part of the "essence" of the physical development, which was for the change of use to a dwelling and the associated works. As such, its removal does not change the essence of the development, which remains for the change of use to a dwelling forming part of a dual occupancy. Further, the walkway is no longer technically "essential" for permissibility, as both forms of dual occupancies are now permissible on the site. For the same reasons, the change of the use from a "dual occupancy (attached)" to another type of dual occupancy (dual occupancy (detached)), does not change the essence of the development, which remains for the purpose of a dual occupancy.
11. Therefore, I am satisfied that the modification application results in a proposed modified development that is substantially the same as that for which development consent was granted, and there is therefore power to grant the modification application. As no other issue was raised concerning the change in the description of the use and the removal of the walkway (and the removal of condition 9), that part of the application can be granted as sought.

Are the contributions unreasonable?

1. To impose a contribution pursuant to s 7.11, the consent authority must be "satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area." This is often described as requiring a "nexus" between the development and the demand for public amenities and services. Tobias JA (with whom Mason P and Young CJ agreed) provided the following description in Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313 at [41]: "I cannot accede to the proposition that the word "require", especially when used in conjunction with the expression "increase the demand for", means no more than "will benefit from". Both statutory phrases - "require the provision of" and "increase the demand for" - require the decision-maker to focus on the particular development and to then ask what types of public amenities or public services that development will or is likely to require the provision of or increase the demand for."
2. Additionally, on appeal, the Court is given a broad power to disallow or amend a condition imposed under s 7.11. This power is contained in s 7.13(3) as follows: (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.
3. For there to be power to disallow or amend the contributions in condition 5 (and the attached Schedule to the conditions) pursuant to s 7.13(3), I must be satisfied that the contributions are "unreasonable in the particular circumstances of that case".
4. The contributions that have been applied in condition 5 result from a strict application of the Open Space Plan and the Roads Plan. They require the payment of the following:
5. The "units payable" figure is calculated differently for each of the plans. In the Open Space Plan, the "equivalent residential allotment" assumes an occupancy of 2.7 persons per dwelling. As a 1 bedroom dwelling has an assumed occupancy of 1.3 persons per dwelling, the units payable is the quotient 1.3/2.7.
6. In the Roads Plan, the "equivalent residential allotment" assumes a trip generation rate of 6.45 trips per dwelling. As a 1-2 bedroom dwelling has an adopted daily rate of 3.9 trips, the units payable is the quotient 3.9/6.45.

Mr Young's position that the contributions are unreasonable

1. There are two aspects to Mr Young's position. The first is that he submits that s 7.11(1) is not satisfied as there is no "nexus" between the proposed development and the works funded by the contributions plan, and that therefore the imposition of a requirement to pay contributions is unlawful.
2. The second is that he submits that, even if s 7.11 is satisfied, the contributions, as calculated, are unreasonable for the following reasons:

• Both the Roads Plan and the Open Space Plan have been applied without regard for the location of the development away from the coast and in an area where there is not the same demand for roads, open space and other services.
• The application of the Roads Plan does not recognise the small size of the dwelling, which does not equate to a "1 or 2 bedroom dwelling" which formed the basis for the roads contributions.
• The "type of development" the subject of the consent is comparable to other development for which the Council has a policy for the waiver of developer contributions.

