Land and Environment Court New South Wales

• Medium Neutral Citation: SJ Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2
• Hearing dates: 29 November 2012
• Decision date: 24 January 2014
• Jurisdiction: Class 1
• Before: Pepper J

Decision

Appeal upheld. See orders at [137].

• Catchwords: APPEAL: appeal against decision of Commissioner on an error of law - whether error of law or of fact - whether Commissioner failed to give adequate reasons for her decision - whether Commissioner misapplied existing case law.
• Legislation Cited: Environmental Planning and Assessment Act 1979, ss 94, 94B; Heritage Act 1977; Land and Environment Court Act 1979, s 56A; Environmental Planning and Assessment Regulation 2000, Div 1C; Byron Local Environmental Plan 1988
• Cases Cited: AMP Capital v Tim Shellshear & Associates Pty Ltd [2012] NSWLEC 165; (2012) 189 LGERA 304; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12; Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203; Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157; Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296; Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280; DAA Holdings Pty Ltd v Kiama Municipal Council [2011] NSWLEC 183; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26; Edyp v Brazbuild Pty Ltd [2011] NSWCA 218; Frevcourt Pty Limited v Wingecarribee Shire Council [2005] NSWCA 107; (2005) 139 LGERA 140; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186; Greenwood v Warringah Council [2013] NSWLEC 223; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; Keith v Gal [2013] NSWCA 339; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390; Meriton Apartments Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1336; Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17; (2011) 80 NSWLR 156; Mifsud v Campbell (1991) 21 NSWLR 725; Minister Administering The Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389; Newbury District Council v Secretary of State for the Environment [1981] AC 578; NSW Aboriginal Land Council v Minister Administering The Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253; Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127
• Category: Principal judgment
• Parties: SJ Connelly CPP Pty Ltd (Applicant); Byron Shire Council (Respondent)
• Representation: Mr P Tomasetti SC with Mr S Nash (Applicant); Mr A Galasso SC (Respondent); McCartney Young Lawyers (Applicant); Marsdens (Respondent)
• File Number(s): 10868 of 2012

Judgment

The Appellant Appealed Against the Imposition of a Condition Requiring Monetary Contributions in Granting Consent

1 The appellant to this appeal under s 56A of the Land and Environment Court Act 1979 ("the LEC Act"), S J Connelly CPP Pty Ltd ("Connelly"), initially appealed to the Court in Class 1 of the Court's jurisdiction against a decision of the respondent, Byron Shire Council ("the council"), to impose a condition (condition 26) allowing a contributions plan pursuant to s 94 of the Environmental Planning and Assessment Act 1979 ("the EPAA") (S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324).

2 Condition 26 imposed as a condition of a development consent granted by the council, a requirement to pay monetary contributions in the sum of approximately $2,397,109 in respect of a proposal for a three storey mixed use commercial development that included a backpackers hostel, granted by the council on May 2007 ("the 2007 consent").

3 The Commissioner upheld the appeal and amended the Schedule of contributions under condition 26 pursuant to s 94B(3) of the EPAA by disallowing some of the contributions. Connelly remains, however, dissatisfied with the outcome.

4 For the reasons that follow, I have found that because of the Commissioner's failure to give adequate reasons in respect of an item for which contribution was payable, the appeal must be upheld.

Factual Background Giving Rise to the Appeal Before the Commissioner

5 The factual background giving rise to the consent is uncontentious. On the corner of Lawson and Fletcher Streets, Byron Bay, there is a building situated on land which was, until 1996, owned and occupied by the council and used as the council's chambers and administrative centre. The building was erected in about 1929. The legal title for the property on which the building is situated is Lot 1 DP 876261, with a street address of 19-23 Lawson Street, Byron Bay ("the site").

6 The building has heritage significance. In December 2004, the council placed an interim heritage order on the building under the Heritage Act 1977. Its heritage significance was subsequently recognised by the Byron Local Environmental Plan 1988 ("the LEP"). Schedule 2 of the LEP lists all of the items of local environmental heritage significance in the Byron local government area. The LEP defines "items of the environmental heritage" as meaning, relevantly, buildings as identified in Schedule 2. The building was listed in Schedule 2 of the LEP on 25 November 2005.

7 Connelly purchased the land in 1996. In the same year, it also sought and was granted development consent by the council to operate a 90 bed hostel from the council building known as the "Main Beach Backpackers" ("the 1996 consent"). The 1996 consent authorised the use of three retail shops and a takeaway food shop from the building. As the Commissioner noted in her decision (at [2] and [3]):

2. In 1996 the applicant, S J Connelly CPP Pty Ltd, purchased the site and obtained a development consent DA 10.2005.733.1 (the 1996 consent) to operate a 90 x bed hostel called the "Main Beach Backpackers", with 3 retail shops and a takeaway food shop. In assessing the car parking demand that would be generated by this new use the Council accepted that the development generated a demand for 27 car parking spaces of which 23 spaces would be provided onsite. It required the applicant to pay a financial contribution of $45,882 for the provision by council of the 4 spaces it could not provide onsite. (Ex 2 Tab 1 p 4).

3. In December 2004, the Council placed an Interim Heritage Order on the council building under the Heritage Act 1977. On 25 November 2005 the building was listed as an "item of environmental heritage" under Sch 2 of the Bryon Local Environmental Plan 1988 (LEP).

8 Connelly lodged a development application with the council in 2004 ("the 2004 DA") seeking development consent for, amongst other things, the demolition of the council building. The 2004 DA was recommended for refusal for reasons that included that it sought to demolish a heritage item.

9 The 2004 DA was subsequently withdrawn following the lodging of a further development application with the council in 2005 ("the 2005 DA") that sought, amongst other things, development consent for the mixed use commercial development, including the backpackers hostel, to be conducted in the council building.

10 The council granted development consent to the 2005 DA on 24 May 2007, subject to conditions. Condition 26 provided that:

26. Developer Contributions to be paid

Contributions set out in the attached Schedule are to be paid to Council. Contributions are levied in accordance with [and the condition lists certain documents] ...

The contributions payable will be adjusted in accordance with [sic] relevant plan and the amount payable will be calculated on the basis of the contributions rates that are applicable at the time of payment ...

11 The Commissioner further helpfully summarised the background facts in her judgment as follows (at [4] and [6]-[10]):

4. ...the Council granted the applicant development consent to DA 10.2005.733.2 (the 2007 consent) for development described as a three storey mixed commercial development comprising:

(1) 316-bed backpacker hostel;

(2) 2 restaurants;

(3) 1 takeaway food shop;

(4) 5 retail shops;

(5) retention of 4 existing shops; and

(6) 55 onsite car parking spaces.

6. The Schedule to condition 26 is said to be based on the provisions of the Byron Shire Council Section 94 Development Contributions Plan 2005 (CP2005) and is as follows:

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Community and Cultural Facilities	(CF-BB)	86.90 SDU @ $967.17	=	$84,046.88
- Shire Wide	(CF-SW)	86.90 SDU @ $540.29	=	$46,950.77
Open Space	90S-BB)	86.90 SDU @ $6,033.78	=	$524,335.79
- Shire Wide	(OS-SW)	86.90 SDU @ $2,602.49	=	$226,156.81
Roads	(R-BB)	291.00 trips @ $765.92	=	$222,882.76
Car Parking	(CP-BB)	32.8 Spaces @ $54,594.84	=	$1,790,710.75
Cycleways	(CW-BB)	86.90 SDU @ 699.70	=	$60,804.20
Civic & Urban Improvements	(IM-BB)	91.87 SDU @ $1,547.50	=	$142,168.90
Surf lifesaving	(SL-BB)	86.90 SDU @ $25.16	=	$2,168.19
Administration	(OF-SW)	91.87 SDU @ $726.48	=	$66,741.90
		Total	=	$3,166,984.96

7. On 6 August 2010 the applicant made application to the Council under s 96 (1A) of the Environmental Planning and Assessment Act 1979, to modify the Schedule of contributions under condition 26 to an amount of $831,349.31 (folios 162 and 178 of Exhibit 2).

