The Land and Environment Court recently considered whether the Court should disallow or amend the development contributions imposed on a development in Ballina.
The Law
Some developments are required to make a financial contribution towards the costs of infrastructure and services that will be required by the people using the development. The requirement to pay a development contribution is usually imposed as a condition in a development consent by the local council.
The Environmental Planning and Assessment Act 1979 (EPA Act) relevantly states (with emphasis added):
7.11 Contribution towards provision or improvement of amenities or services
(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:
(a) the dedication of land free of cost, or
(b) the payment of a monetary contribution,
or both.
(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.
(3) If:
(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and
(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).
(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.
…
7.13 Section 7.11 or 7.12 conditions subject to contributions plan
(1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).
…
(3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.
…
The development
On 27 October 2017, Ballina Shire Council (Council) granted development consent to Mr Young for the use of an existing farm shed as a dwelling, forming a dual occupancy with the existing dwelling at the property. The development consent included a condition that required payment of the following contributions:
On 26 May 2018, Mr Young sought to modify the development consent and requested that the condition requiring payment of development contributions be deleted. This application was deemed to be refused (read more about deemed refusals here), and Mr Young then lodged an appeal with the Land and Environment Court.
Observations from the Court
The Court made the following observations:
- To impose a condition with respect to development contributions, the Council must be “satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area“. This is generally described as there being a “nexus” between the development and the demand for public amenities and services.
- In this matter, the Court was satisfied that there was a nexus between the approved development and the work that would be funded by the development contributions. In particular, the Court stated that:
- there was a nexus between “development for the purposes of a new dwelling and the requirement to improve the road network”;
- there was a nexus between the “district and regional facilities utilised across the district and region respectively… to accomodate the demands of an increasing population”;
- there was nothing unreasonable about the way in which the Council had determined to impose development contributions.
- It is not enough to make submissions to the Court about the inherent unreasonableness of development contributions. There must be clear evidence to establish why contributions payable are unreasonable in the particular circumstances of the case.
Key points to take away
If you are considering challenging the reasonableness of a condition with respect to development contributions, it is critical to ensure that you have received expert advice to establish that the contributions payable are unreasonable in the particular circumstances. This advice will need to be used as expert evidence in any challenge to the Land and Environment Court.