1. In support of his submission that s 7.11(1) is not satisfied, Mr Young asserts that the contributions levied under each plan are for works that are largely located on the coast, and that the users of the approved development are far removed from these works. Mr Young points out that with the Roads Plan, the plans that show the location of the roadworks are "Lennox Head/Skennars Head", "Cumbalum/Lennox Head" and "Ballina", which are each geographical locations adjacent to the coast. He says that the only plan that does not show a portion of the coast is the "Tintebar/Teven" plan, which is a plan for proposed works that are not solely attributable to future development. Mr Young similarly points out that with respect to the Open Space Plan, the five plans of work show that the works will be on three areas of coastal land, one area in Wardell, and another catchment on the Western side of the shire. In light of this, Mr Young submits that there is no "nexus" between the approved development and the works, and that therefore the requirement of s 7.11(1) that the development is "likely to require the provision of or increase the demand for public amenities and public services within the area" is not met.
2. Mr Young relies on the expert report of Mr Williams in support of his position that the contributions imposed by condition 5 are unreasonable. Mr Williams opines that the Roads Plan is not reasonable in its application to "small residential developments located in outer rural areas of the shire because of this global method of calculation". He forms this opinion for four reasons. Firstly, he points out that there is no adjustment by way of a reduction for a very small dwelling, which he considers would be appropriate given that the dwelling forming part of the dual occupancy is less than 20% of the minimum standard building footprint for such a use, which he considers is not dissimilar to the traffic impacts of enlarging an existing dwelling house with a new master bedroom and ensuite. Secondly, he notes that there is no specific development type in the Roads Plan for dual occupancies, and the existing dwelling is not recognised as warranting a credit under the plan. Thirdly, he says that the approved development is on the western fringe of the shire and well removed from the growth corridors in the Ballina and Lennox Head areas that have led to the proposed road network upgrades. According, he opines that there should be a reduction for residential developments that are far removed from the growth areas. Fourthly, Mr Williams points out that the Council has a policy that permits the waiver of contributions for secondary dwellings of maximum size 60m2, and that this strengthens the unreasonableness of applying a 100% road contribution for a small 29.6m2 dwelling.
3. Mr Williams' view is therefore that a reasonable assessment for a roads contribution would be to apply a 34% discount attributable to the small size of the development, and a further 78% discount given the distant location of the development from the traffic growth areas.
4. The 78% discount is derived from Mr Williams' reliance on an earlier adopted Ballina Roads Contribution Plan (Version 2) from October 2002, which assessed the road usage levy for rural landholdings of the shire on the new network infrastructure as being at only 22% of the contribution rate of the higher impacting residential release areas (based on the rate for a rural lot compared to a Skennars Head lot).
5. Mr Young seeks to also apply this 22% rate (78% discount) to the contributions calculated under the Open Space Plan.
6. With respect to both the Roads Plan and the Open Space Plan, Mr Young submits that the discount of 78% (22% adjustment) reflects the lack of nexus between the location of the proposed dwelling and the majority of the works identified in the plans.
7. Alternatively, Mr Young seeks that the contributions be waived on the basis of the policy to waive contributions for secondary dwellings, and relies on the Secondary Dwellings (Granny Flats) Information Sheet by Ballina Shire Council. Whilst he acknowledges that the policy does not strictly apply, he submits that the policy is instructive with respect to both the demand created by a secondary dwelling and what might be considered a reasonable position for applying contributions to a development of the size of that approved.

