Land and Environment Court New South Wales

• Medium Neutral Citation: Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1
• Hearing dates: 4, 5 October 2012
• Decision date: 04 January 2013
• Jurisdiction: Class 1
• Before: Craig J

Decision

1.  Appeal allowed.

2.  Modify development consent 872/2011/JP granted on 10 November 2011 for construction of an educational establishment - Kindergarten to Year 12 - including associated parking, playing areas and landscaping for land being Lot 3 in DP 32271 and known as 57-69 Samantha Riley Drive, Kellyville in the following manner:

(i)  Condition 1 is amended by deleting reference to Drawing No DA101-Site Plan-Revision F-Dated 09/09/2011 and inserting reference to Drawing No DA101-Site Plan-Revision H-Dated 24/1/12.

(ii)  Insert after Condition 1 the following Condition:

1A - the references to "future emergency vehicle access" and "future pedestrian access" to the local road in plans DA114-Site Parking Plan-Rev B and Plan LA01-Rev C are to be deleted.

(iii)  Delete Conditions 37 and 55(iv).

(iv)  Delete Condition 98.

(v)  Substitute a new Condition 98 in the following terms:

98.  The local road must be built in accordance with this development consent within 6 months from the date of the first occupation certificate issued in respect of the Site and before any further occupation certificate is issued. However, nothing in this consent requires the area of land occupied by that road to be dedicated free of cost.

(vi)  Add the following Condition:

107.  A barrier/No entry sign must be provided at the eastern end of the local road until such time as it is connected to the road that will service the development approved by the Land and Environment Court at 71-83 Samantha Riley Drive as required by Condition 32 in Annexure A to the Court's judgment in Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154.

3.  No order as to costs to the intent that each party should pay its own costs.

4.  Exhibits may be returned.

• Catchwords: APPEAL - modification of development consent pursuant to s 96(1A) of The Environmental Planning and Assessment Act 1979 - condition required school to dedicate public road to council free of cost - whether appropriate to modify consent by deleting condition - no change of substance effected by deletion of condition - whether condition lawfully imposed - absence of identified need for new road pursuant to s 94 of Environmental Planning and Assessment Act 1979 - absence of identified requirement in contributions plan pursuant to s 94AE of Environmental Planning and Assessment Act 1979 - relevant nexus required by s 94(1) of Environmental Planning and Assessment Act 1979 not demonstrated - condition in contravention of s 94B(1) of Environmental Planning and Assessment Act 1979 - granting of application not denied by reason of the conduct of the applicant in obtaining a consent and acting upon it - no discretionary basis upon which to deny the modification sought - appeal allowed
• Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning Policy (Sydney Region Growth Centres) 2006; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979; Native Vegetation Conservation Act 1997; State Environmental Planning Policy (Sydney Region Growth Centres) 2006
• Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502; 148 LGERA 85; Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208; Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85; Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52; 184 LGERA 1; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41; Fitch v Shoalhaven City Council (1987) 67 LGRA 165; Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53; Helman v Byron Shire Council (1995) 87 LGERA 349; King v Bathurst Regional Council [2006] NSWLEC 505; 150 LGERA 362; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 132 LGERA 225; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; 64 NSWLR 695; Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 8 NSWLR 51; Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298; Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154; Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA; 236; Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; 153 LGERA 355
• Category: Principal judgment
• Parties: Australian International Academy of Education Inc (Applicant); The Hills Shire Council (Respondent)
• Representation: T F Robertson SC (Applicant); T S Hale SC (Respondent); Woolf Associates, Solicitors (Applicant); M Pearce - The Hills Shire Council (Respondent)
• File Number(s): 10693 of 2012

Judgment

1 Australian International Academy of Education Inc (the Academy) holds development consent to develop land at 57-69 Samantha Riley Drive, Kellyville for the purpose of a new school. When fully developed, the school will accommodate about 800 students in classes from Kindergarten through to Year 12.

2 The development consent held by the Academy was granted by the Sydney West Joint Regional Planning Panel (the JRPP) on 10 November 2011. That consent is subject to a number of conditions. One such condition is numbered 98 and is expressed as follows:

"98. Dedication of Public Road

No Occupation Certificate can be issued until the proposed 'local road' has been dedicated as public road at no cost to Council, requiring a separate development application or complying development application. This dedication must occur at no cost to Council.

Adequate time must be allowed for the completion of this process so as to not delay the issuing of an Occupation Certificate for the development."

3 Building work authorised by the consent granted by the JRPP has commenced. In April 2012 the Academy applied to the Hills Shire Council (the Council) to modify four conditions of the development consent, including Condition 98. The application was made pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Ultimately, that application was refused by the Council.

4 By reason of the Council's refusal of its application, the Academy appeals to this Court pursuant to s 97AA of the EPA Act. It contends that Condition 98 should be deleted as it is invalid. Alternatively, the Academy contends that the imposition of the Condition should not be imposed as a proper exercise of planning discretion.

5 One of the other conditions sought to be modified by the Academy is directly related to the obligation imposed by Condition 98. Other conditions sought to be modified are now accepted by the Council as appropriate so that the contest central to these proceedings is the imposition of Condition 98.

6 For its part, the Council denies that Condition 98 is invalid. The Council asserts that the imposition of the Condition is both reasonable and necessary, particularly having regard to the provisions of a development control plan applying to development within the North Kellyville precinct, being the area within which the Academy's development is to be carried out. The Council also contends that the power to modify the consent pursuant to s 96(1A) of the EPA Act is not engaged by the application to delete Condition 98. It submits that the development, absent the Condition, would not be substantially the same development as the development for which consent was granted by the JRPP.

Issues

7 Having regard to the competing submissions of the parties and the manner in which the statements of facts and contentions prepared by each party were formulated prior to hearing, the principal issues for determination are:

(1)  whether the development to which the development consent, absent Condition 98, would relate is substantially the same development as that for which consent was granted by the JRPP on 10 November 2011;

(2)  whether Condition 98 was lawfully imposed as a condition of the development consent;

(3)  whether, if Condition 98 was not lawfully imposed, the consent should be modified by deleting that Condition;

(4)  whether, having regard to the Council's development control plan, as amended, it is appropriate to modify the consent by deleting Condition 98; and

(5)  whether, by reason of the conduct of the Academy both in obtaining the development consent and in implementing it since November 2011, it is appropriate to modify the consent by deleting Condition 98.

8 Before turning to consider these issues, it is appropriate to recite those background facts which bear upon the determination of the issues that I have identified.

Background

The Site

9 The land known as 57-69 Samantha Riley Drive, Kellyville is a rectangular allotment of land located on the north-western corner of the intersection between that road and another public road known as Foxall Road (the Site). The Site has an area of about two hectares. On the west it is adjoined by another large allotment of land referred to as the "Moran Site".

10 When the development consent was granted by the JRPP on 10 November 2011 (the Consent) the Site, along with other land located on the northern side of Samantha Riley Drive, was rural residential in character. Land in this vicinity and located on the northern side of Samantha Rile Drive was at the southern extremity of what came to be known as the North Kellyville Precinct. The relevance of this description will shortly become apparent.

 

Statutory planning controls

11 The principal planning instrument controlling development on the Site and surrounding area is State Environmental Planning Policy (Sydney Region Growth Centres) 2006. The planning controls particular to the Site are those contained in Appendix 2 to that instrument, entitled 'North Kellyville Precinct Plan': cl 7 of the State Policy. In accordance with cl 2.1 of the Appendix, the Site is zoned R2 Low Density Residential. Land uses permissible with consent in that zone include "educational establishments". The school for which consent was obtained was one falling within the definition of "educational establishment" found in the Dictionary to the State Policy.

