Appeal dismissed on development contributions under Environmental Planning Act

The Court dismissed an appeal against the imposition of development contributions under s 94 of the Environmental Planning and Assessment Act 1979, finding the contributions reasonable and consistent with the relevant contribution plan.

Land and [ADDRESS] of New South Wales

CITATION : [NAME_1] v [NAME_2] Council [2004] NSWLEC 565 APPLICANT [NAME_3] PARTIES : RESPONDENT [NAME_2] [NAME_2] Council FILE NUMBER(S) : 11508 of 2003 CORAM: Brown C KEY ISSUES: Development Application :- s 94 contributions reasonableness of contributions LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 94 [NAME_2] [NAME_2] Council Section 94 Development Contribution Plan Peterson v Parramatta City Council (1987) 61 LGRA 286; CASES CITED: [NAME_4] v Wingacarribee [NAME_2] Council (1993) 80 LGERA 75; [COMPANY_5] v Dumaresq [NAME_2] Council (1992) 78 LGERA DATES OF HEARING: 23/09/04 DATE OF

JUDGMENT: 10/22/2004

APPLICANT Self represented

LEGAL REPRESENTATIVES: RESPONDENT [NAME_6], solicitor SOLICITORS [NAME_7]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner [NAME_8]

22 October 2004

11508 of 2003 [NAME_3] v [NAME_2] [NAME_2] Council

JUDGMENT Background 1 This is an appeal against the imposition of condition 24 of Development Approval No. 10. 2003.230.1 granted by [NAME_2] [NAME_2] Council (the council) on 23 March 2004 for the subdivision of land known as part lot 17 DP 270338 [ADDRESS] and [ADDRESS], [ADDRESS] (the subject site).

2 The subject site comprises an area of 1.007 hectares and constitutes the final 19 lot subdivision of this particular precinct of [ADDRESS]. The lots are identified as lots 23 to 32 and lots 33 to 41 and are shown on Attachment 1. Over a period of around 15 years, the applicant has obtained 11 development consents on land adjoining the subject site and in the general area.

3 The matter was heard as an On Site Hearing although the proceedings were largely conducted at the [NAME_2] [ADDRESS] because of the technical nature of the issues. A view of the subject site and surrounding area was undertaken during the hearing with representatives from both parties.

Condition 24 4 Condition 24 requires the payment of contributions pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The contributions are: [NAME_9] $10,836.83 [NAME_9]-[NAME_2] Wide $9,299.61 [NAME_9] $106,504.96 [NAME_9] - [NAME_2] Wide $27,122.20 Roads $102,204.18 Cycleways $9,653.56 Civic & Urban Improvements $21,103.09 Surf Lifesaving $544.51 [NAME_9] $14,823.49 5 The only contribution not in dispute was that relating to [NAME_9]. The issues 6 The applicant filed a Statement of Issues containing two issues and particulars. These were: 1) whether the contributions apply the principles of s 94 in relation to the contributions for [NAME_9] (including [NAME_2] Wide) and Roads, and

2) whether the contributions can be offset against works-in-kind for [NAME_9] (including [NAME_2] Wide), Cycleways, Surf Lifesaving and Civic & Urban Improvements. Section 94 contributions 7 Section 94 of the EPA Act provides the mechanism for the provision or improvement of amenities and services if a development will or is likely to require the provision of or increase the demand for public amenities and public services within an area. This may be achieved through the dedication of land free of cost or the payment of a monetary contribution, or both (s 94(1)). It is commonly known as the nexus test. A condition may only be imposed to require a reasonable dedication or contribution for the provision, extension or augmentation of public amenities and public services (s 94(2)). A condition may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan (s 94(12)).

8 The Regulations to the EPA Act (the Regs) provide further requirements for the preparation, operation and maintenance of contribution plans.

9 As I understand the applicant seeks the Courts discretion to use the provisions of s 94(12) to amend or delete (in the case of the [NAME_9] and Roads) contributions imposed by the council because they are unreasonable. Relevant planning document 10 The relevant planning document is the [NAME_2] [NAME_2] Council Section 94 Development Contribution Plan (the [NAME_10]). It was adopted by the council in November 2001 and replaces a previous contribution plan from 1993 (the 1993 Plan).

