Wilson v MidCoast Council [2018] NSWLEC 1489

Wilson v MidCoast Council [2018] NSWLEC 1489

The Court had power under s 7.13(3) of the Environmental Planning and Assessment Act 1979 to amend condition 20 on appeal. In calculating the levy, the appropriate approach was to use the second RMS Guide formula for evening peak hour trips, apply the agreed daily rate conversion factor of 10.62, divide by two to obtain one-way trips, and then apply the 0.4 non-residential discount factor in the Forster District Plan. A further passing trade discount was not justified because, read in context, the Forster District Plan's 0.4 factor excludes vehicle trips that are not additional trips to the individual non-residential development, and applying an additional passing trade discount would...

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Class 1 Appeal Against the Terms of a Condition of Development Consent / Principal Judgment After Mandatory Conciliation Was Terminated and Hearing on Appeal
Outcome
Appeal upheld; condition 20 amended to apply 168 one-way trips at the indexed rate of $697.36, resulting in a Forster District Plan levy contribution of $117,156.48 and a total levy contribution of $117,955.75.
Legal Topics
['section 94 Development Contributions' 'modification of Development Consent' 'traffic Generation Assessment' 'passing Trade Discount' 'reasonableness of Consent Condition']
['planning and Environment Law' 'development Contributions' 'local Government'] ['section 94 Development Contributions' 'modification of Development Consent' 'traffic Generation Assessment' 'passing Trade Discount' 'reasonableness of Consent Condition']

Case Brief

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Procedural Posture

Class 1 Appeal Against the Terms of a Condition of Development Consent / Principal Judgment After Mandatory Conciliation Was Terminated and Hearing on Appeal

Legal Issues

  1. 1 ['Whether the quantity of one-way vehicle trips used to calculate the monetary contribution for the approved service station and convenience store was excessive because it included passing trade trips.' 'Whether the Court had power under s 7.13(3) of the Environmental Planning and Assessment Act 1979 to amend condition 20 of the Development Consent.' 'Whether condition 20 was unreasonable in the particular circumstances of the case.' 'What formula, daily rate conversion factor and discount factor should be used to determine the levy contribution under the Section 94 Development Contributions Plan Forster District.']

Ratio Decidendi

The Court had power under s 7.13(3) of the Environmental Planning and Assessment Act 1979 to amend condition 20 on appeal. In calculating the levy, the appropriate approach was to use the second RMS Guide formula for evening peak hour trips, apply the agreed daily rate conversion factor of 10.62, divide by two to obtain one-way trips, and then apply the 0.4 non-residential discount factor in the Forster District Plan. A further passing trade discount was not justified because, read in context, the Forster District Plan's 0.4 factor excludes vehicle trips that are not additional trips to the individual non-residential development, and applying an additional passing trade discount would...

Court Disposition

Appeal upheld; condition 20 amended to apply 168 one-way trips at the indexed rate of $697.36, resulting in a Forster District Plan levy contribution of $117,156.48 and a total levy contribution of $117,955.75.

Orders

  • ['The appeal is upheld.' 'Condition 20 of Development Consent 206/2015/A for a service station and convenience store at 190 The Lakes Way, Tuncurry, is amended in the Conditions of Consent at Annexure A to apply a quantity of 168 one-way trips to the indexed rate of $697.36, resulting in a levy contribution under...