12 The North Kellyville Precinct Development Control Plan 2008 (the DCP) also related to development upon the Site and its environs. Section 3 of the DCP contains provisions directed to aspects of development within the Precinct. Clause 3.1 is directed to the subject matter of "Street Network and Design". The controls imposed under that head provide for a road hierarchy. As that control was expressed at the time at which both the Consent was granted and the application for modification made, it was a single control that stated:

"1. The street network and road hierarchy is to be provided generally in accordance with Figure 4 and Table 6."

13 Figure 4 referred to in cl 3.1 of the DCP showed Samantha Riley Drive as a sub-arterial road and Foxall Road as a collector road. Relevantly, the figure also showed a "local street" passing through and running parallel to the northern boundary of the Site. This road, which is not presently formed or dedicated, is intended to link Foxall Road with a road running parallel with it to the west and known as Hezlett Road. A "local street" is described in Table 6 to Section 3 of the DCP as a street providing local residential access and designed to slow residential traffic by use of traffic calming devices. The specifications for such a street are depicted in Figure 10, showing dual carriageways separated by a central landscaped grassed swale, with an overall road reservation width of 21.6m.

14 The controls directed to the road hierarchy, as expressed in Section 3 of the DCP, were amended, that amendment intended to become effective on 29 May 2012. Relevantly, paragraph 1 of the road hierarchy controls that I have earlier quoted (at [12]) was maintained but a second "control" was added in the following terms:

"2. Dedication of the public road, all road drainage works for the construction of the widened public footways, including pavement construction, landscaping, any relief drainage works, lighting and street furniture is required to be dedicated to Council at no cost."

As will become apparent later in this judgment, the Academy challenges the validity of the amending DCP said to have become effective on 29 May 2012.

15 Contributions Plan No. 13 North Kellyville Precinct (the Contributions Plan) applied to land within the Precinct, including the Site. The Contributions Plan was apparently prepared and approved under s 94EA of the EPA Act. Part A or Section 1 of the Contributions Plan provides, amongst other things, for roadworks. After identifying the aggregate sum to be contributed per person, contributions "by Dwelling Type" are then stipulated. No basis for any contribution from non-residential land use, including use for an educational establishment, is indicated in the Contributions Plan.

16 Section 2 of the Contributions Plan makes provision for its administration and operation. The Part commences by identifying the principles informing the imposition of a condition requiring a contribution under s 94 of the EPA Act in the following terms:

"1.  A contribution must be for, or relate to, a planning purpose;

2.  A contribution must fairly and reasonably relate to the subject development; and

3.  The contribution must be such that a reasonable planning authority, duly appreciating its statutory duties, could have properly imposed."

In the same paragraph addressing the principles, the Plan states:

"One of the fundamental responsibilities of any Council in imposing Section 94 contributions is to ensure that the contributions levied are reasonable. That is, the works and facilities to be provided must be a direct consequence of the development on which the contributions are levied."

17 Clause 2.5 of the Contributions Plan is important to be noticed. It is headed "Application of the Plan". The first paragraph of that clause provides:

"When a development application for residential development is lodged and relates to land to which this plan applies, Council shall levy contributions on development in accordance with the provisions of this Plan."

No kind of development beyond residential development is identified in that or any other provision of the Contributions Plan as enlivening the entitlement to impose a condition under s 94 of the EPA Act that requires either the payment of a monetary contribution or dedication of land in lieu when granting development consent.

18 Clause 3.5 of the Contributions Plan addresses "Transport Facilities". Clause 3.5.1 indicates that works to be provided under the Contributions Plan include the construction of "sub-arterial roads, traffic signals, roundabouts, cycleways, bus shelters and bridge crossings." Reference is then made to a range of other transport management facilities to be undertaken "directly by the developer as conditions of consent under section 80A(1)(f) of the EP&A Act, the demand for which is considered to be generated entirely by the proposed development." Facilities of that kind are identified as including local roads. Section 80A(1)(f) referred to in that paragraph, enables a condition of consent to be imposed if "it requires the carrying out of works ... " (emphasis added).

19 Finally, the analysis of the road network identified in Section 3.5 of the Contributions Plan identifies the need for road widening of Samantha Riley Drive. The road widening so identified encroaches across the southern boundary of the Site and includes a splay at the intersection between Samantha Riley Drive and Foxall Road.

The development application

20 The application, whereby consent was sought to develop the Site as a school, was lodged with the Council in December 2010. The various site plans included among the architectural drawings and forming part of the application were subsequently approved by the grant of the Consent. Those site plans showed a strip of land 21.6m wide within and parallel to the northern boundary of the Site. No development for any purpose associated with the school was shown as being intended for this strip of land.

21 Plan DA114, Issue B, showed the northern boundary of the Site along which was written the words "Existing Boundary". Along the southern boundary of the 21.6m wide strip of land were the words "Proposed Boundary after Local Road built". This strip of land was in the location of the "local street" identified in Figure 4 to Section 3 of the DCP. Elsewhere in the architectural drawings, ultimately approved in the Consent, the strip of land to which I have referred was identified as "Future New Road".

22 Notations on the architectural drawings near to the southern boundary of the "Future New Road" indicate the positions, without detail, of "Proposed Future Pedestrian Entry" and "Proposed Future Emergency Vehicle Entry" respectively. The Academy seeks the deletion of these notations from the plans, as entry to the Site from this northern strip of land is neither intended nor necessary. All pedestrian and vehicular entry is intended to be gained from Foxall Road.

23 The architectural drawings also showed part of the southern section of the Site adjacent to Samantha Riley Drive and its intersection with Foxall Road as being devoid of any development associated with the intended school use of the Site. The existing southern boundary is shown as an 'adjusted' southern boundary and noted as being 'Proposed Boundary after road widening". The area so identified in the drawings conforms to the area required for widening of Samantha Riley Drive as indicated in the DCP.

The deemed refusal of the development application

24 As a result of delay in the determination of its development application, the Academy appealed to the Court pursuant to s 97 of the EPA Act on the basis that its application was deemed to have been refused: s 82 of the EPA Act. The appeal was fixed for hearing in November 2011. Prior to the hearing, Statements of Facts and Contentions had been filed by the parties in accordance with the Court's practice requirements. Among the issues identified by this process was the requirement by the Council that the Academy dedicate free of cost the strip of land within the northern section of the Site required as part of a "local street" in accordance with the DCP.

25 Following the grant of the Consent on 10 November 2011, the Academy sought to discontinue its appeal to the Court. The Council contended that leave to discontinue should be granted only on condition that the Academy accept Condition 98 and further that it would not challenge the validity of that Condition in any future proceedings. In a reserved judgment delivered on 17 November 2011, Biscoe J refused to impose such a condition upon the discontinuance of the proceedings (Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208). Relevantly, his Honour said at [14]:

"14. A case such as the present differs from ordinary civil litigation in that the occasion for the applicant to discontinue its appeal against a deemed refusal of development consent was the intervening decision of the consent authority to grant development consent, as permitted by s 82(2) of the EPA Act. The decision obviates the need for this Court to determine whether development consent should be granted. In my opinion, in such circumstances, an applicant ordinarily should be given leave to discontinue without imposing a term that restrains it from contesting in the future, if it wishes to do so, the validity of a condition of the consent that otherwise would have been agitated in the appeal."

Development of the Moran Site

26 As I have earlier indicated, adjoining the Site to the west is a large area of land known as the Moran Site. It has an area in excess of two hectares and is located at 71-83 Samantha Riley Drive, Kellyville. The northern section of that Site is also traversed by the proposed "local street" that passes from Foxall Road through the Site to Hezlett Road in the west.