11 The [NAME_10] contains the anticipated quantum and types of development that are projected to occur during the life of the [NAME_10] and an assessment of demand that would occur as a result of this development. The required public amenities and public services to satisfy the identified demand and the works program for those public amenities and public services are contained within the plan, together with an estimate of the costs. The evidence 12 [NAME_11], a consultant town planner and author of the councils [NAME_10] provided evidence for the council and [NAME_14], also consultant a town planner provided evidence for the applicant. [NAME_9] and [NAME_9]-[NAME_2] Wide Contributions The applicant's evidence 13 [NAME_16] states that prior to the applicant's involvement in the subject land, a previous approval (DA 82/584) required the dedication of 1.51 hectares of land. This land is shown as lot 12 on Attachment 1. A further approval (DA 99/043), comprising Stage 1 of the applicant's subdivision, required the dedication of an area of 0.59 hectares. It is shown as lot 16 on Attachment 1. In addition to the dedication of [NAME_9], [NAME_16] states the applicant has paid levies of $47,379 towards [NAME_9] in previous subdivision approvals.

14 [NAME_16] calculates that the 95 lots from previous approvals require an active [NAME_9] component of only 4,617 sq m whereas an area of 15,190 sq m has been dedicated for this purpose. For passive [NAME_9] a total of only 344 sq m is required and 8,321 sq m has been dedicated. These calculations are based on a rate of 2.83 hectares per 1000 head of population. On this basis, it would be unreasonable to require the payment of further contributions. [NAME_16] extends this argument to include the [NAME_9]-[NAME_2] Wide contribution.

The council's evidence 15 [NAME_6], the council's advocate, submits that s 94(9) of the EPA Act stops the applicant from relying on contributions made as part of previous consents. Clause 94(9) states: (9) If a consent authority proposes to impose a condition in accordance with subsections (1) and (3) in respect of development, the consent authority must take into consideration any land or other sum of money that the applicant has elsewhere dedicated free of cost within the area or previously paid to the consent authority other than as a condition of the grant of consent under this Act. 16 If the Court does not accept this submission, [NAME_6] further submits that [NAME_12]'s evidence on the merits should be accepted.

17 In terms of local [NAME_9], [NAME_12] rejects [NAME_16]'s assessment based on a rate of 2.83 hectares per 1000 head of population. He describes this approach as long discredited for the assessment of [NAME_9] needs. While included in the 1993 Plan, this method was rejected as being inappropriate for the current [NAME_10].

18 [NAME_12] describes the key issue as whether the existing land satisfies the demand for local [NAME_9] for the future residents of the proposed subdivision. He concludes that lots 12 and 16 are unsuitable as they contain a drainage reserve or a significant cover of native remnant bushland. While it could be used for small informal areas of [NAME_9] it is extremely limited and as such cannot satisfy the needs of the future residents of the subdivision. 19 For [NAME_2] Wide [NAME_9], [NAME_12] states that the test is whether the [NAME_9] satisfies the demand for "[NAME_2] wide" [NAME_9] for the future residents of the subdivision. He identifies "[NAME_2] wide" [NAME_9] activities as children's play, relaxation and walking, formal and informal gatherings, sports activities and active sports, jogging and other forms of fitness activities and community activities such as fairs, festivals and the like as activities. In his opinion, lots 12 and 16 cannot fulfil the requirements for this type of [NAME_9].

20 [NAME_12] states that the overall philosophy of the [NAME_10] is not necessarily to seek more land but to improve the existing supply of land to cater for the projected [NAME_9] demand. Importantly, any reduction in contributions would lower the overall level of contributions and thereby make further acquisition and embellishment more difficult.

Findings 21 I accept [NAME_6]'s principal submission that s 94(9) denies the applicant the opportunity to revisit previous contributions. There was no dispute that lots 12 and 16 were created "as a condition of the grant of consent" from DA 82/584 and DA 99/043 respectively.

22 If I am incorrect in this conclusion, I prefer the evidence of [NAME_12] on the question of whether the contribution is reasonable.

23 For a valid contribution to be raised under s 94 there needs to be a reasonably demonstrated nexus between the identified expenditure and the additional demand for amenities and services generated by the proposed development within an area. There needs to be both temporal and physical nexus between the increased demand generated by the extra population and the expenditure identified to meet this demand. A valid contribution also has to be reasonable.

24 Clause 27 of the Regs requires a contribution plan to include the relationship between the expected type of development and the demand for additional public amenities and services to meet that demand (cl 27(c)) and the formulas for determining the contribution rates (cl 27(d)). The nexus argument for [NAME_9] is set out in some detail in cl 4.9 of the [NAME_10]. 25 The starting point for a test of reasonableness must be the [NAME_10]. In the absence of any contrary evidence, the Court must assume that the [NAME_10] has been prepared in accordance with the requirements of the EPA Act, including public exhibition and consideration of any submissions by the council. Consequently weight must be given to its contents, including the methodologies used in the establishment of the various contributions.

