Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2

Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2

Subparagraph (h) of the definition of gross floor area excludes any space used for the loading or unloading of goods, including access to it. The corridors marked in green on the architectural plans provided access to spaces where loading and unloading occurred, whether in the carpark or in the storage units, and were therefore exempt from the calculation of gross floor area. Their inclusion produced an erroneous contributions calculation and an overpayment. The Court had power under s 4.55 to modify condition 30 after payment, and modification had utility because it correctly applied the Contributions Plan, required the overpayment to be taken into account for any future development...

Jurisdiction
Australia
Judgment Date
06 January 2021
Procedural Posture
Class 1 Appeal / Appeal Against the Deemed Refusal of Modification Application Mod0007/19 Under S 4.55 of the Environmental Planning and Assessment Act 1979
Outcome
Appeal upheld; modification application approved; condition 30 modified to reduce the development contribution to $674,151.05.
Legal Topics
['modification of Development Consent' 'development Contributions' 'gross Floor Area' 'statutory Construction' 'ku Ring Gai Contributions Plan 2010']
['planning and Environment Law'] ['modification of Development Consent' 'development Contributions' 'gross Floor Area' 'statutory Construction' 'ku Ring Gai Contributions Plan 2010']

Case Brief

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Procedural Posture

Class 1 Appeal / Appeal Against the Deemed Refusal of Modification Application Mod0007/19 Under S 4.55 of the Environmental Planning and Assessment Act 1979

Legal Issues

  1. 1 ['Whether condition 30 of the development consent should be modified with respect to the amount of development contributions payable under the Ku-ring-gai Contributions Plan 2010 pursuant to s 7.11 of the Environmental Planning and Assessment Act 1979.' 'Whether corridors accessing storage units and loading or unloading spaces were excluded from the calculation of gross floor area under subparagraph (h) of the definition of gross floor area in the Ku-ring-gai Local Environmental Plan 2015.' 'Whether there was power and utility in modifying condition 30 after the contributions had already been paid.']

Ratio Decidendi

Subparagraph (h) of the definition of gross floor area excludes any space used for the loading or unloading of goods, including access to it. The corridors marked in green on the architectural plans provided access to spaces where loading and unloading occurred, whether in the carpark or in the storage units, and were therefore exempt from the calculation of gross floor area. Their inclusion produced an erroneous contributions calculation and an overpayment. The Court had power under s 4.55 to modify condition 30 after payment, and modification had utility because it correctly applied the Contributions Plan, required the overpayment to be taken into account for any future development...

Court Disposition

Appeal upheld; modification application approved; condition 30 modified to reduce the development contribution to $674,151.05.

Orders

  • ['The appeal is upheld.' 'Application MOD0007/19 - 3-5 West Street, Pymble, for the modification of condition 30 of the Land and Environment Court approval of DA0122/17 is approved.' 'Condition 30 is modified to provide that the development contribution calculated in accordance with Ku-ring-gai Contributions Plan...