27 On 22 October 2010, a Commissioner of the Court granted conditional development consent for the construction and operation of a 150 bed residential care facility on the Moran Site (Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154). In the course of giving judgment in that matter, the Commissioner observed at [19] that "there is no coordination of adjoining property owners to achieve a continuous section of the new future local street ... to connect to an existing public road.":

28 The lack of coordination of adjoining property owners to achieve the new "local street" resulted in a condition of that consent allowing temporary access from Samantha Riley Drive. However, Condition 32(i) required the developer of the Moran Site to undertake full width construction of the local street along the northern boundary of that Site. That construction was required to be undertaken in accordance with specifications stipulated in the Condition.

Conditions of consent to be modified

29 I have already indicated that there are four conditions of the Consent which the Academy seeks to have modified. It also proposes an additional consent. All of these conditions relate to the proposed "local street".

30 Condition 1 identifies the architectural drawings which are approved. The Condition requires that development be carried out in accordance with those plans. Drawing DA 101, revision F is the drawing that identifies proposed future applications to provide both pedestrian and emergency vehicle access from the new "local street". As access for neither purpose is now proposed, reference to that drawing is proposed to be deleted and reference to a new drawing DA 101, revision H, is proposed, deleting any reference to any form of access to the Site from the new street. I do not understand this modification to be opposed by the Council.

31 Conditions numbered 37 and 55(iv) each refer to the provision of a temporary turning head within the Site and at the western end of the new "local street". Deletion of these Conditions is sought as the provision of a turning head is unnecessary for any purpose associated with the use of the Site. Again, I do not understand the deletion of those Conditions to be opposed by the Council.

32 Condition 98 has already been identified and its terms quoted. The requirement on the part of the Academy to dedicate the area of the "local street" within the Site is opposed by the Academy and is the central issue in the proceedings. Construction of the road in accordance with the engineering requirements of the Council is being undertaken by the Academy and, as a consequence, it takes no issue with the requirement so to do. Upon completion of work, the "local street" will be constructed within the Site.

33 The Academy proposes an additional condition of consent to be known as Condition 107. That Condition is proposed in the following terms:

 

"107. Use of "Local Road"

A barrier/ No Entry sign shall be provided at the eastern end of the 'local road', until such time as it is connected to the road that will service the development approved by the Land and Environment Court at 71-83 Samantha Riley Drive as required by Condition 32 in Annexure A to the Judgment in Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154."

If the Academy is successful in modifying the Consent by having Condition 98 deleted, I do not understand the Council to oppose the additional condition in the form of proposed Condition 107.

Issue 1: Substantially the same development

34 Having regard to the contentions of the Council on this issue, it is necessary to record the provisions of s 96(1A) of the EPA Act, that being the provision pursuant to which the Academy seeks to modify the Consent. The subsection provides:

"(1A) Modification involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulation so requires, or

(ii) a development control plan if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations and provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification."

35 Paragraph (b) of the subsection is relied upon by the Council to contend that the Academy's application must be refused. No issue is raised by it in reliance upon paragraphs (a), (c) or (d) of the subsection.

36 Essentially, the Council contends that if Condition 98 is deleted from the Consent, there will be a fundamental change to the development for which the Consent was granted. This change, so the Council submits, comes about because the title to the "Future New Road" will remain with the Academy, pending any acquisition by the Council, rather than being dedicated to the Council as a step in implementing the development consent.

37 As expressed in its written outline of submissions, the Council contends that "[t]o delete the condition and associated conditions fundamentally changes the development the subject of the development consent". In support of its submission, it cites the observations of Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298 where his Honour said at [56]:

"56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."

38 While the principle so articulated is accepted, I do not accept that its application in the present case has the consequence for which the Council contends. At the outset, it is important to appreciate that the comparison called for by paragraph (b) of s 96(1A) is between the development, as a whole, in the 'before' case and the development, as a whole, in the 'after' case. While the development for which consent is granted is circumscribed by all conditions of that consent, it would be wrong to undertake the comparative exercise by considering an element of the overall development in the 'before' case with the absence of that element in the 'after' case.

39 The consent authorised the construction of a number of school buildings, car parking, circulation areas, landscaping and ancillary facilities on the Site and their subsequent use for "a school accommodating 800 students" (the "development" identified in the Consent). Condition 55 of the Consent required the Academy to undertake the design and construction of "the proposed New Road" as shown on the approved drawings and confined to so much of that road as was contained within the Site.

40 The deletion of Condition 98 neither changes the purpose of use, the detailed design of school buildings and ancillary facilities, nor does it affect the obligation to construct the new local street. The entire infrastructure for the Site remains to be provided in accordance with the Consent, the road construction being only a minor part of the works and not physically integrated for the purpose for which the Consent was granted.

41 Moreover, the Consent did not, in terms, sanction the use of the new local street as a public road. Upon dedication, title to the road would be transferred to the Council and its use thereafter would be subject to the control of the Council. It may prevent its use for a period until such time as its use becomes viable by connection to other roads in the area. Relevantly, some further step is required to be taken by the Council before use of the road, as a public road, can be undertaken. Condition 98 did not, either in terms or by implication, sanction the use of the "new local road" as a public road. There is no qualitative difference of substance when undertaking the 'before' and 'after' comparison.

42 As I have earlier stated, no development associated with the use of the Site for a school is proposed for the area of the new local street. While "proposed future pedestrian and emergency vehicle entry" across the adjusted northern boundary of the Site was noted on the approved architectural drawings, the prospect that entry for either purpose might, in the future, have been sought is no longer the case, as evidenced by the amended Site Plan proposed in the modification of Condition 1. The Council does not oppose that amendment.

43 Moreover, entry to the Site for any purpose across the northern boundary is effectively proscribed by Condition 48A of the Consent which provides:

"48A. Traffic Management Plan

The Traffic and Pedestrian Management Plan dated 12 September 2011 prepared by David J Thompson of Thompson Stanbury Associates addressing traffic and pedestrian safety at the site is to be implemented in respect of the development. The Traffic and Pedestrian Management Plan may be amended from time to time with the prior approval of Council."

44 The Traffic and Pedestrian Management Plan identified in Condition 48A restricts all pedestrian and vehicular access to and egress from the Site to identified locations along Foxall Road. Consistent with that restriction and for the purpose of providing Site security, the Statement of Environmental Effects lodged as part of the application for modification of the Consent states the intention of the Academy to erect a security fence along the northern boundary of the Site.

45 Taking account of all these matters, I am satisfied that the development of the Site, as it is proposed to be modified by the deletion of Condition 98, will be substantially the same development as that for which the Consent was granted. Qualitatively, the modification does not effect any change of substance and quantitatively it remains the same development.

Issue 2: Validity of Condition 98

46 As its terms make clear, Condition 98 obliges the Academy to dedicate to the Council, free of cost, that part of the Site that is identified as the proposed local road. That requirement relevantly engages the provisions of both ss 94 and 94B of the EPA Act. Section 94(1) provides:

"(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."

47 Section 94B(1) relevantly provides:

"(1) A consent authority may impose a condition under section 94 ... 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)."

The Council does not contend that there is any direction given by the Minister relevant to the determination of the present issue.

48 It is now well settled that s 94, coupled with the requirement for a contributions plan made in accordance with s 94AE, provides the sole source of statutory power to impose a condition of development consent either requiring the payment of a monetary contribution or requiring the dedication of land. That statement of principle was first articulated by a judge of this Court in Fitch v Shoalhaven City Council [1987] 67 LGRA 165. It was further articulated in the judgments of the Court of Appeal in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41. In that case Spigelman CJ said at [22]:

"22. The qualifications and restrictions found in s 94, notably the 'reasonableness' restriction in s 94(2) and the public requirements for the promulgation of a contributions plan, do lead to the conclusion that s 94 is the exclusive power for conditions of the character specifically identified in s 94 i.e. dedication of land or monetary contributions. To go beyond these express conditions and extend the exclusive nature of the power to conditions which may, in some way, be the commercial equivalent of a dedication of land, or the payment of a contribution, in my opinion goes too far."