The Council's position that the contributions are reasonable

1. The Council's position is that there is no evidence of a lack of nexus between the proposed works the subject of the contributions plans and the approved development, and there is no evidence that the application of the Roads Plan or the Open Space plan results in contributions that are unreasonable based on the size or location of the development. Further, the Council submits that there is no evidence to support the discounts sought by Mr Young.
2. The Council submits that, for the purpose of meeting the requirements of s 7.11(1), the proposed development is likely to increase the demand for public amenities and public services by the additional self-contained dwelling, or separate domicile, with separate vehicular access. It submits that there is no evidence to support the assertion that the intended occupants of the dwelling will not increase the demand, or would not use the infrastructure proposed. The Council says that there is no evidence of where occupants will access services, and that the measure of distance is not sufficient to establish that there is no nexus.
3. In support of its position that there is a sufficient nexus between the development and the infrastructure works outlined in the plans, the Council relies on the evidence of Mr Kelly, who states the following in his affidavit: "All contribution plans are based on contribution areas that apply to development across the whole of Ballina Shire. The works programs relate to Shire-wide programs. The small geographic area of the Shire enables the adopted contributions plans to benefit the community of Ballina Shire. The integrity of the contributions plans are based on the approved use and the typical demands generated on services by that use and they are designed to ensure that the broader Ballina community is not unreasonably burdened by the provision of infrastructure that is required as the result of development. Anticipated future development in the Ballina Shire will increase demand on infrastructure, for example roads, open space and community facilities. Council requires contributions from development if it is of a kind allowed by and determined in accordance with an adopted contribution plan. Council promotes economic development and considers that new development should make a reasonable contribution towards the provision of new and or augmented infrastructure."
4. Further, Mr Kelly makes it clear that certain works without a nexus to the development have not been the subject of a contribution calculated for condition 5. He states as follows: "This development is located in a rural zone and therefore, for example:- (a) The Local parks contribution and multi-purpose community centres and meeting halls do not apply. These are not applicable to a rural development and hence are excluded from the contributions assessed for the development. (b) As the development is not connected to the reticulated water supply or sewer network, the Development Servicing Plan (DSP) charges for water and sewer headworks are also not applicable."
5. With respect to the reasonableness of the contributions calculated pursuant to the Roads Plan, the Council submits that in order to establish that the contributions are unreasonable, there should be some evidence that the proposed dwelling will not, or is not likely to, generate the number of trips assumed by the plan (3.9 trip ends) or will not use the infrastructure the subject of the plan. The Council submits that there is no such evidence, and there is no town planning or engineering evidence proffered by Mr Young to justify why the proposed dwelling will not, or is not likely to, generate 3.9 trip ends.
6. The Council submits that the proper construction of the Roads Plan is that the calculation is based on a classification as "larger residences" or "smaller residences", where larger residences are dwellings of three bedrooms or more, and smaller residences are defined as "smaller multi dwelling type housing residences". As such, the Council submits that the mere fact that there is no separate rate for one bedroom dwellings or 'studio' type dwellings does not mean that the contributions calculated are unreasonable, and does not form a basis to impose a discount based on the small size of the dwelling. The Council also points out that dual occupancies are two dwellings, and as such each component dwelling of the dual occupancy is treated as an 'equivalent residential allotment'.
7. Further, the Council submits that Mr Williams does not provide any calculation or justification as to how he arrives at a 34% discount (i.e. proportion of 66%) on the basis of the size of the dwelling.
8. With respect to the discount of 78% (i.e. a rate of 22%) that Mr Young seeks on the application of both the Roads Plan and the Open Space Plan, the Council again submits that there is no evidence that future residents of the dwelling will have less road usage or open space usage than residents of dwellings located toward the coast. In particular, the Council submits that Mr Williams does not provide any assessment of the land uses within the growth areas and whether it is reasonable that a resident in Alstonvale, being a small outlying village, would avail themselves of services and facilities in those areas such that they ought also contribute to the increased use of the infrastructure. The Council says that there is no basis upon which it would be appropriate to use the rate of 22% on the basis of proximity to the road works. The Council submits that any reduced rate for rural development under the former plan is irrelevant, given that the works schedule in that former plan is different to that in the current Roads Plan. Finally, the Council submits that the mere observation that the Roads Plan does not make a proportioned reduction for development located far removed from the growth areas is not sufficient to establish that the contributions payable under the Plan are unreasonable, given that there is no analysis as to whether those areas have or are likely to have services and facilities that will be accessed through 'trip ends' by residents of Alstonvale.
9. Finally, with respect to the policy for the waiver of contributions otherwise payable for secondary dwellings, the Council submits that it is irrelevant. The Council points out that it doesn't apply to the RU1 zone or to development other than secondary dwellings. The Council also says that the policy has the aim of "increasing affordable housing within Ballina Shire, maintaining site occupancy rates and making better use of infrastructure within established areas." In the Council's submission, the aim of "making better use of infrastructure within established areas" is not achieved by development in the land zoned RU1. As such, the Council submits that to apply the policy would undermine the objects of the contributions plans. Further, the Council submits that the fact that the Council has waived other contributions is not relevant to the particular circumstances of the likely increase in demand generated by the proposal and whether the contribution is reasonable.

Determination

1. Firstly, I am satisfied that s 7.11(1) is met and that there is a nexus between the approved development and the works that are the subject of the Roads Plan and the Open Space Plan. With respect to the Roads Plan, the plan itself outlines the nexus between new dwellings and the need for improvement of the Ballina road network. At Part 3.2 it states the following: "The existing road network has been generally designed to accommodate the needs generated by the current (2010) land use pattern. Additional development - including new dwellings, new tourist accommodation development and new retail, commercial and other employment development - will generate additional vehicle trips and therefore vehicular traffic on the Ballina road network. … Most major urban road corridors will be required to carry more traffic and some of these corridors will be overloaded unless additional capacity is provided. In some areas new road corridors will need to be established to service specific development. More detail on the model methodology… is included in the report [that] identified a range of works that, as a result of the additional traffic generated by planned development, are required to provide a safe and convenient road network."
2. I am therefore satisfied that there is a nexus between development for the purposes of a new dwelling and the requirement to improve the road network in the Ballina Shire area. There is no evidence that future residents of a small dwelling in Alstonvale will not utilise the road network to access areas toward the coast where the precise improvements will take place.
3. With respect to the Open Space Plan, the contributions considered by the Council to have a nexus to the proposed development relate to the following works:

• Plateau District Parks,
• Plateau Playing Fields,
• Plateau District Community Centres and Meeting Halls,
• Regional Level Recreational Facilities (SHIRE),
• Regional Level Community Facilities (SHIRE), and
• The administration of the Open Space Plan.