8. Before that application was determined the applicant filed this appeal on 30 September 2010.

9. On 11 October 2011 the council resolved to reduce the Schedule of contributions to a total amount of $2,397,108.93 (folios 354 - 355 Exhibit 2).

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979

Open Space	(OS-BB)	48.68	SDU @	$6,033.78	=	$293,724.58
" - Shire Wide	(OS-SW)	48.68	SDU @	$2,602.49	=	$126,689.46
Roads	(R-BB)	280.00	Trips @	$765.92	=	$214,457.64
Car Parking	(CP-BB)	29.40	Spaces @	$54,594.84	=	$1,605,088.29
Cycleways	(CW-BB)	48.68	SDU @	$699.70	=	$34,061.55
Civic & Urban Improvements	(IM-BB)	53.59	SDU @	$1,547.50	=	$82,930.57
Surf Lifesaving	(SL-BB)	48.68	SDU @	$25.16	=	$1,224.67
Administration	(OF-SW)	53.59	SDU @	$726.48	=	$38,932.17
				Total	=	$2,397,108.93

10. In reducing the contribution the Council accepted that there should be no contribution made by the development for the local or shire wide "Community and Cultural Facilities" identified in the CP2005. It also accepted that the contributions for "Open Space, Cycleways, Civic & Urban Improvements, Lifesaving and Administration" should be reduced to reflect an occupancy rate for tourist development of 56% identified in the exhibited draft Byron Shire Section 94 Contributions Plan 2010 (folio 348 of Exhibit 2 - para 6 of the Respondent's Written Submissions (RWS)). Other adjustments were made based on the floor areas of various components in the development.

Statutory Framework

12 Given that it was accepted by both parties that an appeal to the Court under s 56A of the LEC Act lies only against a decision or order made by a Commissioner on a question of law (Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [27]), it is unnecessary to set out the terms of that provision.

13 Section 94 of the EPAA, however, relevantly provides:

94 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.

(5) The consent authority may accept:

(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or

(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).

(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:

(a) a benefit provided as a condition of the grant of development consent under this Act, or

(b) a benefit excluded from consideration under section 93F (6).

14 In addition, s 94B provides:

94B Section 94 or 94A conditions subject to contributions plan

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

(2) However, in the case of a consent authority other than a council:

(a) the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

(3) A condition under section 94 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.

(4) A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.

15 Division 1C of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") is concerned with the "Preparation of contribution plans". In particular, cl 27(1) relevantly details the particulars that a contribution plan must contain and includes the following:

27 What particulars must a contributions plan contain?

(1) A contributions plan must include particulars of the following:

(a) the purpose of the plan,

(b) the land to which the plan applies,

(c) the relationship between the expected types of development in the area to which the plan applies and the demand for additional public amenities and services to meet that development...

The Proceedings Before and the Decision of the Commissioner

16 Before the Commissioner the council submitted that it would not be unreasonable for the Court to amend the contributions payable pursuant to the 2007 consent to provide for a contribution comprising the following (at [11]):

· Parking - $619,948.48

· Roads - $246,825.67

· Open Space - $200.419.00

· Cycleways - $46,066.00

· Civic and Urban Improvements $46,166.00

· Surf Life saving - $1187.21

· Administration - $36,866.83

· Total $1,200,479.19

17 However, the concession did not resolve the appeal because Connelly's position was that it should not be required to pay any contributions on the basis that to impose any obligation upon it to pay a monetary contribution based upon the Byron Shire Council Section 94 Development Contributions Plan 2005 ("CP 2005") was unreasonable.

Grounds of Appeal

18 It is fair to say that the amended summons listing the grounds of appeal relied upon by Connelly was not drafted with a felicity designed to illuminate the errors on questions of law claimed to have been made by the Commissioner. This was regrettable because, as has been recognised by the courts, the first task in an appeal under s 56A of the LEC Act is to identify the decision, express or implied, on a question of law. In the absence of such a decision, the Court has no jurisdiction to review the decision made by the Commissioner (Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [33] and [35] and Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253 at [3]). Moreover, read literally, most of the grounds of appeal appeared to impermissibly challenge findings of fact made by the Commissioner. A point not lost on the council in its submissions.

19 The statutory formulation of a right of appeal predicated upon the existence of a question of law has been the subject of consideration by this Court and the Court of Appeal. In B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 Allsop P noted (at [70]):

70 As to the Land and Environment Court Act, I have already referred to Maurici. It is to be noted, as Basten JA did in Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139], that the language of the Land and Environment Court Act, s 57(1) is like that of the Government and Related Employees Appeal Tribunal Act 1980, s 54, such that it was the underlying decision from whose decision the appeal lies, and not the appeal itself, which must be "on a question of law": see Metropolitan Water, Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 725 (Samuels JA).

20 In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 Basten JA stated (at [20], with whom Beazley and Young JJA agreed):

20 As has been explained in a number of recent decisions, jurisdiction of the kind presently in question falls into one of three categories, namely an appeal where:

(a) identification of a question of law is a precondition to engaging the Court's jurisdiction, but is not a limitation on that jurisdiction, once engaged;

(b) the question of law is not a mere precondition to ground an appeal but is the sole subject matter of the appeal, and

(c) it is the decision of the Tribunal on a question of law which is the subject matter of the appeal.

21 The question of law to be identified enlivening the appeal need not constitute the ultimate decision of the Commissioner so long as it is material to the decision (B & L at [125] and Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 at [78]).

22 As to the level of scrutiny that should be afforded to the language of a commissioner on a s 56A appeal, Kirby P in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368 said:

...I believe that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless the words are central to the decision involved ...

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament.

23 Such an approach has been endorsed in subsequent cases (Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [68] and Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [6]-[7]). In DAA Holdings Pty Ltd v Kiama Municipal Council [2011] NSWLEC 183 Biscoe J said (at [3]):

3 Consideration of the judgment of a commissioner who is not a lawyer (as in the present case) exercising a merits review jurisdiction should not be examined as if it were written by a lawyer: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79GERA 367 at 368 (NSWCA). Consideration of such a judgment should not be pernickety nor should the judgment be examined with a fine tooth comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [153]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138 (which has often been cited in decisions of this Court)...

24 By this comment I do not, however, understand his Honour to be prescribing a different or lesser standard of scrutiny applying to commissioners of this Court who are not legally qualified but who nevertheless exercise the same powers and engage in the same merits based functions as those who are.

25 Prior to dealing with the specific grounds of appeal, it is necessary to address a submission made by the council from the outset that informs all seven grounds of appeal, namely, that properly analysed none concerned an error on a question of law.

26 This was because, the council submitted, the essence of the appeal before the Commissioner related to a claim pursuant to s 94B(3) of the EPAA that a condition imposed under s 94 (that was of a kind allowed by a contributions plan) should be disallowed or amended by the Court on appeal on the basis that it was "unreasonable in the particular circumstances of that case". The inquiry as to whether or not condition 26 was unreasonable having regard to the particular circumstances of the case was inherently factual in nature, which was borne out by the competing evidence put forward by both parties in respect of each element of the contributions condition. Thus at the heart of each element of the contribution payable challenged by Connelly and, by way corollary, underlying each ground of appeal, was a factual determination made by the Commissioner that could not form the basis of an appeal under s 56A of the LEC Act.

27 But a finding of fact premised on a misconstruction or misapplication of a question of law, for example, an incorrect interpretation of a statutory provision or an incorrect application of an earlier decision, is appealable under s 56A and can sound in relief (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 at 287). To the extent that this involves a mixed question of law and fact, it has been established that a question of law extends to such questions (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 10; NSW Aboriginal Land Council v Minister Administering The Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 at [8] and Minister Administering The Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 at [62] and Brinara at [32]-[35]).

28 Moreover, the notion that a legal error may occur in the process of determining facts is well established (for example, an error of fact resulting in a denial of procedural fairness) and such errors can fall within the purview of s 56A (Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 at [23], [69] and [78] and see M J Beazley AO, "The distinction between questions of fact and law: a distinction without an answer?" (2013) 11(3) The Judicial Review 279 at [53]-[66], especially at [55]). It is therefore now settled in this Court at least, that a failure to accord procedural fairness involves a question of law for the purpose of s 56A of the LEC Act (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 at [99]-[100] and the cases referred to thereat and Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 at [30]-[35]).