49 In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; 64 NSWLR 695, Spigelman CJ provided a rationale for the decision expressed in Olivieri. At [15] he said:

"15. The conclusion that s 94 constitutes an exclusive power for the imposition of a condition requiring the dedication of land, as I pointed out in Fairfield City Council v N & S Olivieri Pty Ltd [citation omitted], is based on the application of a principle of statutory interpretation, expressed by Dixon J in one formulation in Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at [7], subsequently frequently applied, in the following way:

' ... When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation and general expressions in the same instrument which might otherwise have been relied upon for the same power."

Observations to similar effect were made in that case by Tobias JA at [132] and [150]. The latter observation was made in the context of excluding a power of the kind presently sought to be exercised in reliance upon the more general power to impose conditions contained in s 80A of the EPA Act.

50 In essence, the Academy identifies the absence of any need for the new road created by the development of the Site for a school, together with the absence of any identified requirement in the Contributions Plan for a monetary contribution or dedication of land, consequent upon the development for the purpose of an educational establishment. In those circumstances it contends that neither the provisions of s 94(1) nor the requirement imposed by s 94B(1) were satisfied with the consequence that Condition 98 was not validly imposed.

51 Further, the Academy points to the fact that, at the time at which the Consent was granted, the DCP did not contain any provision requiring the dedication of new roads identified in Section 3 of that Plan.

52 The Council accepts that s 94, applied in accordance with the principles I have discussed, is the sole source of power to compel, by condition, an applicant for development consent to dedicate land for a public purpose free of cost. However, it contends that such a constraint upon the imposition of a condition does not apply where dedication is volunteered by an applicant for consent. In the present case, the Council contends that upon the proper analysis of the Academy's development application and supporting material, it volunteered the dedication of the new local street.

53 As I have earlier recorded, the development application for the Site was lodged with the Council in December 2010. Not only was the application accompanied by architectural drawings, it was also accompanied by a Statement of Environmental Effects (the SEE). In the course of its submissions, the Council has referred to a number of passages in the latter document from which it contends that, properly understood, the Academy should be seen as intending the dedication of the new local street as an aspect of its application for development consent.

54 The Council's reliance upon the terms of the SEE accompanying the development application is predicated upon a number of references within the document to the provision of the local road on the northern section of the Site in accordance with the DCP. For example, the following appears beneath an excerpt from the DCP layout plan enlarged to show the Site and its immediate environs:

"Excerpt from North Kellyville Precinct Indicative Layout Plan (Figure 2), showing, inter alia, a 'Road' running along and within the northern section of the site. This road is designated 'Local Street' in the DCP, and is to serve the site as well as properties to the west, including the Moran development site. Foxall Road is designated 'Collector Street'."

55 The SEE also seeks to identify the manner in which the school development as proposed met the requirements of the DCP, in the form that the DCP then took. When addressing Section 2 of the DCP, the author of the SEE at p 50 states that the proposal "allows for all future roads, cycleways, roadside plantings and water quality measures as envisaged by the Indicative Layout Plan". Reference is made to the "future provision for a new Local Street running along the northern section of the site."

56 On the same page of the SEE, Section 3 of the DCP is addressed. Against that reference, the statement is made that roadworks are proposed "in accordance with the road hierarchy and concept road designs" as outlined in the DCP. Further, in the conclusion to the SEE the following statement is made by the author:

"A common roads and drainage strategy is proposed for both the Moran aged care development site and [for the Site] in order that the two properties can be developed in a coordinated manner that will give effect to the local road system set out in the Indicative Layout Plan of the North Kellyville DCP."

57 A number of other statements to similar effect are identified by the Council. For reasons that will shortly become apparent, it is unnecessary to refer to all of these statements. It is sufficient to note for present purposes that no statement is made, in terms, that the land required for the new local street across the northern section of the Site was to be dedicated, free of costs, to the Council.

58 The Council also relies upon notations on the architectural drawings in support of the inference to be drawn that dedication of the new local street was intended by the development application. In particular, it relies upon the following:

(i)  the identification of that road, conformably with the DCP, as "Future New Road";

(ii)  the notation against the 'adjusted' northern boundary with the words "proposed boundary after Local Road built"; and

(iii)  reference to the proposed future pedestrian and emergency vehicle entry to the Site from the "Future New Road".

The Council submits that the only inference to be drawn from statements of this kind is that the road would be provided by the Academy to the Council as a public road.

59 Having considered the statements to which the Council has drawn attention in the various documents to which it has referred, I cannot conclude that there is expressed a clear intention on the part of the Academy to dedicate the road free of cost to the Council. There can be no doubt that the Academy indicated its intention not only to provide for the road, in the sense that no development for or associated with the school was intended within the area identified for that road, but also that it would construct the road in order that it be available for public road use when title to it was acquired by the Council as a roads authority. So much is made manifest not only by the statements made, read as a whole, but also by dint of the fact that plans submitted to the Council included engineering drawings for road construction. Statements to the effect that "provision" would be made for the new road identified in the DCP must be considered in the context of a control plan that did not identify an obligation to dedicate new roads identified in that plan free of cost. Whether such obligation could be imposed would depend upon the nature and effect of the development being determined.

60 Although I have not been persuaded that, properly considered, the development application and accompanying documents initially lodged with the Council manifested an intention to dedicate the new northern road to the Council, on the most charitable view of the Council's contention, it might be said that the statements upon which reliance is made created uncertainty as to the Academy's intention in this regard. Importantly, any such uncertainty was removed by events that occurred prior to the determination of the development application by the JRPP on 10 November 2011.

61 The Academy's development application was first considered by the JRPP on 1 September 2011. A report recommending conditional approval of the application was prepared by the Development Assessment Coordinator of the Council for consideration by the Panel. In that report reference is made to the construction of the new local street along the northern boundary being undertaken as part of the development. Under the heading "Civil Works" the report states:

"The reconstruction of Samantha Riley Drive along the site's frontage to the same is included under Section 3.5.3 of Council's Contribution Plan 13. The reconstruction of Foxall Road and the construction of the new 'local road' located wholly within the subject site adjacent to its northern boundary is not included under Section 3.5.3 of Council's Contribution Plan 13 and therefore it is the responsibility of the developer to provide for the construction (or reconstruction) of these roads as per Section 3 of the DCP and Section 3 of Council's Contribution Plan 13.

Notwithstanding the above, the reconstruction of Foxall Road and the construction of the new "local road" are necessary infrastructure upgrades required to be provided as part of the subject development in any case in order to provide for the additional vehicular and pedestrian traffic generated by the same.

The new "local road" is located wholly within the subject site adjacent to its northern boundary and therefore the developer is responsible for the full width construction of this road."

The report also attached proposed conditions of development consent, including Condition 98.

62 On 1 September 2011 the JRPP deferred consideration of the Academy's development application. It identified a number of matters that required further attention, including the provision of further pedestrian and traffic management information. The request for the latter topic to be addressed resulted in the preparation and submission of the Traffic and Pedestrian Management Plan identified in Condition 48A of the Consent to which I have earlier referred.

63 Following the decision of the JRPP to defer consideration of the development application, the report that had been prepared for the Panel, including the proposed conditions of consent, together with the Panel's further requirements were notified to the Academy and its consultants. By letter dated 21 October 2011, the architects retained by the Academy wrote to the Council stating that while the Academy was prepared to construct the road, it was not prepared to dedicate the proposed local road to the Council, free of cost. The letter indicated that upon completion of construction no objection would be raised to the acquisition of the local road. The architect's letter further stated that pending acquisition the Academy was prepared to negotiate to provide an easement across the road so as to accommodate development on the Moran Site.

