You might also be interested in...
(Andrews SC DCJ - 28 November 2014)
Download the judgment
Planning and environment – infrastructure charges – where the developer and local authority agreed in 1992 that if the developer paid a bond in respect of infrastructure contributions those contributions when payable would be calculated at 1992 rates – where the developer paid the bond – where the contributions remained unpaid in 2008 – where council imposed conditions upon an approval in 2008 that the developer pay a portion of infrastructure contributions at 2008 rates – whether the development approved in 2008 was in contemplation of the developer and local authority in 1992 – whether the conditions were an unreasonable imposition on the development – whether the conditions should be changed
These were two related appeals about infrastructure charges associated with a development approval dated 11 December 2008 for a material change of use for Industry (Wire, Steel and Fencing Manufacture and Supply) and a caretaker's residence over land located at Stapylton.
Appeal No. 3720 of 2013 was the appellant's appeal against an enforcement notice issued by Council with respect to a failure to comply with conditions of the development approval which required the payment of a total of $1,125,037.38 towards sewerage network infrastructure, water supply network infrastructure and transport network infrastructure.
Appeal No. 4433 of 2013 was an applicant appeal against Council's refusal of Mr Palmer's request to make a permissible change to the development approval to remove the conditions or reduce the amount of contributions.
There had been a previous appeal by Mr Palmer (Appeal No. 1815 of 2009) against the subject conditions. That appeal had been withdrawn after Palmer decided to instead seek changes to the conditions via the permissible change process.
The changes which were sought by Palmer in his permissible change request were the deletion of conditions 4 and 5 (which required the payment of monetary contributions for water and sewer infrastructure ), the amendment of condition 6 (which required the payment of a monetary contribution with respect to transport infrastructure) and the removal of the ERA component of the development approval.
Palmer had owned the land since 1990 and operated a business on the land fabricating and distributing wire fencing supplies. The site had a long and complicated planning history.
The issues for determination in Appeal No. 4433 of 2013 were:
- whether the request was accompanied by owner's consent and if not whether the non-compliance should be excused. The request made on 5 September 2013 was made by Mr Palmer's lawyers and enclosed the form for the request. The form was not signed by Mr Palmer;
- whether the proposed changes were permissible;
- whether Mr Palmer's decision to discontinue Appeal No. 1815 of 2009 or his conduct subsequent to the discontinuance impacted upon the determination of the appeal;
- whether conditions 4 and 5 were "not reasonably required in respect of the development" and "an unreasonable imposition on the development". Palmer argued that infrastructure charges had already been paid in relation to an earlier 1992 rezoning approval authorising the same type of development at a larger scale and that the proposed development therefore created no additional service demand. The amount payable under the 1992 approval was $271,415.30. In 1994, Palmer had paid a bond as security for payment of contributions under the 1992 approval. The contributions had not been paid and the bond had not been refunded.
- whether, in the alternative, the contributions should be reduced;
- whether condition 6 was "an unreasonable imposition on the development" and whether the amount should therefore be reduced. The issue was confined to the proper calculation of the number of vehicle trips per day to be created by the proposed development. Palmer contended that the number of VPDs should be calculated by reference to the actual development. Council submitted that the correct approach was to look at what number of vehicle movements could be anticipated by an approved development.
- whether the ERA component of the decision notice should be deleted because it was of no utility. The approval was stated to approve ERA 26 "Metal Forming" subject to conditions. Mr Palmer said he had not applied for an ERA and that the types of activities which would fall within the ambit of ERA26 were not being carried out on the site.
Decision: The Court held:
- The permissible change request letter and Council's request form made it clear that the application was being made by the solicitors as agents for Mr Palmer. It was appropriate to make an order excusing any non-compliance in relation to owner's consent.
- The proposed changes to conditions 4, 5 and 6 would not result in substantially different development.
- Deletion of the ERA component of the approval would not result in a substantially different development.
- The changes proposed to the development were permissible changes for the purposes of s. 367 of the SPA.
- Upon the appeal, the Court was to proceed by way of hearing anew and must "to the extent relevant" assess the request having regard to the matters in s. 374 of the SPA.
- The discontinuance of appeal 1815 of 2009 did not estop Palmer from relying on another statutory right of appeal and raising a substantially similar issue. There was no issue estoppel, there having been no decision in the previous appeal. The discontinuance of one appeal was not an abuse of process. The discontinuance did not create a statutory bar against prosecution of the new appeal on similar issues and no estoppel arose and no abuse of process was occurring by Mr Palmer raising similar issues.
- Before and after he discontinued the first appeal Palmer was bound by conditions 4, 5 and 6. But being bound by the conditions did not estop or otherwise prevent him from arguing that they were unreasonable.
- So far as demand on water and sewerage headworks were concerned, the development in 2008 was a development in contemplation of the Council in 1992.
- It was not a case of double dipping where a development was made subject to a condition to pay for headworks a second time. It was a case where an agreement struck in 1992 and fulfilled by Palmer entitling him to pay contributions at 1991 / 1992 rates had not been fully recognised by conditions 4 and 5.
- Conditions 4 and 5 were an unreasonable imposition.
- The approved development had the potential to generate a greater number of vehicle movements than were generated by Palmer's use of the land. In terms of reasonableness and relevance, the correct approach was to look at what VPD could be anticipated by an approved development rather than to look at the actual VPD generated when a development was in use.
- Palmer had failed to satisfy his onus of proof that condition 6 was not reasonably required and that it should be amended.
- Because the conditions stated to apply to the ERA did not apply to the approved use, Mr Palmer's use was not constrained by those conditions. The removal of those conditions would have no impact on amenity.
- The request to delete the conditions relating to the ERA approval was allowed.
- The parties should have the opportunity to consider how appeal 3720 should be determined on the basis of the mixed success which Mr Palmer had had in appeal 4433.