26 In my understanding of the applicant's evidence, the substance of the nexus argument, as set out in the [NAME_10] was not seriously challenged, as the Court was not taken to any of its specific assumptions. Instead, the applicant was content to rely on the previous dedications of land as the basis for its claim that the condition was unreasonable.

27 [NAME_16] places significant weight on 2.83 hectares per 1000 head of population ratio as a means of providing an acceptable level of [NAME_9]. The [NAME_10] however dismisses this method as an inappropriate method of assessing appropriate levels of [NAME_9] (par 6.2). It must be remembered that the demand for public amenities and public services within an area may change over time or that more refined methods of assessing the demand become available. In this case, the council adopted a more strategic or "needs based approach" to the provision of [NAME_9] in the [NAME_10] than it did in the 1993 Plan. As [NAME_12] states, "simply providing land as a numbers game without regard for its use was a concept flatly rejected by the Plan". In my view, and considering the nexus requirement in s 94, the "needs based approach" to the provision of [NAME_9] in the [NAME_10] is significantly more reliable than the approach used in the 1993 Plan. 28 While [NAME_16] may not agree with this approach, it does not automatically follow that this would mean that the contribution is unreasonable. In [NAME_4] v Wingacarribee [NAME_2] Council (1993) 80 LGERA 75, [NAME_17] upheld the council's decision not to rely on the same traditional [NAME_9] standard proposed by [NAME_16], as the standard "has lost most of its relevance and usefulness in this State".

29 The [NAME_10] identifies the future projected population of the [ADDRESS] area as requiring: "1 additional park and district facilities. Embellishment of existing facilities is proposed to allow higher use levels for the incoming population. There will also be an increase in the demand for district [NAME_9]. Embellishment of existing facilities is proposed" (cl 6.9.3). 30 With the benefit of the site view, I agree with [NAME_12] that lots 12 and 16 are not likely to be suitable for the [NAME_9] needs of the future population. The area is densely vegetated and while the Court was not made aware of any studies identifying the particular floral and faunal qualities of this area, it is unlikely that the wholesale (or even partial) clearing to provide some of the facilities identified in cl 6.9.3 is a realistic proposition. 31 The responsibility rests on the applicant to show why the contribution is unreasonable. In my view, the applicant has not shown why the contributions for [NAME_9] (including [NAME_2] Wide) are not sound and not rationally based. It follows that the contributions are not unreasonable and as such, the contributions must remain. Roads Contribution The applicant's evidence 32 [NAME_16] states that only 158 additional people are identified in the [NAME_10] to achieve a capacity of 3500 people in the [ADDRESS] area. He concludes that the contribution is unreasonable given the relatively minor traffic increase generated by the projected population increase. Further, [NAME_16] states that the [NAME_10] proposes the collection of $500,000 whereas only $150,000 will be expended during the life of the [NAME_10].

The council's evidence 33 [NAME_12] disagrees with [NAME_16]'s conclusions. He states that the contribution for roads is a [NAME_2] wide contribution based on the total incoming population. Consequently, the development in the entire local government area must be evaluated in assessing whether the contribution is reasonable and not just a small component of development. In his opinion, [NAME_16]'s assessment is selective and when taken in isolation any single component of the works program could be seen to be unreasonable however when the total demand of the future population is considered, the contribution is clearly a reasonable one. 34 [NAME_12] also rejects, as speculative, any suggestion that the council will not be able to complete the works program. Findings 35 On this issue, I agree with [NAME_12]. The general thrust of [NAME_16]'s argument is that the contribution will not directly benefit the proposed subdivision and as such, the contribution is unreasonable.

36 Clause 26 of the Regs provides the form of contribution plans. Clause 26(2) provides that "contribution plans may be made for all or any part of the councils the area and in relation to one or more public amenities or public services". In this case, the council has chosen that contributions for roads are to be collected on a [NAME_2] wide basis, rather than smaller discrete areas. This is an option that is open to the council. In my view the applicant provided no evidence to suggest that the collection of s 94 contributions, in this way, was unreasonable. I agree with [NAME_12] that it is not appropriate to simply extract a component of the [NAME_10] and consider whether that component is unreasonable in isolation from the rest of the plan. The [NAME_10] must be considered as a whole. 37 This matter has been considered previously by the Court where it was held that it is not necessary for the benefit of the public amenities and public services to be direct, provided that the amenities and services are established in area where there can be a benefit to the development (Parramatta City Council v Peterson (1987) 61 LGRA 286, [COMPANY_18] v Dumaresq [NAME_2] Council (1992) 78 LGERA 261). The nexus argument for roads is set out in cl 4.10 of the [NAME_10] and is consistent with the findings in Peterson, [NAME_4] and [NAME_5].

