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Application for declaration – non-payment of
contributions – requirement that Applicant pay
contribution prior to the commencement of use or issue of a
Certificate of Classification – discretion - ss.3.5.28
and 4.3.3(1) Integrated Planning Act 1997 – s.580(1)
Sustainable Planning Act 2009
Facts: The Council sought declarations that the
present registered proprietor of the subject land had committed,
and was committing, a development offence for its refusal to pay
contributions required by a development approval. It also sought
enforcement orders in that regard.
The proceedings focused upon the proper construction of certain
infrastructure contribution conditions which required the Applicant
to pay monetary contribution prior to the commencement of use, or
issue of a Certificate of Classification, whichever was the
sooner.
Recora had contracted to purchase the site from a predecessor in
title in March 2008. The contract subsequently settled, and the use
commenced. At the time of the completion of the contract, the
infrastructure contributions remain unpaid. A search undertaken
with the Council on behalf of Recora for the purposes of the
purchase of the land was not sufficient to bring that fact to its
notice. Council contacted Recora about the outstanding charges in
January 2011.
The Respondents argued that Recora had not committed a
development offence, because after the date of the issue of the
Certificate of Classification, the conditions were incapable of
being complied with on a proper construction of those conditions.
That was, each required an action to be taken by a specific date
which fell before Recora became a successor in title to the
original Applicant.
Decision: The Court held in making the
declaration, that:
The Respondent's argument could not be accepted. Pursuant
to s.3.5.28 of the IPA, which applied to the permit at the time,
the approval attached to the land and bound the owner and the
owner's successors in title.
The Respondent's approach tended to isolate the relevant
words in the conditions from the remaining important terms and the
whole approval in a highly technical way, and ignored the principle
that those who take the benefit of an approval should pay their
share of demand on infrastructure created by development.
The conditions were straightforward and in conventional terms.
Each condition imposed an obligation on the Applicant, and as a
matter of law on their successor in title, to pay an amount
calculated by reference to the policy applicable at the time of
payment. The condition set a deadline to pay which had passed by
the time Recora assumed the benefit of the approval. The failure to
pay in a timely way did not discharge the responsibility to pay
contributions, nor did it sever the condition from the
approval.
The condition still bound Recora and was one that was, and
still is, breached by non-performance.
Section 580 of the SPA was in clear terms. A development
offence was committed upon contravention of a development approval
including any condition in the approval. Once Recora's
construction of the relevant conditions was rejected, it was
clearly contravening the conditions by not paying the
contributions.
Section 580(1) of the SPA was in identical terms to s.4.3.3(1)
of the IPA, which would have applied at the time the conditions
were first contravened by non-performance by the original
beneficiary of the approval.
In all the circumstances, the Court was prepared to make the
declaration sought.
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