29 The council's submission is not, therefore, a complete answer to the appeal and it will nevertheless be necessary to examine in detail each ground of appeal (Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17; (2011) 80 NSWLR 156 at [44]-[45]).

Ground 1: the Material Public Benefit Ground

30 Ground 1 of Connelly's grounds of appeal was expressed as follows:

1 The Commissioner's finding at [47] when read with [48]- [49] is an error of law. The circumstance that the Council sold the land and improvements to the applicant and then caused the building to be listed as a heritage item under the Byron LEP 1988 was a fact, matter and circumstance that was legally open for the Commissioner to have regard to in determining whether the applicant had provided a material public benefit in part or full satisfaction of a condition imposed in accordance with s94(1) of the Act.

31 Connelly argued before the Commissioner that, relying on s 94(6) of the EPAA, because the 2005 DA did not propose to seek consent to demolish the council building but sought to retain, restore and use it, this constituted a material public benefit that had to be taken into consideration in the imposition of any monetary contribution. Or put another way, the retention of the heritage item was a material public benefit dedicated or provided free of cost warranting a discount in the quantum of any contribution payable.

32 The council, by contrast, submitted that because Connelly had not in fact dedicated or provided any part of the building on the land to it, insofar as the building remained because of planning controls that require it to be retained by reason of its heritage listing, it could not avail itself of s 94(6) of the EPAA.

33 The Commissioner accepted the submissions of the council. In doing so she said (at [45]-[49], emphasis added):

[45] In this case the building is not vested in or placed in the control of the council. And, the Council submits even if it was not necessary for the material public benefit to be dedicated or provided to council it submits that there has been no "material public benefit" dedicated or provided by the applicant/owner of the land. The building remains because of the planning controls that require it to be retained not because of anything done or provided by the applicant/owner of the land. It is listed as a heritage item under the LEP1998. The building has always been able to be viewed from the public domain and the applicant provides nothing more.

[46] The Council contends that it is not legally open to the Court to take into consideration the heritage item that remains on the land as a "material public benefit" under s 94(6).

[47] I accept council's submissions on this issue. The development does no more than comply with the provisions of clauses 19 and 20 of the LEP 1998. The heritage item is a development constraint on the site but that does not equate with it being a "material public benefit" for the purposes of s94 (6). As Mr Romney, the applicant's heritage expert states at 5.0 at p6 of Exhibit E the development incorporates "...adaptive reuse of the retained 1929 Byron Shire Council Chambers building for front of house hostel reception and lounge functions." The applicant in this case retains the private use of the heritage item and does not offer it up for a public use such as a "community centre" controlled by the council or someone other than the applicant.

[48] A material public under s 94 (6) to my mind must be a public benefit of an enduring nature and not one susceptible to being withdrawn or changed by the applicant or a successor in title. An enduring public benefit is assured by vesting the item in the control of the council or some other entity independent of the owner of the land. Whether s 94 (6) requires that it only be vested in the council does not need to be determined on the facts of this case.

[49] Therefore, I do not believe that I have the power under s 94 (6) to give any credit or discount as sought by the applicant in respect of any material public benefit argument on the facts of this case.

34 The error said to have been made by the Commissioner was making the finding that she did not have the "power" under s 94(6) to give any credit or discount to Connelly for any material public benefit "on the facts of this case" (at [49]). Connelly argued that the Commissioner "mistook and therefore ignored the mandated statutory enquiry" which was whether any aspect of the proposed development constituted "any... other material public benefit". Expressed this way, the ground appears to raise a mixed error of law and fact sufficient for the purposes of s 56A.

35 The council submitted that the ground of appeal was misconceived because the complaint by Connelly that it was providing a material public benefit in respect of which an adjustment needed to be made for the purposes of imposing condition 26 was a question directed to s 94(6) of the EPAA and not s 94B(3), the latter of which was the basis of the appeal before the Commissioner.

36 Although this characterisation of the appeal is strictly correct, to the extent that any determination of the unreasonableness of condition 26 for the purpose of determining if it should be disallowed or amended pursuant to s 94B(3) of the EPAA necessitated the Commissioner taking into account whether Connelly had provided a material public benefit, consideration of s 94(6) of that Act was required.

37 In my view, notwithstanding the language of "power" used by the Commissioner at [49] of her judgment, a fair reading of her judgment discloses that the enquiry that she was bound to undertake as to whether the retention of the council building as a heritage item constituted "any...other material public benefit" is that which she in fact carried out.

38 The Commissioner considered the heritage item in the context of the development, had regard to the evidence of Connelly's heritage expert, Mr Peter Romney, and found that its retention was not a material public benefit for the purposes of s 94(6). This was because, first, as she found, by not vesting or placing the council building in the control of the council, Connelly retained the private use of the heritage item and hence there was no "public benefit of an enduring nature" (at [45] and [47]-[48]). And second, the council buildings were kept because of the planning controls requiring it to be retained and not because of anything done by Connelly (at [45] and [47]).

39 The "power" referred to in her judgment (at [49]) was the logical corollary of her factual finding that the retention of the heritage listed council building did not amount to a material public benefit for the purpose of s 94(6) and that, therefore, she could not give any discount on this basis as sought by Connelly to the contribution imposed by condition 26. It is in this context that the Commissioner's use of the concept of "power" must be understood. That is to say, the Commissioner was not satisfied as a matter of fact that the retention of the heritage listed council building was "provided free of cost" or "previously paid" "to the consent authority", and thus the prescription in s 94(6) was not engaged. In my view, no error is disclosed by this reasoning.

40 Even accepting for the purposes of the present argument that, as was submitted by Connelly, the Commissioner was required to enquire as to whether "any" material public benefit would be provided free of cost within the area and to reflect that benefit when calculating the quantum of contributions payable under s 94 of the EPAA, this is, in my opinion, precisely what the Commissioner did. It is evident in her finding that for the two reasons discussed above no material public benefit was provided by Connelly. In so concluding, it may be readily inferred that the Commissioner had regard to the evidence of Connelly of the work it would undertake to preserve and enhance the building and found that it was insufficient to constitute the provision of a material public benefit.

41 It follows, therefore, that the first ground of appeal must be dismissed.

Grounds 2 and 3: the Peak Workforce Grounds

42 Although the council contended that these grounds involved no more than errors of fact that could not properly be the subject of appeal under s 56A of the LEC Act (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 and AMP Capital v Tim Shellshear & Associates Pty Ltd [2012] NSWLEC 165; (2012) 189 LGERA 304 at [7] and the authorities cited thereat), as stated above, if the finding of fact was premised upon an error on a question of law, this is enough for the purpose of the provision.

The Decision in Meriton

43 Given the centrality of the judgment in Meriton not only to the second and third grounds of appeal, but also grounds 6 and 7, it is necessary to analyse the decision in some detail.

44 Meriton concerned a challenge to the imposition of a condition to a development consent granted to Meriton Apartments Pty Ltd ("the company") in 2008, which required the company to pay over $5,000,000 in monetary contributions towards the cost of providing identified public amenities and services. The quantum was calculated pursuant to the City of Sydney Section 94 Contributions Plan 2006 ("the Contributions Plan"). The company consequently applied to the relevant council to modify the condition by reducing the amount of contributions payable by almost $500,000. This was refused and the company brought Class 1 proceedings in the Court. The appeal was heard by Moore SC, who allowed the appeal in part insofar as he discounted the company's claim for a reduction in its payable contribution. An appeal against the decision to a judge of the Court was dismissed. The company subsequently appealed to the Court of Appeal.

45 It was accepted before the Court of Appeal that the Contributions Plan was only intended to require a s 94 contribution in relation to the demand for public amenities and services generated by the net increase in the population of a particular site.