1. The first three of the above categories concern the district in which the proposed development is located. The second two concern regional facilities across the Ballina Shire region, and the last concerns the administration of the Open Space Plan. The precise work schedule within each of the above categories is outlined in Appendix A to the Open Space Plan. Part 3.2 of the Open Space Plan outlines why each of the works are needed to "meet the demands of the additional resident population". There is no evidence to the contrary. As such, I am satisfied that, given that these are district and regional facilities utilised across the district and region respectively, and that they are considered by the Open Space Plan to be needed to accommodate the demands of the increasing population, there is a nexus between the approved residential development in Alstonvale and the works. For the same reasons, I am satisfied that the development "will or is likely to require the provision of or increase the demand for public amenities and public services within the area" in satisfaction of s 7.11(1) of the EPA Act.
2. Secondly, I accept that there is nothing unreasonable about the way in which the Council has applied the Roads Plan and the Open Space Plan to the development. I accept that the proposed dwelling, whilst similar to a studio apartment, is a one bedroom dwelling. The Council used the appropriate categories to calculate the precise proportion of the "equivalent residential allotment" that is applicable to a one bedroom dwelling. Even if an assumption could be made that a dwelling of the type approved is an 'outlier' in the range of types of dwellings within the Ballina Shire, the fact that the categories only account for averages across a range of development sizes (such as by having a trip generation average across 1-2 bedroom dwellings, and another across dwellings of three or more bedrooms), and do not account for outliers within those categories, does not mean that the application of the particular category to an outlier is inherently unreasonable. Similarly, the mere fact that there is no reduction in contributions for rural dwellings does not mean that applying the contributions to rural dwellings is inherently unreasonable. Indeed, any inherent unreasonableness (if established) is outside the scope of the Court's power pursuant to s 7.13(3), which "does not authorise the Court to disallow or amend the contributions plan or direction".
3. Instead, something more, by way of evidence, is required to establish that the contributions levied pursuant to the plans are unreasonable in the circumstances of the case. I accept the submission of the Council in that regard. Mr Williams' evidence is not sufficient, as it opines unreasonableness of the application of the Roads Plan based on inherent unreasonableness, and without evidence as to what the trip generation of the approved development will be or why a future occupant would not utilise the road network. In relation to the Open Space Plan, there is no evidence at all with respect to unreasonableness.
4. Thirdly, I accept that there is no evidence to support the discounts sought by Mr Young or the discounts opined by Mr Williams as being appropriate. Additionally, I accept that the discount calculated on the previous roads plan is not appropriate, given that the works proposed on the previous plan are different to those in the Roads Plan.
5. Fourthly, I am not satisfied that the existence of a policy that allows contributions to be fully or partially waived for secondary dwellings in other zones is something that renders the contributions payable "unreasonable in the particular circumstances of that case". The unreasonableness in s 7.13(3) must stem from "the particular circumstances of [the] case." This is described by Commissioner Dixon (as she then was) in considering the predecessor to s 7.13(3) in S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324 as follows: "…my discretion under s94B of the [EPA Act] is not unfettered. I must adhere to the subject matter, scope and purpose of the imposition of the condition requiring the payment of a monetary contribution under s 94(1) of the [EPA Act]." This concept of "reasonableness" was confirmed on appeal (see SJ Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2 at [93]).
6. As such, to come within the ambit of s 7.13(3), the source of the unreasonableness must be the circumstances of the present case. The fact that a policy allows a partial or full waiver of contributions for comparable development in other zones, but does not apply to the present development, is a source of unreasonableness that arises from the policy itself but does not arise from the circumstances of the present case. That is, the source of the unreasonableness is extraneous to the circumstances of the present case.
7. Accordingly, for the reasons above, each of the challenges to the contributions imposed by condition 5 of the development consent fail.

Outcome of the appeal

1. For the reasons expressed above, it is appropriate to allow the appeal to grant the modification application insofar as it concerns the removal of condition 9, the amendment of the plan to remove the walkway and the change of use to a 'dual occupancy'. However, I do not accept that condition 5, or the Schedule referred to therein, ought to be removed or varied.
2. The parties have also agreed to the insertion of a condition that requires the development to be carried out in accordance with the amended plans. They have also agreed to the deletion of condition 6, which requires the payment of contributions specified in Schedule 1 for the provision of bulk water supply, water reticulation and sewer infrastructure, where those contributions are not payable and did not, in fact, form part of the contributions calculated to be payable in Schedule 1.
3. The Court orders that: 1. The appeal is upheld. 2. The application to modify the development consent granted by Ballina Shire Council in DA 2017/321 by changing the proposed use to dual occupancy and removing the covered walkway, is granted subject to the conditions in Annexure A. 3. The development consent granted by Ballina Shire Council in DA 2017/321 for the change of use of an existing shed to a dual occupancy and associated works at 34 Willowbank Drive, Astonvale, is now subject to the consolidated conditions of consent in Annexure B. 4. The exhibits are returned. ………………………. Commissioner Gray Annexure A Annexure B 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: 02 April 2019