64 A further response was provided to the Council on behalf of the Academy. It reiterated that dedication of the constructed road was not intended. The response continued:

"[T]he application does not require access or use of the public road for the development and hence there is no nexus between the public road and the development. Any need for a road is satisfied by its construction as proposed in the application - dedication as a public road has nothing to do with the development. If it is necessary to provide easements of access and drainage for the Moran Development, that can be negotiated with Moran. If it is necessary to provide a drainage easement to Moran and Council, that too can be provided, so long as the easements are extinguished immediately before acquisition of the land by Council. As well, the imposition of the condition is unreasonable. The land required to be dedicated free of cost is the applicant's land, but there is no s. 94 plan to support the condition. The dedication requirement is therefore contrary to s. 94 and is not supported by s. 80A(1) because it extends beyond the carrying out of works authorized by s 80A(1)(f) and is not authorized to be imposed by s 80A(h) [sic]. There is therefore no legal authority for the condition."

65 A further report was prepared by the Council's Development Assessment Coordinator for the meeting of the JRPP held on 10 November 2011. That report included reference to the Traffic and Pedestrian Management Plan which had been received and recommended its incorporation as a condition of development consent. The report also made clear that the Academy opposed the dedication of the proposed new local street free of cost by referring to and quoting extensively from the response received by the Council from the Academy or those acting on its behalf. Notwithstanding those responses, the author of the report to the JRPP recommended the imposition of Condition 98.

66 I mention these matters in some detail because the development application relevant to be considered must be that which was propounded at the time at which it was determined. Whatever uncertainty may have existed as to Academy's intention for the new local street prior to September of 2011, by 10 November it was abundantly clear that dedication free of cost did not form part of the Academy's development application. The report to the meeting of the JRPP on 10 November, accurately stating the Academy's position in this regard, left no doubt as to the understanding that the JRPP must have had at the time of making its decision.

67 The Council accepts that the time at which the application and its detail is to be understood is at the time of determination of the development application. However, it submits that the position articulated in the responses made by the Academy between September and November 2011 manifested a proposed amendment to the development application to which the Council had not consented in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000.

68 I do not accept that submission. I have earlier determined that the development application as initially submitted did not manifest an intention to dedicate the area of the new local street and, to the extent that its position was ambiguous, the statements made by or on behalf of the Academy in the latter part of 2011 did no more than clarify its position. Those statements did not have the affect of amending the development application.

69 It follows that the Council has not made good its submission that the Academy volunteered to dedicate the new local street free of cost to the Council. The facts simply do not support that conclusion. However, even if, contrary to my findings, dedication of the new local street was an element of the development application, that circumstance would not enliven the power to impose Condition 98.

70 The power to impose a condition of development consent is found in s 80A of the EPA Act. As cases such as Olivieri and Anambah make clear, the power to impose a condition requiring dedication of land is constrained by s 80A(1)(h) to one "authorised to be imposed" (relevantly) by s 94. The fact that dedication of land may be volunteered does not authorise the imposition of a condition requiring dedication if that obligation cannot be sustained by reference to s 94, as qualified by s 94B(1).

71 In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; 153 LGERA 355, Jagot J was required to consider the interrelationship between the provisions of the EPA Act relating to voluntary planning agreements and those relating to the imposition of conditions requiring the payment of a monetary contribution. The applicant in that case had proposed the payment of a substantial sum towards acquisition of land in an adjoining local government area. The land to be acquired was intended as an offset area to compensate for the loss of a threatened ecological community on the land proposed to be developed. The applicant proposed that a condition of development consent be imposed upon it under s 80A(1)(a) in order to secure payment of its intended monetary contribution. In the alternative, it proposed to enter into a voluntary planning agreement to give effect to its intended contribution towards acquisition of the off-set site.

72 The development application by Sanctuary was refused on merit grounds. However, in the course of giving her judgment, Jagot J made the following observations at [45]:

"Given the applicants' offer, the question of the extent of power available under s 80A does not arise. Nevertheless, it is appropriate that I record that I do not accept the applicants' arguments about the capacity to impose such a condition absent the offer to enter into a planning agreement ... . Absent the provisions relating to planning agreements, s 94 was the exclusive source of power for a consent authority to impose conditions requiring the payment of money [Olivieri, Anambah and Fitch are cited in support of that proposition]. The applicants' offer is to pay a monetary contribution, albeit to another council. The fact that the condition is not one authorised by a Contributions Plan and that the money will be expended outside the area of Baulkham Hills Shire Council does not mean that the condition is free from the constraints imposed by the scheme of s 94, and able to be imposed under s 80A(1). Contrary to the applicants' submission, s 80A(1)(a) is not a source of residual power to impose conditions requiring payment of money outside the scheme of s 94 ... .

The scheme is also not ousted by the applicants' agreement to the condition. The provisions relating to planning agreements turn on the developer's agreement, but agreement cannot give the consent authority power it does not have under the statute."

73 Her Honour's observations are, with respect, apt to be applied to the present case. The Council did not contend that the statements made on behalf of the Academy in the SEE supporting the development application and the other documents to which it referred should be construed as an offer to enter into a voluntary planning agreement in accordance with s 93F of the EPA Act. In the absence of such an agreement the imposition of Condition 98 cannot be sustained on the basis that it was impliedly accepted by the terms in which its development application was submitted to the Council. It can only be sustained if sanctioned by s 94.

74 As I understood its submission, the Council sought to rely upon the decision of Sheahan J in Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52; 184 LGERA 1 in support of its contention that an aspect of a development application proposing dedication of land may, by dint of that fact, be the subject of a condition of development consent. In that case, his Honour upheld the validity of a development control plan in which a new public laneway was identified as passing through land being developed by the applicant. The development control plan contained no provision stating the manner in which the laneway was to be created when land on which it was to be located was the subject of a development application. Conquest proposed its creation as a component of its development application. By proposing the laneway, Conquest derived planning benefits for its proposed development. Dedication of the area of the laneway was not mandated by a condition of development consent.

75 I do not find the decision in Conquest to be of any assistance to the Council in the present matter. The decision in that matter turned upon the provisions of the EPA Act pertaining to the making of a development control plan. It did not involve any determination as to the power to impose a condition requiring the dedication of land that was not founded upon s 94 of the EPA Act. Unsurprisingly, having regard to the issues agitated in that case, no reference was made to the observations of Jagot J in Sanctuary Investments Pty Ltd v Baulkam Hills Shire Council. As I have already indicated, the observations there made and which I have cited are those pertinent to the present matter.

76 In order to engage the power to impose Condition 98 of the Consent, it is necessary that the dedication of land was required because the school proposed by the Academy would, or was likely, to increase the need for the new local street (s 94(1)) and that a Condition to that effect was of a kind "allowed by and determined in accordance with" a Contributions Plan. On the evidence before me, neither requirement was met.

77 In order to fulfil the requirement of s 94(1) it is necessary that there be a nexus between the development proposed and the contribution or dedication required. Relevantly, that nexus requires that there be identified a need or likely need for the new local street consequent upon development of the Site for a school, taking account of the conditions that circumscribe the manner in which that development may be carried out. The requirement is appropriately summarised in the Control Plan when it states that "the works and facilities [in this case, land dedication] to be provided must be a direct consequence of the development on which the contributions are levied."

78 When reporting to the Council upon the Academy's present application for modification of the Consent, the Council's Development Assessment Coordinator stated that it would be "preposterous to suggest that the road will not service the school". That statement appears to be supported by the observation that "(p)arents, students, teachers and bus services will utilise the section of [the new local road] regardless of whether there is a formal pedestrian or vehicular access from the school to this road."