46 Paragraph 2.15 of the Contributions Plan dealt with what constitutes an existing level of demand, for which credit was to be given, for the purpose of calculating development contributions. The Contributions Plan provided that credit for the population of past development would be determined to exist for the purpose of granting credit only for the population that had vacated the site of redevelopment as a result of changing economic trends since the most recent census on which the Contributions Plan was based, in that case the 2001 Census (at [14]):

14. Thus, par 2.15 of the Contributions Plan which was headed "Policy for Existing Development" stated:

"These provisions describe the approach for determining the [net] increase in demand for the purposes of levying only the [net] additional population. There has been considerable debate in recent years as to what constitutes an existing level of demand (which is entitled to due credit) for the purpose of calculating development contributions."

47 The operation of the limitation was explained in the Contributions Plan as follows (at [15]):

15 The paragraph then dealt with the situation, relevant to the present case, where a particular development site was vacant at the time that development consent was granted but had been populated historically. Thus, the Contributions Plan provided that credit for the population of past development would be determined to exist for the purpose of granting a credit only, relevantly,

"[f]or the population that has vacated the site for the purposes of redevelopment and/or as a result of changing the economic trends since the most recent census on which the Contributions Plan is based. For the purposes of this plan, that means the 2001 Census."

48 Clause 4.16 of the Contributions Plan was concerned with "Workforce Occupancy Rates" and provided that actual worker numbers, both historic and proposed, were to be used for calculating the net contribution applicable to any development proposal.

49 The site formed part of a much larger area and had a variety of industrial uses since the 19th century. From the late 1950s the site was used for the manufacture of automobiles. The Senior Commissioner accepted that the automotive manufacturing workforce on the larger site peaked at around 7,000 workers in 1964 (at [21]). In 1975 the Commonwealth acquired the site for use as a naval stores depot. In 1996 it was acquired by the State's property developer, LandCom, and subsequently transferred to the Roads and Traffic Authority. Then in 2002 the State disposed of it by private sale to a developer, who in turn sold it to the company. As at 2002 it had been vacant for a number of years, including as at the date of the 2001 Census (at [22]-[23]).

50 The Court of Appeal summarised the decision and reasons of the Senior Commissioner as follows (at [24]-[27]):

24 The Senior Commissioner (at [16]) accepted that the Contributions Plan made provision for the circumstances under which a credit might be granted for past occupation of the Site, whether for residential or industrial purposes, when assessing the monetary contributions to be levied on a new development. This credit was designed to reflect the extent to which the past population would have created a demand for public amenities and further services. It ensured that the contributions levied on new development merely compensated the Council for the cost of meeting the increased demand for public amenities and services generated by the anticipated population of the new development.

25 The Senior Commissioner (at [19]) stated that there were two issues before him. The first was whether a credit should be granted for past industrial commercial occupation of the Site in light of the provision in the Contributions Plan (to which I referred at par [15] above) which provided that if the Site had no population counted as part of the 2001 Census, then no part of any former population could be taken into account for the purpose of securing a credit under the Plan.

26 The second issue was the extent to which a credit should be granted as a matter of discretion if he was otherwise satisfied that there was some appropriate basis upon which to grant at least some credit. The Senior Commissioner acknowledged (at [21]) that it was common ground between the parties that he was not obliged to follow the precise terms of the Contributions Plan: Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; (2003) 58 NSWLR 159 at [35].

27 As to the first issue, the Senior Commissioner determined that it was not appropriate given the history of the Site to adopt the cut-off date for being populated as being that at 2001 as reflected in the 2001 Census. Furthermore, he determined (at [56]) that it was appropriate to have regard to what might have been the workforce demands for public amenities and services in 1964 at the peak of the manufacturing workforce on the Site. He stated (at [57]) that the assumed workforce for the Site based on a peak manufacturing workforce for the larger area in 1964 was 7,000 workers, should be determined by a simple arithmetic approach based on the area of the Site as a proportion of the area of the larger site. On this basis he adopted a workforce calculation of 229 workers.

51 The company took issue only with the Senior Commissioner's determination of the second issue and it was this issue that formed the basis of the appeal before the trial judge and on appeal (at [29]):

29 It is the second issue determined by the Senior Commissioner that gives rise to the present appeal. The Senior Commissioner (at [60]) observed that the mathematical calculation referred to was not a complete answer in all the circumstances to the determination of the appropriate credit. The Senior Commissioner maintained, correctly, that he had a discretion that enabled him to take account of other relevant matters in considering whether the prima facie credit amount should be adopted or discounted.

52 It was alleged by the company that Moore SC erred by taking into account a legally irrelevant matter when he discounted the credit calculated on the number of workers at the site on the basis of whether rates had been paid for the land in the past (at [51]):

51 Importantly, there was nothing in the Contributions Plan which expressly or impliedly suggested that the credit provisions in respect of past populations, and the amount of the credit to be determined as a consequence, was in any way dependent upon or related to whether a prior owner had paid rates. Such a factor was simply extraneous to the credit exercise to which the Contributions Plan referred. If this be so, then it was appropriate to infer that the scope and purpose of the relevant statutory provisions in the present case should be construed so as to exclude such an extraneous consideration which had no relationship or nexus to the demand for public amenities and services generated by the past population of the relevant land.

53 The Court of Appeal accepted the company's contentions. It concluded that, properly construed, ss 94 and 94B did not provide any basis for linking the rateability of the relevant land to the net demand for public amenities and public services generated by the development (at [56]). So much so was recognised in the Contribution Plan. Neither that Plan nor any Practice Notes issued by the relevant department suggested that the rateability of the land was a factor that could or should be taken into account in determining workforce occupancy rates or the credit or allowance which a council was required to make for existing development when determining the net demand generated by new development for public service or amenities (at [57]). While a developer was entitled to a credit for the demand created by the existing population, however determined, the demand was not dependent upon whether the landowner in question, who created the demand, paid rates or not (at [58]).

54 The Court of Appeal went on to state the "simple point" as being (at [59], emphasis added):

59 ... that the relevant provisions of the statute are concerned with the net demand for public amenities and services generated by the development in question. Although the relevant exercise requires a determination of the existing demand for such services in order to reach the net demand, the former is based purely on the actual or deemed resident or workforce population of the relevant land at the time of the development application for it is only the future population that generates the demand in respect of which a monetary contribution can be required. That determination cannot be dependant upon whether the demand of the historical population was ever met by the council or, if it was, out of what source of revenue.

55 The Court of Appeal noted the inherent difficulties of requiring historical inquiries to be made, "often lost in the mists of time", which in any event would not assist the enquirer in determining the issue posed by s 94(1), namely, identifying the net demand for public amenities and services generated by the development in question based on the existing demand for such services, having regard to the actual or deemed resident workforce population at the time of the development application (at [60]).

56 The Court concluded by stating that ss 94 and 94B neither expressly nor impliedly related to the manner in which the council provided public amenities and services to meet the needs of past populations. Rather, the provisions were concerned with ensuring that the present developer was not required to meet needs that were not generated by the development in respect of which consent was sought (at [61]).

57 Because there was "no contest with respect to" (at [65]) the finding by the Senior Commissioner that the relevant historical workforce was not nil as contended for by the council, but was 229 based on a peak manufacturing workforce of 7,000 workers in 1964, or any other aspect of his reasoning, the Court of Appeal did not remit the matter for reconsideration and determined for itself the credit to be allocated to the company for past workforce contributions.

58 Returning to the present appeal, Connelly argued before the Commissioner that a credit arose from the consideration of "peak workforce" or occupancy by the council using the land as administration offices. In particular, it submitted that the council did not correctly assess, and thus apply, the net parking increase generated by the earlier 1996 development consent when compared to the council use, as required by the decision in Meriton.

59 Turning to the second ground of appeal, Connelly submitted that the Commissioner answered a question of law incorrectly, namely, whether for the purposes of s 94(1) the net demand for public amenities and services generated by Connelly's proposed development did not necessitate consideration of the council's previous use of the council buildings for its Chambers and Administration Centre. Connelly contended that this was because of a misapplication of the decision in Meriton.

60 Connelly submitted that Meriton is authority for the proposition that a condition imposing a contribution pursuant to s 94 can only be made on a net basis having established historically what the "net" situation with respect to the provision of, or increase in, the demand for public amenities and public services is or might have been. In its application to the appeal before the Commissioner, Connelly argued that the Court was required to take into account the workforce population of the land at the time that the use of the land for the purpose of council chambers had ceased in order to determine the net demand for public amenities and services generated by the 2007 development approved by the consent.

