The Lawson Clinic Pty Ltd v Ku-ring-gai Council (No 3) [2016] NSWLEC 79

Land and Environment Court New South Wales

Medium Neutral Citation: The Lawson Clinic Pty Ltd v Ku-ring-gai Council (No 3) [2016] NSWLEC 79 Hearing dates: On the papers, no further hearing required Date of orders: 06 July 2016 Decision date: 06 July 2016 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [14] Catchwords: DEVELOPMENT CONTRIBUTIONS – basis of indexation of contribution to be derived from the Contributions Plan – consideration of date from which adjustment of indexation formula to operate – no basis to consider indexation approach applied by the Council to be unreasonable – contribution to be adjusted by calculation on indexation base dates proposed by the Council Legislation Cited: Ku-ring-gai Contributions Plan 2010 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 The Lawson Clinic Pty Ltd v Ku-ring-gai Council (No 2) [2016] NSWLEC 65 Category: Principal judgment Parties: The Lawson Clinic Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Mr C Ireland, barrister (Applicant) Ms K Morton, solicitor (Respondent)

Solicitors: CMI Law Firm (Applicant) Sparke Helmore (Respondent) File Number(s): 160775 of 2016 (formerly 11061 of 2015) Publication restriction: No

TABLE OF CONTENTS Introduction Remaining matter in dispute The Lawson Clinic's position The Council's position Conclusion Orders

Judgment

Introduction 1. The Lawson Clinic Pty Ltd (the Lawson Clinic) has a development consent to build a private psychiatric facility on the Pacific Highway at Gordon. The Lawson Clinic has been in dispute with Ku-ring-gai Council (the Council) concerning the development contributions to be exacted for the proposed development as a consequence of the application of the Ku‑ring‑gai Development Contributions Plan 2010 (the Contributions Plan). Claims by the Lawson Clinic for exemption (or if not exemption, significant reduction) in the contribution payable and, if payable, the basis upon which the contribution should be calculated, have been dealt with by me in two earlier decisions in these proceedings (see The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 and The Lawson Clinic Pty Ltd v Ku-ring-gai Council (No 2) [2016] NSWLEC 65). 2. Following my second decision, the parties were left to calculate the contribution that would result by application of the Contributions Plan on the bases that I had determined were appropriate.

Remaining matter in dispute 1. As it has transpired, the parties are able to agree on two alternative calculated outcomes, with the choice of which outcome should apply being contingent on when it should be accepted as the appropriate date or dates upon which indexation of the relevant base rate in the Contributions Plan should be applied. 2. The parties have provided me with written submissions outlining the competing positions, with me to determine the outcome on the basis of my consideration of those submissions. No further hearing on this point was required. The positions of the parties are outlined below.

The Lawson Clinic's position 1. Mr Ireland, for the Lawson Clinic says, effectively, that the relevant base rate applying as a consequence of my earlier decisions is $146.65 per square metre with this rate to be adjusted for indexation, on the bases arising from the Contributions Plan determined by me in Lawson (No 2) to be appropriate. The rate set in the Contributions Plan that commenced in 2010 should be regarded as applicable from the operative date of the Contributions Plan and not adjusted from any earlier date as proposed by the Council.

The Council's position 1. The Council's position is that, although the relevant rate was nominated when the Contributions Plan commenced in 2010, it is clear from the terms of s 1.38, Indexation of Contributions, of the Contributions Plan that that rate was calculated based on the value of the relevant indices as at earlier dates. The explanation of the Base Index element of the CPI utilising formula for adjustment reads: Base Index is the Consumer Price Index as published by the Australian Bureau of Statistics at the time the works programme of this Contributions Plan was costed. [emphasis added] 1. The explanation for the Base Index of the Housing Index utilising formula for adjustment is in similar terms. 2. The Contributions Plan sets out the following note immediately following the two adjustment formulae: Note: For construction cost estimate purposes, the base date of this Contributions Plan is the September Quarter 2009. For land value cost estimates, the base date of this Contributions Plan is the December Quarter 2008. These are the respective quarters within which the Quantity Surveyor cost estimates were undertaken by Page Kirkland and the land valuations estimates were undertaken by HillPDA. 1. The Council says that the Contributions Plan thus makes it clear that, as a consequence, indexation is to be applied having regard to, and operating from, such earlier relevant date as set out in the Contributions Plan. This interpretation of the approach to be adopted from the Contributions Plan has been applied consistently by the Council in all other circumstances. 2. There are two short observations to be made concerning these provisions in the Contributions Plan. The first is that its terms make it expressly clear as to the relevant derivative dates for elements used to calculate the relevant starting rate of $146.65 that is applicable in these proceedings to derive the contribution to be exacted from the Lawson Clinic. 3. Second, the submission by the Council that it has consistently applied the indexation process for adjusting contributions on the basis of the interpretation of the Contributions Plan earlier outlined is also relevant. Consistent policy application by a Council, when, as is here the case, the policy is not in conflict with any relevant plan, is entitled to be given significant (if not determinative) weight in any consideration (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87] to [92]).

Conclusion 1. The combination of the clarity of the terms of the Contributions Plan and the consistent operation of the Council of its interpretation of those terms causes me to conclude that the contribution to be exacted is appropriately determined to be that proposed by the Council. This means that the contribution falling to be paid by the Lawson Clinic, adjusted by indexation in the fashion I have determined appropriate, is to be, as at the date of this decision, $205,385.60. 2. As the terms of the relevant conditions to replace the existing Contribution and Operational Management Plan conditions (the latter being dealt with, in principle, in Lawson No 1 but to be settled by the parties) have now been settled by the parties, except for the insertion of the amount of the contribution, final orders can be made with the insertion of the amount determined above.

Orders 1. The orders of the Court, therefore, are: 1. Appeal allowed; 2. Development Consent, DA 0327/13 is modified as follows: 1. Condition 33 is amended to provide as follows: Section 94 Contributions – Centres This development is subject to a development contribution calculated in accordance with Ku-ring-gai Contributions Plan 2010, being a s 94 Contributions Plan, in effect under the Environmental Planning and Assessment Act, as follows: Key Community Infrastructure – $205,385.60 Gordon TC New Roads and Road Mods [TBA] The contribution shall be paid to Council within 28 days of the date of the orders of the Land and Environment Court in proceedings 15/11061. In the event of late payment, no Construction Certificate can be issued until payment is made. If the contribution amount is not paid within 28 days of the Court orders then the contribution will be subject to indexation in accordance with Ku-ring-gai Contributions Plan 2010 until the contribution is paid. In the event of late payment, indexation of the contribution amount will commence from the date of the orders of the Court. 1. Condition 72 is redrafted to read as follows: The Operational Management Plan (incorporated into this Consent by Condition 3) may be modified by the Applicant or person able to rely on this Consent, from time to time, but only with the written approval of the Council. A copy of the modified Operational Management Plan must be kept on site in the main office. Reason: to ensure the operation of the facility minimises impact on neighbouring residents. 1. No order as to costs; 2. The exhibits are returned.

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Amendments 07 July 2016 - Monetary amount of Key Community Infrastructure omitted. The amount of $205,385.60 has been added to [14](2)(a). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2016