79 The rationale for the Assessment Coordinators statement would appear to overlook the detail of the development to which the consent relates and the conditions circumscribing use. The Traffic and Pedestrian Management Plan identified in Condition 48A limited all access to and egress from the Site to Foxall Road. Moreover, it was not suggested that the parking provision made on site together with the set-down/pick-up facilities, all accessed from Foxall Road, were inadequate such that on-street parking would be required. Bus bays are also provided in Foxall Road with student or pedestrian access also confined to that road.

80 The position advanced by the Council overlooks the fact that the possibility of community benefit as well as benefit to those resorting to the school is not sufficient, of itself, to engage the provisions of s 94(1). The need for something more than "benefit" was recognised by Tobias JA (Mason P and Young CJ in Eq agreeing) in Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 132 LGERA 225 where, addressing s 94(1), his Honour said at [41]:

"41. Although I accept that it is necessary for the statutory phrase to be read in context, I cannot accede to the proposition that the word 'require', especially when used in conjunction with the expression 'increase the demand for', means no more than 'will benefit from'. Both statutory phrases - 'require the provision of' and 'increase the demand for' - require the decision-maker to focus on the particular development and to then ask what types of public amenities or public services that development will or is likely to require the provision of or increase the demand for. The Council's approach concentrates on the identification of a particular public amenity or public service and then asks whether the particular development is capable of benefiting from it. This, in my opinion, shifts the emphasis from what was intended by the drafter of the provision.

42. I therefore have no difficulty in attributing the concept of 'need' to the word 'require' in the first limb as well as to the expression 'increase the demand for' in the second limb of the statutory phrase."

81 I have earlier recounted, more than once, those details of the development for which consent was obtained, indicating that implementation of the Consent did not give rise to any need to dedicate the new local street as a public road. The use of the Site for school purposes in the manner proposed by the consent quarantined that use from any need for that road. That those resorting to the Site may have derived some benefit from the existence of the road, as a public road, is not to the point. The requirement to engage s 94(1) of the EPA Act in order to sustain the imposition of Condition 98 is not satisfied.

82 A number of provisions of the Contributions Plan have earlier been identified by me. Those provisions are relevant to the requirement that any contribution or dedication of land be of a kind allowed by and determined in accordance with a Contributions Plan. To those provisions earlier referenced I would add the provisions of Section 3 or Part C identifying specific facilities and their nexus to contemplated development. Importantly, cl 3.1 is headed "Residential Development Nexus" and sets out supporting information "for the demographic assumptions pertaining to the future resident population of North Kellyville". The Section adds support to the earlier provisions indicating that the purpose of the Contributions Plan is to identify monetary contributions or land dedication engendered by residential development.

83 However, the critical provision for present purposes is cl 2.5 that I have earlier quoted (at [17]). That clause makes clear that the levying of contributions is to be made when determining "a development application for residential development". The development application lodged by the Academy was not an application of that kind. No other provision of the Contributions Plan identifies an entitlement on the part of the Council to levy a contribution or seek dedication for development of land for the purpose of a school. Moreover, the Plan provides no formula for calculating contributions to be made by a school.

84 It follows that the imposition of Condition 98 cannot be sustained by reference to s 94B(1). Even if I was incorrect in determining, as I have, that the relevant nexus required by s 94(1) has not been demonstrated, the absence of a Contributions Plan providing for the dedication sought by the Council is fatal to the lawful imposition of Condition 98.

Issues 3 and 5: Whether a determination of invalidity should be made having regard to the conduct of the Academy

85 In anticipation of a conclusion that Condition 98 could not be sustained by reference to s 94, as qualified by s 94B(1), the Council submits that I should not formally determine that the Condition is invalid and accede to the Academy's application by deleting the Condition from the Consent. While the Council expressly disavows an estoppel argument, it maintains that, as a discretionary consideration, the Court should not accede to the modification application by reason of the Academy's conduct.

86 In essence, the Council relies upon the conduct of the Academy in discontinuing its development appeal in 2011 when it had the opportunity to then debate and have determined the validity of Condition 98. Rather than contest the Condition in those proceedings when the grant of development consent itself was at stake, notwithstanding the determination of the JRPP on 10 November 2011 (cf s 82(3) of the EPA Act), the Academy took the benefit of that decision and successfully sought discontinuance of its appeal. It subsequently commenced development in accordance with the consent granted but now seeks removal of the Condition which was an issue in the earlier appeal. In effect, the Council submits that the Academy should not have the benefit of that course, as it did not subject itself to the burden of establishing invalidity of the then proposed Condition 98 when the grant of consent was at stake.

87 In support of its submission, the Council relies upon observations of Bignold J in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236. His Honour was there determining an application under the former s 102 of the EPA Act for modification of a consent that approved development of land for new residential development. The Condition sought to be deleted required payment of monetary contributions. At the time of the application, the payment sought by the Condition in question had been made to the Council.

88 In the course of his judgment, his Honour stated that the case made by the applicant depended upon it "successfully impugning the validity and reasonableness of an element" of the council's decision to grant development consent. That consent had been implemented. His Honour further observed that the applicant had taken "the benefit of the grant of development consent but seeks to be relieved on [sic] one of the burdens of that grant" (at 243).

89 Later in his judgment, Bignold J acknowledged that the power to grant a modification was not limited to situations involving changed circumstances from those existing at the time at which development consent was granted but indicated that the absence of any change in circumstances or new material was "a relevant consideration in the exercise of the statutory discretion". His Honour continued (at 245):

"A related discretionary consideration that weighs strongly against granting the application in the present case is the conduct of the applicant in accepting the benefit of the development consent but seeking to be relieved of the burden created by the imposition of condition D22, not only belatedly but after the burden had been accepted by the applicant."

The Council seeks to apply these observations, by analogy, to the present case.

90 I do not regard the observations made in Progress and Securities as apt to be applied in the present case. Indeed, subsequent decisions both in the Court of Appeal and in this Court have significantly limited any principle to be derived from that case. In Olivieri, Cripps AJA referred to the decision in Progress and Securities and said at [83]:

" ... it is, in my opinion one thing to assert that a party who has accepted the benefit of a transaction must also accept its burden, it is quite another to conclude that a condition not authorised by law cannot be challenged if the development has been carried out. The discretion of the Court derives from the Act and cognate legislation and not from equitable doctrines. In planning law there is an evident practical difficulty in attempting to apply the 'benefit/burden' doctrine as, for example, where a third party challenges the validity of a development consent which may have been imposed without lawful entitlement consequent of an arrangement being entered into between a developer and a council."

91 The observations of Cripps AJA in Olivieri have been applied in a number of decisions in this Court. They were applied by Jagot J in King v Bathurst Regional Council [2006] NSWLEC 505; 150 LGERA 362 to sustain a challenge to the validity of conditions of a development consent requiring the payment of a monetary contribution notwithstanding the fact that the subdivision to which the consent related had already been implemented. Her Honour took a similar approach in Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502; 148 LGERA 85 where her Honour added at [70]:

"70. In this case, the Court granted the development consent. It seems to me there may be many reasons why, in that context, an applicant may not place in issue the s 94 contributions during the s 97 appeal. I do not consider that an applicant, thereafter, is necessary precluded from seeking to modify s 94 conditions by not having raised the issue during the s 97 appeal."

92 These observations are apt to be applied in the present case. Clearly, the entitlement of the Academy to challenge Condition 98 was preserved by the decision of Biscoe J to which I have earlier referred. His Honour determined at [14] that the conditional discontinuance sought by the Council should be denied, imposing no restraint upon the Academy "from contesting in the future, if it wishes to do so, the validity of a condition of the consent that otherwise would have been agitated in the appeal."

93 For these reasons, I do not consider that the conduct of the Academy identified by the Council should disentitle it to seek deletion of Condition 98 on the ground that its imposition was beyond power. Moreover, as I understand the submission of the Council, it accepted that Condition 98 would appropriately be deleted if found to be imposed beyond power and the submissions founded upon Progress and Securities were unsuccessful (Tcpt 39: 5-10 on 5/10/12).