38 I also accept the evidence of [NAME_12] that any suggestion that the works program will not be completed is speculative and cannot form part of the Court consideration on this matter.

39 In my view, the applicant has not shown why the contributions for Roads are not sound and not rationally based. It follows that the contributions are not unreasonable and as such, the contributions must remain. [NAME_19] The applicant's evidence 40 [NAME_16] states that the applicant, at meetings with council officers, offered to provide [NAME_19] in lieu of paying s 94 contributions for [NAME_9] (including [NAME_2] Wide), Cycleways, Surf Lifesaving and Civic & Urban Improvements. During the hearing the Court was advised that attempts to seek further direction from council officers had been unsuccessful. In his evidence, [NAME_16] outlines some works and goods that are offered in lieu of the contributions. The council's evidence 41 [NAME_12] accepts that the [NAME_10] provides that [NAME_19] may be accepted by the council but subject to certain conditions. He rejects any use of [NAME_19] in this instance, as the applicant has not provided details and design standards for the proposed works. Consequently, no assessment can be made of whether the works satisfy the requirements of the [NAME_10].

Findings 42 Section 94(5)(b) provides the opportunity for [NAME_19] (or material public benefit) in lieu of the dedication of land or the payment of a monetary contribution. Clause 3.9 of the [NAME_10] states that an offer for an "in kind" contribution will only be accepted if the payment of the contribution is unreasonable or unnecessary (cl 3.9(i)), will not prejudice the provision of any particular facility or service (cl 3.9(ii)) and is at least equal in value to the contribution (cl 3.9(iii)).

43 [NAME_12]'s concerns over the lack of detailed information is a valid matter in considering whether an offer for [NAME_19] should be accepted. While s 94(5)(b) allows the opportunity for the provision of amenities and services by means other than a contribution, the onus rests with the applicant to show how any [NAME_19] addresses the requirements of the [NAME_10]. The integrity of the [NAME_10] needs to be maintained and should not be compromised by offers to provide services and facilities that may challenge the overall objectives of the plan.

44 I have given little; if any weight to the applicant's concerns that the council was unresponsive to their attempts to address this issue prior to the hearing. The onus clearly rests with the applicant to provide sufficient details to convince the council that [NAME_19] is a viable alternative to the dedication of land or the payment of a monetary contribution. 45 Clearly, any [NAME_19] must be consistent with the requirements of the [NAME_10]. With the absence of any specific details from the applicant, the Court (as was the council previously) not in a position to consider whether any offers for [NAME_19] should be accepted. The details supplied by [NAME_16] in his statement, took the matter no further. Consequently, the lack of detail effectively prohibited the Court from considering this issue. This was a conclusion given at the hearing, as a preliminary finding, in the interests of efficiency and the limited time available.

46 On the basis of the lack of detail presented to the Court, the assessment required by cl 3.9 cannot be undertaken so any attempts by the applicant to provide [NAME_19] in lieu of the contributions must be rejected. Conclusion 47 For the reasons set out in the preceding paragraphs, the appeal must fail.

48 During the hearing, the applicant who was self represented, raised a number of matters not directly related to the issues identified in the Statement of Issues. These included the late service of reports and the unavailability documents relating to the [NAME_10], including the s 94 Register and the status of the s 94 Works Program. These matters were dealt with at the hearing and the following comments briefly describe the actions taken by the Court.

49 Following submissions from both parties, the Court accepted the reports of [NAME_12] and [NAME_16]. Both reports were served outside the times given in Directions by the Court, although [NAME_12] and [NAME_16] were aware of the issues and had prepared a joint report prior to the hearing. On this basis and with the limited issues in the proceedings, the Court saw little prejudice to either party and allowed the reports into evidence.

[ADDRESS] accepted that matters relating to the council's maintenance of the s 94 Register and the status of the s 94 Works Program should be publicly available although the documentation provided to the Court was sufficient for the Court to properly consider the matters at issue. Orders 51 The Orders of the Court are:

1. The appeal is dismissed.

2. Condition 24 of Development Approval No. 10. 2003.230.1 granted by [NAME_2] [NAME_2] Council on 23 March 2004 for the payment of contributions pursuant to s 94 of the Environmental Planning and Assessment Act 1979 for the subdivision of land known as part lot 17 DP 270338 [ADDRESS] and [ADDRESS], [ADDRESS] is confirmed.

3. The exhibits are returned.

_________ [NAME_8] Commissioner of the Court

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