Kempsey Shire Council v M A Roche Group Pty Ltd [2012] NSWLEC 211

Kempsey Shire Council v M A Roche Group Pty Ltd [2012] NSWLEC 211

Condition 20 expressly referred to the s 94 Rural Roads Developer Contribution Plan and the s 94 Project Administration Developer Contribution Plan, and those plans were incorporated into the condition. The incorporated plans required the s 94 contribution to be paid before the use commenced. Because the Respondent commenced the consented temporary quarry use without paying the contribution, condition 20 was not complied with and there was a breach of s 76A(1) of the Environmental Planning and Assessment Act 1979, warranting orders for payment of the contribution, capped interest, and costs.

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Class 4 Civil Enforcement Proceedings / Ex Tempore Principal Judgment
Outcome
Application allowed; orders made requiring the Respondent to pay the unpaid s 94 contribution, capped interest, and costs.
Legal Topics
['temporary Quarry Use' 'development Consent Conditions' 'section 94 Developer Contributions' 'failure to Pay Contribution' 'construction of Development Consent Conditions']
['environmental Planning and Development' 'civil Enforcement'] ['temporary Quarry Use' 'development Consent Conditions' 'section 94 Developer Contributions' 'failure to Pay Contribution' 'construction of Development Consent Conditions']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether development consent condition 20 required the Respondent to pay a s 94 developer contribution before the temporary quarry use commenced.' 'Whether the s 94 Rural Roads Developer Contribution Plan and s 94 Project Administration Developer Contribution Plan were incorporated into condition 20.' 'Whether non-payment of the contribution constituted non-compliance with condition 20 and a breach of s 76A(1) of the Environmental Planning and Assessment Act 1979.' 'What orders should be made under s 124 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Condition 20 expressly referred to the s 94 Rural Roads Developer Contribution Plan and the s 94 Project Administration Developer Contribution Plan, and those plans were incorporated into the condition. The incorporated plans required the s 94 contribution to be paid before the use commenced. Because the Respondent commenced the consented temporary quarry use without paying the contribution, condition 20 was not complied with and there was a breach of s 76A(1) of the Environmental Planning and Assessment Act 1979, warranting orders for payment of the contribution, capped interest, and costs.

Court Disposition

Application allowed; orders made requiring the Respondent to pay the unpaid s 94 contribution, capped interest, and costs.

Orders

  • ['The Respondent to pay the Applicant the amount of $17,871 and interest on that amount as provided for by s 100 of the Civil Procedure Act 2005 capped at $2,364 within 28 days.' "The Respondent to pay the Applicant's costs of the proceedings as agreed or assessed."]