Issue 4: The development control plan and related issues

The development control plan

94 In light of my determination that Condition 98 was not validly imposed having regard to the provisions of s 94 and s 94B(1) of the EPA Act, it is unnecessary to address the Academy's argument founded upon the invalidity of the amendment purportedly made to the DCP in May 2012. The validity of the Condition must be ascertained by reference to the law that pertained at the time at which the Condition was imposed. The amendment made to the DCP cannot have retrospective effect in validating the imposition of the Condition.

95 More significantly, even if, in November 2011, the DCP had contained the additional control imposed by the amendment, requiring dedication of roads free of cost, that provision would not, by its own force, have empowered the imposition of the Condition. The decisions of the Court of Appeal in Anambah and Hammersmith make clear that s 94 contains its own code for the imposition of a condition requiring dedication of land as a condition of development consent. The section, as framed, cannot be overridden by the provisions of a development control plan. As a consequence the statutory provision prevails.

96 As I understood the Council's submissions, it was contended at one point that Condition 98 should not be deleted, in exercise of the Court's discretion, because so to do would render it inconsistent with the DCP. However, assuming invalidity of the Condition, as I have determined to be the case, and accepting the concession made by the Council as to the consequence of such a determination, I need not address this issue further. It is sufficient to record that even absent the concession, the amendment purportedly made to the DCP would not have persuaded me that the Condition should be maintained.

97 Mr Robertson SC, on behalf of the Academy, submitted that the amendment made to the DCP in 2012 was invalid because there had been a failure to abide by the procedural requirements of the EPA Act and the Regulation for the notification, exhibition and making of the amending development control plan. The Council denied invalidity although did not engage with the breaches alleged on behalf of the Academy. Rather, the Council sought to argue that the Academy was not entitled to challenge the validity of the amending development control plan in these Class 1 proceedings. As I have indicated, in light of my determination as to the validity of Condition 98, I do not need to determine the challenge to the validity of the control plan for the purpose of determining the Academy's appeal.

98 However, in the course of responding to the Council's submissions, Mr Robertson properly raised two decisions in this Court which would appear to question the right of an applicant for modification of a development consent to question the validity of a condition of consent which is sought to be modified by deletion. Although not raised by the Council in addressing any of the issues before me, It is appropriate that I briefly consider those two cases.

99 In Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 a question of law was raised in Class 1 proceedings as to whether a consent had lapsed, having regard to a condition of development consent. The Class 1 appeal was for modification of a development consent. In response to the respondent council's argument that the condition of development consent had caused the consent to lapse, the applicant for modification sought to argue that the condition was, in part, invalid. The council submitted that it was not open in a Class 1 appeal to challenge the validity of the condition as the applicant sought to do. Pain J upheld that submission. At [15] her Honour said:

"15. In Maitland City Council v Anambah Homes Pty Ltd [citation omitted] Tobias JA (Spigelman CJ and Ipp JA agreeing on this issue) recognised at [94] that a challenge to the validity of a condition of consent in a Class 1 appeal against the grant of that conditional consent was only made possible by the existence of concurrent Class 4 proceedings which gave the Court power to make a declaration of invalidity of the condition."

I will shortly refer to the paragraph in Anambah to which her Honour refers.

100 Prior to the reference to Anambah, her Honour had referred to two earlier decisions of this Court which suggested an inability to declare invalidity of a condition of consent in Class 1 proceedings. Her Honour then continued:

"16. All three cases suggest that the Council's argument is correct, namely that it is not open in these Class 1 proceedings to seek to have a condition of development consent or part thereof declared invalid. That can only occur in Class 4 proceedings and there are none on foot ...

17. The general principle that the validity of a condition of development consent cannot be challenged in Class 1 proceedings applies in this matter."

101 The context in which the observations of Tobias JA were made at [94] of Anambah need to be noticed. His Honour was there recounting the history of proceedings in this Court. At [93] he recorded a contention made in this Court by Maitland Council that it was not open to the applicant for modification of a development consent to seek deletion of a condition on the basis of its invalidity. That issue having been raised and described by his Honour as "jurisdictional", he recorded in [94] that proceedings in Class 4 had been commenced seeking a declaration as to invalidity of the condition in question and noting that when the proceedings came before a judge of this Court both the Class 1 and the Class 4 proceedings were consolidated. He continued at [94]:

"Her Honour then proceeded to hear and determine those proceedings. As she declared Condition 36 to be void and of no effect, she could only have done so in the Class 4 proceedings from which an appeal lies to this Court on both issues of fact and law."

His Honour did not thereafter address the power of the Court in Class 1 proceedings involving an application for modification of a consent to determine the validity of a consent condition.

102 It is understandable, with respect, that both Pain J in Birdon and Tobias JA in Anambah would have identified Class 4 proceedings as being those in which a declaration of invalidity could be made. This would explain the observation of Pain J in Birdon at [16]. Her Honour's observation at [17] as to a "general principle" against challenging the validity of a condition in Class 1 proceedings may have been intended to reflect an incapacity to make a declaration in proceedings of that Class.

103 No reference was made in Birdon to the decision of the Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349. The leading judgment in that case was delivered by Handley JA (Kirby ACJ and Priestley JA agreeing). The appeal was from Class 1 proceedings in this Court in which the appellant challenged the validity of a development application on the basis that it was not accompanied by a fauna impact statement as was required by the EPA Act, in the form that it then took, and further that a condition of consent was invalid. While the appellant was unsuccessful before this Court, it succeeded before the Court of Appeal.

104 In the course of the Appeal, it was contended that a challenge to the validity of a development consent could not be raised in Class 1 proceedings but was confined to proceedings in Class 4 of the Court's jurisdiction. In response to that submission, Handley JA said (at 360):

"In my opinion the existence of the Land Court's jurisdiction in class 4 proceedings provides no justification for confining the scope of its jurisdiction in class 1 proceedings. A party by appealing against a decision does not ordinarily lose his rights to challenge the validity of that decision in the appeal: [citation of authority omitted]. In both Scurr and Pioneer Concrete objections to the validity of decisions by the Council were successfully raised in merit appeals. The Land Court has frequently entertained legal objections in merit appeals: [citation of authority omitted]. Section 104A of the Act purports to exclude challenges to the validity of consents except in proceedings commenced within three months of public notification. It does not restrict such challenges to class 4 proceedings. In my opinion, therefore, Mr Hemmings' objection should be overruled."

105 I am not aware of any subsequent decision of the Court of Appeal which has qualified or dissented from the observations of Handley JA in Helman. Although not referred to in that case, they are consistent with the observations of the joint judgment of the Court of Appeal (Samuels, Priestley and McHugh JJA) in Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 8 NSWLR 51. In the context of an appeal to that Court from proceedings brought in Class 3 of this Court's jurisdiction, the Land Council challenged the validity of a certificate given under s 36(8) of the Aboriginal Land Rights Act 1983. The Court of Appeal sustained the right of the Land Council to challenge the validity of the certificate albeit in Class 3 proceedings. Reference was made to s 22 of the Land and Environment Court Act 1979 (the Court Act) as providing sufficient statutory authority for the Court, in that class of jurisdiction, to determine the validity of the certificate. I see no reason why, by analogy, that should not be applied to the present case.

106 The second case to which I was referred was Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53. That also involved an appeal in Class 1 of the Court's jurisdiction brought under the Native Vegetation Conservation Act 1997. The appeal related to a stop work order brought under that Act. The applicant sought to raise legal issues directed to the validity of the order. Pain J allowed one of the two legal issues raised in the proceedings to be argued but denied the second legal issue directed to "alleged breaches of numerous administrative law principles (at [25])."