61 The Commissioner rejected the submission in the following terms (at [53]-[54]):

53 I do not accept the applicant's submission that Meriton is authority for the proposition that the Council or the Court in an appeal is required, in respect of imposing a monetary contribution under s 94 of the Act, to determine or give a credit for the peak workforce that may have occupied the site a point of time. I agree with the Council's submissions that the Court of Appeal in Meriton merely accepted that the Senior Commissioner determined that a credit should be granted for past industrial use on the facts of that case and that it was not appropriate to adopt in that case the cut off date for being populated as being that reflected in the 2001 census. I accept as the Council submits that the Court of Appeal did not deal with the question of how far back, if at all a Court should go in relation to determining the maximum population of a site.

54 I do not accept that there is any general principle that requires the Council or the Court in determining a monetary contribution to give a credit for the peak contribution or workforce that occupied a site at some date in the past.

62 Having regard to the ratio decidendi in Meriton (at [56]), there can be no criticism of the Commissioner's conclusion in this regard. The case stands as authority for no more than the irrelevancy of the rateability approach adopted by Moore SC as a matter of construction of ss 94 and 94B of the EPAA (at [55] and [62]).

63 The Court of Appeal in Meriton did not deal with the question of how far back in time, if at all, a council or the Court should travel in order to determine the peak workforce that may have occupied the site the subject of the development application. The Court merely accepted that the Senior Commissioner determined that a credit should be given for the past industrial occupation of the site and that it was his opinion that it was not appropriate to adopt the population as at the 2001 census date.

64 In Meriton Apartments Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1336, Moore SC said this in relation to the retrospectivity required to calculate peak workforce (at [54] - [56]):

54 Consideration of the appropriate extent of any retrospectivity, in my view, is obviously only a question of fact and degree. Brown C considered that 15 years was a reasonable period of retrospectivity as earlier noted. I also note, parenthetically, that he did not express any view as to whether or not that would act as a limit as he was neither asked to do so or compelled to do so by the facts in those proceedings. I certainly do not consider that 15 years is some arbitrary limit that I need observe.

55 However, the broad concept of retrospective consideration has been adopted by Brown C, I consider that I should, consistent with Segal v Waverley and the way this matter has been argued, consider what would be an appropriate cut-off date in light of the history of occupation of this site. It is possible that, in some future proceedings, it may be necessary to consider whether some absolute cut-off should be imposed. How far back, if at all, will need to be determined on the facts and circumstances of any particular site.

56 I do not propose to consider any potential absolute time limit in these proceedings as I am satisfied that the period of time involved here, in the history of modern industrialised Australia, should not be disregarded. In this instance, I am satisfied that the ramping-up of Australia's secondary industry - the major industrialisation which took place on the site - in the context of the post-Second World War emphasis on the continuing transformation of the Australian economy from an economy significantly dependent on primary produce to having an independent manufacturing base (a context where the establishment industries such as that of the British Motor Corporation was encouraged by national government secondary industry policy) is a significant matter that is relevant to be considered. In this context, with respect to this site, I do not consider it unreasonable to go back further than Brown C was asked to go for the sites he considered. I have determined that it is appropriate to have regard to what might have been the workforce demands for public services and facilities in 1964 at the peak of the manufacturing workforce on the site.

65 There is, therefore, no general principle contained in either decision that mandated the council or the Court to give credit for the peak population or workforce that occupied a site at some previous point in time in determining a monetary contribution. This is, as the Senior Commissioner correctly stated, in my view, a matter to be determined "on the facts and circumstances of any particular site" (at [55]).

66 If anything, the decision of the Court of Appeal in Meriton suggests that the historical factual enquiry demanded by s 94(1) is no more than an examination of the actual or deemed workforce "at the time of the development application"(at [59]). This is because "it is only the future population that generates the demand in respect of which a monetary contribution can be required" (at [59]). It is at least arguable, therefore, that it is only necessary to look to the actual population of the relevant land at the time of the development application if the land is being used for a particular purpose at that time, and if the land is not being used for any purpose, then it is necessary to look at the future deemed population. In short, there should be no determination of the historical workforce of the land the subject of any development application.

67 Applying the reasoning in Meriton this is exactly what the Commissioner did. As she said (at [56] and [57]):

[56] As a matter of law I do not need to go back to the council use of the site. Having regard to the facts and evidence before me I think it is appropriate to consider the present use of the site pursuant to the 1996 consent for the purpose of determining the population of the relevant land and the existing demand for public amenities and services in order to assess any net increase from the 2007 consent.

[57] I accept as the council submits that in determining the net demand, on the evidence before me, a credit for the demand generated by the existing 90-bed hostel and 4 shops would be allowed. To go back further in this case would be unreasonable.

68 This is consistent with her earlier reasoning wherein, mindful of the reductions in and removal of the contributions imposed on Connelly by the council, she considered whether the reductions to the contributions resulted in "a reasonable s 94 condition...or whether condition 26 should be amended in the terms sought by" Connelly (or at all) and noted that (at [39]):

[39] In making that decision I am not required to apply the provisions of CP 2005 or impose a condition that is in accordance with CP2005 if I am of the opinion to do so is unreasonable. However, my discretion under s 94B of the EPA &Act is not unfettered. I must adhere to the subject matter, scope and purpose of the imposition of the condition requiring the payment of a monetary contribution under s 94 (1) of the EPA &Act. That means that I must have regard to the "net demand for public amenities and services generated by the development in question: per Tobias Meriton at [56] and [58].

69 On any reading of the Commissioner's judgment it was entirely consistent with the decision in Meriton. That case did not, as a matter of law or fact, require the Commissioner to go back further than the use of the site as at the 1996 consent for determining the population of the relevant land and the existing demand for public amenities and services. Nor did it necessitate a determination of whether it would be reasonable in the circumstances of this case (which, it may be inferred, the Commissioner found that it was not) irrespective of, for example, evidence before her as to a shortfall of at least 21 parking spaces when the council used the building, or evidence purporting to demonstrate that Connelly's proposed use of the building generated a lower net demand for car parking when compared to the council's use of the property.

70 In addition, Connelly complained that the Commissioner did not make any findings, as she was required to do applying Meriton, as to the "net increase" in the demand for public amenities and services generated by Connelly's proposed development "for the purposes of s 94(1)" of the EPAA. I do not accept this submission.

71 First, s 94(1) does not speak of "net increase". Second, although there are references to the concept of a "net increase" in Meriton (critically at [59]), the context in which those references were made, namely, the Contributions Plan governing that appeal, has been ignored by Connelly. In the present case, CP 2005 deals with net allowances for existing development in section 3.13 which states as follows:

3.13 Allowances for Existing Development

Contributions will be levied according to the estimated increase in residents, tourists or workers. An amount equivalent to the contribution attributable to any existing (or approved) development on the site of a proposed new development will be allowed for in the calculation of contributions. In assessing the contribution of existing development the following occupancy rates will be used:

 Dwelling houses and single vacant allotments - 2.6 persons per dwelling or lot.

 Medium density and residential flat development - 1 bedroom dwellings - 1.4 persons per dwelling; 2 bedroom dwellings - 1.7 persons per dwelling; 3 bedroom dwellings - 2.6 persons per dwelling

 Tourist development - 1 person per bed

 Seniors Living SEPP 5 dwellings - 1 person per 1 bedroom dwelling; 1.5 persons per 2 bedroom dwelling, 2 persons per 3 bedroom dwelling.

 Commercial/office space - one employee per 20 square metres of gross floor area.

 Industrial space - one employee per 80 square metres of gross floor space.

72 This may be contrasted with the terms of the Contributions Plan at issue in Meriton. In Meriton Tobias JA set out the relevant terms of the Contributions Plan (at [14]-[16]) and inserted the term "net" because that was what the Plan required for the purpose of calculating development contributions.

