GHD Pty Ltd v Pristine Waters Council [2001] NSWLEC 186

GHD Pty Ltd v Pristine Waters Council [2001] NSWLEC 186

Condition 32 was unreasonable as imposed because of mathematical error and because the appropriate occupancy rate was 2.2 persons per lot rather than 3.0. The applicant's challenges based on lack of nexus, alleged need for further apportionment of Schedule 1 figures, and alleged failure to spend funds within a reasonable time were rejected. Applying the Schedule 1 figures without further apportionment, but using 2.2 persons per lot, produced revised contributions of $30,213 for arterial and major road upgrade, $6,591 for public open space and $26,807 for community amenities, totalling $63,611 for the 41 lots.

Jurisdiction
Australia
Judgment Date
27 July 2001
Procedural Posture
Appeal Concerning a Development Consent Condition Imposing S 94 Monetary Contributions / Judgment After Hearing
Outcome
The appeal was upheld and condition 32 was varied.
Legal Topics
['development Consent' 'section 94 Contributions' 'reasonableness of Consent Condition' 'nexus' 'apportionment' 'occupancy Rate']
['planning and Environment Law' 'development Contributions'] ['development Consent' 'section 94 Contributions' 'reasonableness of Consent Condition' 'nexus' 'apportionment' 'occupancy Rate']

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Procedural Posture

Appeal Concerning a Development Consent Condition Imposing S 94 Monetary Contributions / Judgment After Hearing

Legal Issues

  1. 1 ['Whether condition 32 of the development consent, imposing s 94 contributions for arterial and major roads upgrading, public open space embellishment and community amenities, was unreasonable.' 'Whether there was a sufficient nexus between the proposed development and the works for which contributions were imposed.' 'Whether the contribution amounts in Schedule 1 of Contribution Plan Number 4/1995 required further apportionment between existing and projected residents.' 'Whether the appropriate occupancy rate for calculating contributions was 3.0 persons per allotment or 2.2 persons per allotment.' 'Whether records of collection and expenditure of s 94 funds showed that the contributions were unreasonable because funds had not been spent within a reasonable time.']

Ratio Decidendi

Condition 32 was unreasonable as imposed because of mathematical error and because the appropriate occupancy rate was 2.2 persons per lot rather than 3.0. The applicant's challenges based on lack of nexus, alleged need for further apportionment of Schedule 1 figures, and alleged failure to spend funds within a reasonable time were rejected. Applying the Schedule 1 figures without further apportionment, but using 2.2 persons per lot, produced revised contributions of $30,213 for arterial and major road upgrade, $6,591 for public open space and $26,807 for community amenities, totalling $63,611 for the 41 lots.

Court Disposition

The appeal was upheld and condition 32 was varied.

Orders

  • ['The appeal will be upheld.' 'Condition 32 will be varied in the manner indicated in the judgment.' 'The exhibits are to remain with the papers for 28 days and then be returned to the parties.' 'The question of costs is reserved.']