107 After referring to the provisions of the Court Act which identified the class of jurisdiction into which various proceedings are allocated Pain J referred to the decision of the Court of Appeal in Helman. In that context, her Honour said at [38]:

"38. Helman is not authority for the proposition, in my view, that any legal challenge to an administrative order, regardless of its nature, is maintainable in Class 1 proceedings. Helman was not dealing specifically with judicial review proceedings, as in this case. While legal questions of invalidity of a decision can be raised in Class 1 matters, a challenge to the power of the decision-maker to make the decision at all is not appropriate in Class 1 proceedings, in my view."

108 Her Honour also referred to the provisions of s 22 of the Court Act but indicated at [41] that application of the section did not have the consequence "that all issues the Applicant wishes to raise must be or can be dealt with in these Class 1 proceedings."

109 There are no doubt good and practical reasons why some legal issues that arise in the determination of proceedings brought in Classes 1, 2 and 3 of the Court's jurisdiction might better be determined in Class 4 proceedings. Both discretionary considerations applicable to the grant of either declaratory or injunctive relief may more appropriately be addressed in proceedings of that kind and, in the interests of the parties, appeal rights are greater if proceedings are brought in Class 4 of the Court's jurisdiction. However, it seems to me that practical or discretionary considerations aside, the manner in which the Court Act divides the exercise of jurisdiction among Classes 1, 2, 3 and 4 provide no legal basis on which to deny the power to determine the invalidity of actions taken by a statutory authority when exercising jurisdiction in proceedings allocated to Class 1, 2 or 3.

110 I do not understand Birdon or Greentree to have established a principle that in proceedings brought in Class 1, 2 or 3 of the Court's jurisdiction, the Court cannot (rather than should not) determine the validity of an administrative decision that is germane to the determination of the proceedings. If, contrary to my understanding of the decisions, such a principle has been articulated, then I respectfully disagree with it. No legislative provision sanctions such a principle: s 22 of the Court Act speaks against it.

Other matters

111 In its written outline of submissions, the Council submitted that the modification sought is inconsistent with the aims and zoning objectives of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the State Policy) and should thereby be refused. No elucidation of this submission was undertaken orally. The written submission refers to "the detail" identified in Contention 3 of the Council's Statement of Facts and Contentions filed in this appeal.

112 Contention 3 recites the objective expressed in paragraph (f) of cl 2 of the State Policy which is "to provide for the orderly and economic provision of infrastructure in and to those growth centres." The contention is that the modification application is inconsistent with that objective although why that is so is not explained. Implementation of the development consent has resulted in the Academy making provision for an element of infrastructure, namely the proposed new local street by constructing it in accordance with the Council's requirements. Clause 2(f) says nothing as to who is to bear the cost of providing land for infrastructure of that kind.

113 The contention also recites the objectives of the R2 Zone expressed in the Land Use Table in Pt 2 of Appendix 2 to the State Policy. The only objective of the Zone that is briefly addressed in the contention is the following:

"To support the well being of the community, including educational, recreational, community, religious and other activities and, where appropriate, neighbourhood shops if there will be no adverse effect on the amenity of proposed or existing nearby residential development."

114 The contention of the Council by reference to that objective is:

(i)  that the section of the local road passing through the Site will function as a private road under private care and control and thereby "will have an adverse effect on the amenity of proposed nearby residential development; and

(ii)  that road, functioning in the manner just described "and then converting to or becoming a public road under public control and ownership for the residue of the local road, will have an adverse impact on the amenity of proposed nearby residential development."

115 For my part, I do not see this contention as providing any sound basis upon which to refuse the Academy's application. Carrying out its school development in compliance with the conditions of the Consent, absent Condition 98, does not frustrate the relevant objective of the planning instrument. Provision is made for the very road network that planning for the area contemplates. Acquisition of the land upon which the road is provided in order to provide for the greater public good is wholly within the power of the Council to achieve.

116 Even if it be the case that the "amenity of nearby residential development" is affected because residents cannot use the Academy's land for access, securing compliance with the objective of the planning instrument cannot trump the statutory scheme circumscribing the power to require a land owner to dedicate land free of charge as a condition of development consent (cf Anambah per Tobias JA at [148] - [149]).

117 In its written outline of submissions, the Council also advanced a similar argument to the effect that the modification sought would result in development being undertaken in a manner that did not comply with the DCP. That contention, in large measure, has been addressed earlier in these reasons and is essentially resolved by the Council's concession, earlier identified, in relation to a finding of invalidity of Condition 98. To the extent that the contention is directed more generally to a claim of non-compliance with the objectives of the development controls expressed in the DCP, my determination of it is the same as that directed to claimed non-compliance with the objectives of the State Policy.

Conclusion

118 Condition 98 of the Consent was not validly imposed. Imposition of the Condition was not founded upon a need for road dedication having regard to the manner in which the Site was proposed to be developed conformably with all other conditions of the Consent. In this circumstance the provisions of s 94(1) of the EPA Act were not engaged.

119 Moreover, the condition requiring dedication of the new local street was not a condition of a kind allowed by and determined in accordance with a contributions plan made under s 94EA of the EPA Act. The Council's Contributions Plan was expressed to authorise the levying of contributions when a development application "for residential development was lodged" (and presumably determined by the grant of development consent): cl 2.5. No provision of the Contributions Plan authorised the imposition of a condition for the dedication of land when determining a development application for a school. Condition 98 was imposed in contravention of s 94B(1) of the EPA Act.

120 As Condition 98 was not validly imposed, there is no discretionary reason why it should not be deleted from the Consent. Application of the rule of law supports its deletion. Neither the heads of consideration under s 79C of the EPA Act, relevant to consideration of the Academy's application (cf s 96 (3)), principally s 79C(1)(a)(i) and (iii), nor the conduct of the Academy in obtaining and implementing the Consent, weigh against granting the application for modification.

Orders

121 For the reasons I have expressed, I propose to allow the appeal. Against the possibility that I determined so to do, the parties have agreed, in substance, as to the form of modification that should be made to the Consent. I adopt their agreed form.

122 I therefore make the following orders:

1.  Appeal allowed.

2.  Modify development consent 872/2011/JP granted on 10 November 2011 for construction of an educational establishment - Kindergarten to Year 12 - including associated parking, playing areas and landscaping for land being Lot 3 in DP 32271 and known as 57-69 Samantha Riley Drive, Kellyville in the following manner:

(i)  Condition 1 is amended by deleting reference to Drawing No DA101-Site Plan-Revision F-Dated 09/09/2011 and inserting reference to Drawing No DA101-Site Plan-Revision H-Dated 24/1/12.

(ii)  Insert after Condition 1 the following Condition:

1A. the references to "future emergency vehicle access" and "future pedestrian access" to the local road in plans DA114-Site Parking Plan-Rev B and Plan LA01-Rev C are to be deleted.

(iii)  Delete Conditions 37 and 55(iv).

(iv)  Delete Condition 98.

(v)  Substitute a new Condition 98 in the following terms:

98. The local road must be built in accordance with this development consent within 6 months from the date of the first occupation certificate issued in respect of the Site and before any further occupation certificate is issued. However, nothing in this consent requires the area of land occupied by that road to be dedicated free of cost.

(vi)  Add the following Condition:

107.  A barrier/No entry sign must be provided at the eastern end of the local road until such time as it is connected to the road that will service the development approved by the Land and Environment Court at 71-83 Samantha Riley Drive as required by Condition 32 in Annexure A to the Court's judgment in Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154.

3.  No order as to costs to the intent that each party should pay its own costs.

4.  Exhibits may be returned.

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Amendments

04 February 2013 - The second reference to "Council" deleted and "Academy" inserted: slip
Amended paragraphs: 86

Decision last updated: 04 February 2013