73 Third, and in any event, the Commissioner did not fail, as Connelly submitted, to identify a net increase. Rather, after having identified Connelly's arguments (at [20], [24], [25] and [50]-[53]) she eschewed the contention that it was necessary for her to go back to the council use of the site and instead assessed "any net increase from the 2007 consent" by considering the present use of the site pursuant to the 1996 consent (at [56]). This resulted in, "on the evidence before [her]", a credit for the demand generated by the 90 bed hostel and the four shops. Anything further would, in the circumstances of the case, have been in her assessment "unreasonable" (at [57]).

74 In reaching this conclusion, I am cognisant of the words at [59] of Meriton that speak of the "actual or deemed resident or workforce population" of the relevant land for the purposes of determining the net demand for public amenities. Connelly submitted that the reference to the term "deemed" in Meriton could only be a reference to the imputed resident or workforce population for the purposes of determining net demand where the actual resident or workforce population at the time of the development application was less than the historic peak workforce or population. I do not agree. In my view, not only would this represent an unwarranted gloss on the words of Tobias JA it ignores the term "actual" and the words "at the time of the development application" in that paragraph.

75 In the context of the present appeal, there was an actual workforce population at the time of the development application to which the Commissioner was entitled to have regard to. By contrast, in Meriton it was necessary to have regard to the deemed resident or workforce population because the land was vacant at the relevant time.

76 The Commissioner, therefore, has neither misapplied Meriton nor has she asked the wrong question or failed to identify any net increase in demand as claimed. While Connelly may disagree with the factual conclusion reached by the Commissioner (at [57]), this is not an error affording it relief in this appeal. No error in the Commissioner's reasoning in this regard having been demonstrated in the second ground of appeal should be rejected.

77 With respect to the third ground of appeal, Connelly argued that the Commissioner's findings at [50]-[57] were inadequately reasoned hence disclosing an error on a question of law.

The Duty of a Commissioner to Give Reasons

78 A duty to give reasons has been described as "a necessary incident of the judicial process" (Keith v Gal [2013] NSWCA 339 at [109]), the necessity for which has been emphasised by the High Court (Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [54]-[58] and [92]). Failure to comply with this duty denies "both the fact and the appearance of justice having been done" and will result in a miscarriage of justice (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 quoted in Gal at [109] and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA).

79 A recent summary of the applicable general legal principles in relation to the duty to give reasons was compiled by Biscoe J in Greenwood v Warringah Council [2013] NSWLEC 223. It is respectfully endorsed and adopted (at [23]):

23 The legal principles in relation to the duty to give reasons may be stated along the lines submitted by the appellant, as follows:

(a) a judge or commissioner has an obligation to provide reasons for the judgment: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 386.

(b) The extent and content of reasons depends upon the particular case under consideration and the matters in issue: Keith v Gal [2013] NSWCA 339 at [110]. Reference should be made to important or critical evidence: at [117] - [119].

(c) In Segal & Anor v Waverley Council [2005] NSWCA 310, (2005) 64 NSWLR 177 at [43] - [44] the Court of Appeal said in the context of a Land and Environment Court appeal, that it was not sufficient for a Commissioner to only set out the subjective thought process in coming to a decision, but that the Commissioner is bound to address the principal contested issues joined between the parties.

(d) Commissioners have no less onerous a duty to give reasons than judges: Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA157at [11].

(e) A failure to provide reasons or inadequate reasons has generally been assumed to be an error of law: Beale at 444 per Meagher J A.

(f) As stated in Beale, there are three fundamental elements of an adequate statement of reasons:

(i) A judge should refer to the relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

(ii) A judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Where one set of evidence is accepted over a conflicting set of significant evidence, the judge should set out his findings as to how he comes to accept the one over the other.

(iii) A judge should provide reasons for making the relevant findings of facts and conclusions and reasons in applying the law to the facts found.

80 Arguably there exists a tension between, on the one hand, the Court of Appeal's statement in Brimbella that consideration of the judgment of a commissioner who is not a lawyer exercising a merits review jurisdiction should not be examined as if it were written by a lawyer and, on the other, the more recent pronouncement by that Court in Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 (at [11]) that commissioners have no less onerous a duty to give reasons than judges. It is not incumbent upon me in this appeal to resolve this apparent conflict, but I note it in passing.

81 More generally, with respect to the extent to which reasons should deal with evidence, sometimes "the need for coherent and tolerably workable reasons sometimes require truncation of reference and expression" (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]). The test is one of relative adequacy (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66] per McColl JA and Gal at [113] per Gleeson JA).

82 Although a failure to refer to only some of the evidence does not indicate that the judge or commissioner has failed to discharge his or her duty, for a judge or commissioner to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge or commissioner may result in breach of the duty (Mifsud at 728).

83 Furthermore, a judge or commissioner must refer to evidence that is critical or important to the proper determination of the matter. This does not mean that the evidence must be referred to in turgid and lengthy detail (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280), especially where it is clear that the evidence has been considered. Nor does the duty call for all conflicts of fact to be resolved or an explicit description of every step in the chain of reasoning (Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41]). However, if critical evidence is not adverted to, an appellate court may infer that the judge at first instance or the commissioner, has overlooked the evidence or failed to consider it (Beale at 443).

84 Finally, bald statements simply preferring one piece of evidence over another should be avoided. The reasoning process on a critical evidential contest between the parties must be exposed. As Ipp JA stated in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]):

28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates. I hasten to add that this is not what the trial judge did in this case. Her Honour gave detailed reasons as to why she preferred Mr Arsic's testimony.

85 These remarks were further reinforced by the observations of McColl JA in Pollard (at [66]):

66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] - [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).

86 These principles are particularly apposite in the case of contests between expert witnesses. In Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Ipp JA stated the content of the duty in this regard as follows (at [61]):

61 But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.

87 In summary (Mitchell per Campbell JA at [116] quoted in Gal at [112]):

116 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58].

88 In SHCAG Pain J recently upheld an appeal in respect of a decision by two Commissioners who refused a major project approval for the continued operation of the Berrima colliery. Her Honour held that the Commissioners had failed to identify in their judgment the basis in the evidence for their conclusion that the development would cause significant environmental harm by reason of the dewatering of the Hawkesbury sandstone groundwater aquifer; had failed to expressly state why they preferred one expert's evidence over another; and had failed to analyse the extent of any disagreement in terms of the issues framed by the parties (at [90]-[96]).

89 Applying the principles stated above to the Commissioner's conclusion in this appeal concerning her determination of the peak workforce issue discussed above, can it be said that the Commissioner breached her duty to give adequate reasons? In my opinion, it cannot.

90 The gravamen of Connelly's complaint under this ground of appeal is that having acknowledged the evidence that the demand for carparking generated by the council's use of the building and site was a demand that was not met and that there was a shortfall in the parking provided (at [51]-[52]), the Commissioner declined to accept Connelly's submission that she was required to give a credit for the peak workforce that may have occupied the site at a previous point in time.

91 At the risk of repeating the reasons given above in respect of the second ground, the Commissioner gave reasons for concluding that she did not "need to go back to the council use of the site" (at [56]), namely, because she disagreed "as a matter of law" with Connelly's analysis of the decision in Meriton (at [56]) and because she concluded that she did not need to go beyond the present use of the site pursuant to the 1996 consent (at [56]). This explains her conclusion that credit for the demand generated by the existing 90 bed hostel and the four shops should be allowed (at [57]).

92 Connelly further submitted that the Commissioner did not properly articulate how travelling back to the council's use of the site "would be unreasonable" (at [57]) and that in any event 'reasonableness' was not the correct test.

93 First, having regard to the words of s 94B(3) there was nothing erroneous about the Commissioner's use of the concept of reasonableness (see her judgment at [39]). Second, read fairly and in context, it is clear that the Commissioner thought that in circumstances where the evidence disclosed that there was an actual resident or workforce population of the site as at the date of the development application, it was not necessary, or reasonable, to determine the workforce that may have existed at an earlier point in time, in this instance the council's use of the building, in order to determine the net demand for amenities and services. Having reached this conclusion, the Commissioner did not need to reconcile, as Connelly suggests, what was a reasonable contribution in light of the debate about the inadequacy of the car parking provided in conjunction with the use of the land.

