Piwila Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1171

Piwila Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1171

The development consent was for demolition of existing sheds and construction of a new shed to be used for office storage, security car parking and uses complementary to existing businesses. On that use, the additional floor area could not reasonably be seen to satisfy the fundamental test in s 94(1) that the development will or is likely to require provision of, or increase demand for, public amenities and public services. Condition 11 requiring the s 94 contribution was therefore deleted.

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against a Condition of Development Consent / Final Judgment After Mandatory Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated
Outcome
The appeal is upheld and Condition 11 of Development Consent T6-11-135 is deleted.
Legal Topics
['section 94 Development Contributions' 'contribution Plans' 'condition of Development Consent' 'public Amenities and Public Services Demand']
['planning and Environment' 'development Consent'] ['section 94 Development Contributions' 'contribution Plans' 'condition of Development Consent' 'public Amenities and Public Services Demand']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against a Condition of Development Consent / Final Judgment After Mandatory Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether Condition 11 requiring a s 94 contribution was unreasonable in the particular circumstances of the case under s 94B(3) of the Environmental Planning and Assessment Act 1979.' 'Whether the development will or is likely to require the provision of, or increase the demand for, public amenities and public services within the area under s 94(1) of the Environmental Planning and Assessment Act 1979.' 'Whether challenges to the validity of the Kempsey Town Centre Public Domain Section 94 Developer Contribution Plan 2010 could be addressed in these proceedings.']

Ratio Decidendi

The development consent was for demolition of existing sheds and construction of a new shed to be used for office storage, security car parking and uses complementary to existing businesses. On that use, the additional floor area could not reasonably be seen to satisfy the fundamental test in s 94(1) that the development will or is likely to require provision of, or increase demand for, public amenities and public services. Condition 11 requiring the s 94 contribution was therefore deleted.

Court Disposition

The appeal is upheld and Condition 11 of Development Consent T6-11-135 is deleted.

Orders

  • ['The appeal is upheld.' 'Condition 11 of Development Consent T6-11-135 for the payment of a s 94 contribution is deleted.' 'The exhibits, other than exhibits 1, 2 and A, are returned.']