94 The reasons of the Commissioner were, in my view, more than adequate and the third ground of appeal must fail.

Ground Four: Failure to Give Reasons With Respect to Contribution for Civic and Urban Improvements

95 Before the Commissioner Connelly submitted that the demand for items listed as civic and urban improvements, particularly the demand in respect of car parking, had been overstated.

96 The specific challenge to this contribution was that, first, there was no demand and nexus generated by the development for these improvements; and second, that CP 2005 did not specify the civic and urban improvements for which the contribution was sought.

97 The Commissioner dealt with Connelly's arguments as follows (at [72]-[74]):

[72] The applicant's planner Mr Smith gave oral evidence (p 90 line 5 Transcript 24/6/2011) that there may be some demand for items listed for the civic and urban improvements for Byron Bay/Suffolk Park /Ewingsdale identified in s 4.12.2 of CP 2005 (folio 857 of Exhibit 2).

[73] Mr Mckenzie was more confident about demand he believed that development would generate a demand for public street signs, rubbish bins; bike racks, public toilets and footpaths (line 15 Transcript 24/6/2011). He assessed that a contribution in the amount of $49,166.00 was reasonable for this item having regard to CP2005.

[74] I accept that there is a nexus between the development and a demand for this item and based on the evidence of Mr McKenzie believe the amount of the contribution is appropriate and that this item is reasonable under s 94B (3). Therefore, I accept a contribution of $46,166.00 for this item.

98 In this ground of appeal, Connelly submits that the "critical flaw" of the Commissioner's reasons at [72]-[74] was that she failed to deal with the arguments that were put by it as to why this contribution could not be sustained by the council. The Commissioner's reasoning, it claimed, traversed beyond mere economy of expression and trespassed into the forbidden territory of inadequacy of treatment of the issues joined between the parties, with no reasoned exposition of her rejection of Connelly's arguments. I agree with this description.

99 True it is that Connelly's expert town planner, Mr George Smith, under cross-examination gave oral evidence that there "may be some demand" for civil and urban facilities generated by the proposed development (T 24/6/11 90.05), but with respect to the Commissioner, this concession was heavily qualified and when read in context does not warrant, as the council submitted, an acceptance of the requisite nexus within the meaning of the test articulated in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (about which there was no debate between the parties).

100 Given the contest between Mr Smith and the town planner for Connelly, Mr Garth McKenzie, and having regard to the legal principles discussed above, I accept Connelly's submission that the Commissioner neither adequately identified the evidence to support the finding (at [74]) that there was a nexus between the development and the demand for these items nor did she sufficiently explain why she rejected the remainder of Mr Smith's evidence on this topic (of which a review of the transcript reveals that there was considerably more than that referred to by the Commissioner).

101 While it is correct that Connelly dealt with the issue of civil and urban improvements only briefly in its written submissions before the Commissioner, it nevertheless put the absence of any nexus squarely in issue and in doing so relied on the evidence of Mr Smith, to which explicit reference was made. The issue was similarly canvassed in the cross-examination of the town planning witnesses and in oral submissions. I therefore reject the submission of the council that, in effect, the Commissioner dealt with the topic with brevity concomitant with the succinct manner in which it was presented to her, and therefore, no error was committed by her.

102 Moreover, in my opinion, the Commissioner has not, with respect, adequately provided the basis for her finding that $49,166 should be the contribution payable for this item. To state, without more, that the amount is based on the evidence of Mr McKenzie (at [74]) is, as the authorities above indicate, not sufficient. This is particularly so in circumstances where Connelly submitted to the Commissioner that the facilities comprising the civic and urban improvements were not properly specified as required by cl 27(1)(c) of the Regulation.

103 This ground of appeal must therefore be upheld. Alone, this is sufficient to dispose of the appeal and to remit the matter back to the Commissioner for redetermination (the parties were agreed that this was the proper course if the appeal was upheld on this basis) and it is strictly unnecessary for me to consider the remaining grounds of appeal. But I will nevertheless proceed to do so in case I am wrong and given the detailed arguments the parties made concerning grounds 5, 6 and 7.

Ground 5: Failure to Give Reasons With Respect to Contribution for Cycleways

104 Under the fifth ground of appeal Connelly alleges that "the Commissioner's findings at [76]-[78] are an error of law because they are inadequately reasoned".

105 At issue before the Commissioner was whether or not there was a nexus between the cycleway network proposed under CP 2005 and the proposed development. The Commissioner held that there was the following reasons (at [76]-[78]):

[76] Based on the evidence tourist use bicycles. According to the survey (Annex 2 of -Exhibit 7) 34 of the 71 persons staying in a backpacker hostel used a bicycle as a mode of transport.

[77] The CP2005 does identify works, which might be used by this development. I do not accept, as the applicant contends, that the three items brought forward from the 1993 CP into the CP 2005 which propose inter town links have no nexus to the development. The location of the inter town links explored in the evidence (see Transcript 24/6/20110 at p 84) did not in my opinion support a conclusion that there is no nexus between the proposed development and the bikeway network proposed under the CP2005. The various locations within Bryon, which need to be linked, include tourist destinations (see p 77 Transcript 24/6/2011 at 41).

[78] I accept Mr McKenzie's assessment (p 2 of Exhibit 7) of a contribution in the amount of $46,000.00 to the shire wide cost of providing cycleways as reasonable under s 94B (3).

106 Earlier the Commissioner had held that (at [32]):

[32] The Council submits that the court is entitled to assume that the CP2005 sets out the works that are proposed to be provided by the council: Easeport Pty Ltd V Leichhardt Council (2001) 112 LGERA 376 (although I note the law has changed since Easeport; cl 26 (g) of the Environmental Planning and Assessment Act reg 1994 was replaced by cl 27 Environmental Planning and Assessment reg 2000). It also contends that it is not unlawful to carry works forward from earlier contributions plans to the CP 2005. There is no restriction in the EPA Act or regulations upon a council carrying forward works and collected contributions into a new plan: Fevcourt Pty Ltd &Anor v Wingecarribee Shire Council [2005] NSWCA 107 Beazley JA In support of this submission it relies on Mr McKenzie, council's planner's oral evidence at p 83, line 21 of the transcript dated 24 June 2011 " ...the proportion that council has charged for these facilities is listed in the table. Now they decided, in moving from one plan to the next plan and I'll admit this is a clumsy way of doing it, but they're accepting an uplift in the proportion that they're collecting those contributions for."

107 This ground of appeal had two limbs. First, Connelly asserted that there was inadequate reference to the evidence upon which the findings were based. In particular, there was a failure by the Commissioner to properly articulate the basis of her finding that there was the requisite nexus and a failure to explain her acceptance (at [78]) of Mr McKenzie's assessment of contribution in the amount of $46,000 for the cost of providing the cycleways.

108 In my opinion, the reasons of the Commissioner plainly disclose the basis upon which she determined that there was the relevant nexus, namely, the evidence that tourists use bicycles and that almost half of the people staying in a backpacking hostel who were surveyed used a bicycle as a mode of transport. In making this finding, the Commissioner dealt with, albeit by way of rejection, the argument by Connelly that CP 2005 was deficient because it did not identify the works that might be used in the development. She held that it did (at [77]). She also did not accept the submission that the cost for works, including cycleways, could not be carried forward from one contribution plan to the next. The Commissioner found that the demand that was identified in 1993 as being generated by a projected population growth, which by the 2001 contributions plan had occurred, could be carried forward to CP 2005. She succinctly stated her reasons for this finding, that is, that various locations in Byron included tourist destinations and needed to be linked by cycleways. Further she made reference to the evidence upon which her conclusion was based. It should be recalled that the Commissioner was not obliged to set out every step in her reasoning process.

109 Moreover, to the extent that Connelly submitted to the Court that the Commissioner was in error in finding that a nexus existed, for the purpose of this ground of appeal, the correctness or otherwise of her conclusion about the appropriateness of the carrying forward of the 1993 projected population growth was irrelevant. A detailed analysis of Frevcourt Pty Limited v Wingecarribee Shire Council [2005] NSWCA 107; (2005) 139 LGERA 140 for the purpose of determining if it is distinguishable from the facts of the present appeal is therefore unnecessary. It suffices to note that "section 94 does not require a direct connection between the development and the public amenity upon which the contribution is to be spent, nor does it require geographical proximity" (Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 at 265). What is required is that the contribution must fairly and reasonably relate to the subject development (Toadolla at 265), which in this instance the Commissioner found it did.

110 While the economy with which the Commissioner held that the requisite nexus did exist should not be mistaken for any want of adequacy of reasons in respect of her finding in this regard, the same cannot be said, with great respect, about her finding that Mr McKenzie's assessment of the contribution for cycleways was reasonable.

111 The joint town planners' expert report dated June 2011 (where Mr Smith on behalf of Connelly opined a sum of $12,871 by way of contribution for cycleways), the cross examination of the experts, particularly that of Mr McKenzie, and the submissions put to the Commissioner by the parties, clearly demonstrated that Connelly squarely contested the monetary contribution payable by it in respect of the demand for cycleways generated by the development. For example (T 24/6/11 81.28-81.42):

TOMASETTI: Mr McKenzie in 1993 the council identified a cycleways program which would justify - which would be demanded by then predicted population increase particularly from residential development, didn't it?

WITNESS MCKENZIE: That was - yes.

TOMASETTI: by 2001 but for say some figure of around 500 people, that population increase had occurred?

WITNESS MCKENZIE: Approximately, yes.

TOMASETTI: The demand for those cycleways has then been generated? More or less, hadn't they?

WITNESS MCKENZIE: Approximately yes.

112 While later cross-examination saw Mr McKenzie resile, or at the very least qualify, this evidence, this did not, as the council suggested, negate the extant factual dispute between the parties on this topic. Nor did, in my view, the evidence of Mr McKenzie alluded to by the Commissioner at [32] of her judgment (see T 24/6/2011 85.10-85.15). That Mr McKenzie provided by his answer an explanation for the carrying forward of some of the works from the 1993 contributions plan to CP 2005 cannot be cavilled with, but it is not known if the Commissioner based her finding that Mr McKenzie's assessment of a contribution of $46,066 was reasonable on this or some other evidence, such as the fact that Mr Smith ignored the shire wide element of the cost of providing the cycleways.

113 Although the Commissioner provided adequate reasons for finding the existence of a nexus, given the manner in which the debate concerning the importation of the 1993 predicted population increase was presented to her, those same reasons were not sufficient, in my view, to accept Mr McKenzie's assessment of the contribution without a more fulsome reason for doing so.

114 Second, under this ground of appeal Connelly complained that the Commissioner erred in concluding that the nexus was satisfied by the need for a link (by cycleway) between the various locations in Byron (at [77]). This, Connelly submitted, was not what s 94(1) of the EPAA required. Thus the Commissioner had misconceived the statutory task she was required to perform.

115 This submission must be rejected in its entirety if for no other reason than it has nothing to do with the fifth ground of appeal which is concerned with the failure of the Commissioner to give adequate reasons and not some other error of law, such as the error raised by the sixth ground of appeal discussed below.

116 However, having found that the Commissioner's reasons were, in part, deficient, the fifth ground of appeal must be upheld.

Ground 6: Misapplication of Meriton to the Contribution Payable for Cycleways

117 The sixth ground of appeal contends that the findings that the Commissioner made in respect of the need for, and assessment of, the contribution for cycleways was in error because it was contrary to the decision in Meriton.

118 Had the Commissioner made the appropriate enquiry pursuant to s 94(1) of the EPAA and properly considered whether the development for which consent was sought would or was likely to require the provision of or increase the demand for public amenities and public services in the area, she would not have found that the development has a nexus with inter-town links. This was because it was the previous development, as evidenced by the 1993 anticipated population growth (that was met by 2001) which gave rise to the need for a bicycle route network, and not the proposed development.

119 The Commissioner's finding was said to be contrary to Meriton insofar as that case stands for the proposition that pursuant to s 94(1) of the EPAA, the need for a contribution levied by the consent authority must be generated by the development before it. Connelly specifically relied upon the following passage in Meriton in support of its argument (at [61]):

61 Thus the present provisions of the statute neither expressly nor impliedly relate to the manner in which a council provides public amenities and services to meet the needs of past populations: rather, they are only concerned with ensuring that the present developer not be required to meet the needs that are not generated by the development in respect of which consent is being sought.

120 Accordingly, Connelly submitted, the Commissioner erred by carrying works forward from the 1993 contributions plan to CP 2005, where the population growth that was expected to generate those works had already occurred, and hence the council was effectively imposing on the new population an obligation to pay for works which were not actually carried out. It was therefore incumbent upon CP 2005 to identify how any new population would generate a need for cycleways that had not been previously provided, and this had not been done.

121 In my opinion, as the analysis above demonstrates, Meriton is not, given its confined ratio decidendi, authority for the proposition that works cannot be carried forward into another contributions plan. The statement (at [61]) that a developer should not be required to meet the needs that are not generated by the development in respect of which consent is sought, does not preclude the carrying forward of works from one contributions plan to another, provided that a demonstrable nexus exists between the contribution levied and the need generated by the proposed development. In the present appeal such a nexus was found by the Commissioner in relation to cycleways that satisfied s 94(1) of the EPAA and that was in conformity with the reasoning of Meriton.

122 While Frevcourt is clearly distinguishable on its facts from those governing the present appeal, the observations made by the Beazley JA (with whom Ipp and McColl JJA agreed, at [129] and [130] respectively) are, in my opinion, nevertheless apposite (at [88]-[90], emphasis added):

88 As has already been explained, the regulations permit for the amendment or repeal of a Plan. The appellants contend that if a Plan is amended or repealed, then s 94 contributions collected under a particular plan cannot be "carried across" into any amended or substituted plan. They also contend that a Council must complete all the works specified in a Plan, except in the limited circumstances discussed above, and if a Council does not, it must refund any money left in the fund comprising the s 94 contributions. This raises the question of the extent of the right to amend a Contributions Plan.

89 There is no restriction in the Act or regulations as to the type or extent of amendments that may be made. Nor do the regulations specify whether a plan can be repealed in whole or part, and it is not necessary to determine that question. However, the status of any s 94 contributions in the case of a total repeal raises, perhaps more starkly, the question of a contributor's right to a refund, a matter which is explored more fully below. However, for present purposes, it follows from the ability to repeal a Contributions Plan, either in whole or in part, that a Council is entitled not to proceed with work specified in a Plan.

90 Although there is no restriction as to the type or extent of an amendment, the regulations regulate how the amendment must be made or, if applicable, how the repeal is effected. In the case of an amendment, that must be by a new Contributions Plan. Given the absence of any restriction in the type or extent of amendments that may be made, I am of the opinion that a council can amend a plan so as to alter both the extent and type of public amenity or service that is reasonably required by the development and apply existing s 94 funds to those amenities or services.

123 It follows as a matter of logic that if a council can amend a plan to alter the nature and extent of public amenities and services required and then apply existing s 94 contributions to those amended amenities or services, it can also carry forward s 94 funds collected under a plan for which public services or amenities were proposed into any amended or substituted plan. Similarly, it follows that just as funds can be carried over, so too can works be transported from one contributions plan to another provided the relevant nexus between the works and the proposed development exists. As was stated in Frevcourt, "there is no restriction in the Act or regulations as to the type or extent of amendments that may be made" (at [89]).

124 I accept the submission of the council that it could generally be expected that some works may be carried forward on a review of a contributions plan because a need for them is generated by the estimated population identified under any amended or substituted plan. There is, therefore, nothing unlawful or unreasonable about including public amenities and services that were the subject of the 1993 contributions plan in CP 2005 on the basis that there was a proven demand for those facilities generated by the population identified in CP 2005. As Mr McKenzie stated in his evidence (quoted by the Commissioner at [32]), doing this enables the cost of the facilities to be apportioned against the additional population demanding that facility.

125 In conclusion, I do not find that the Commissioner's findings at [76]-[78] are contrary to the decision in Meriton and this ground of appeal is rejected.

Ground 7: Misapplication of Meriton to the Contribution Payable in Respect of Roads

126 The seventh ground of appeal mirrored the sixth but was directed to the contribution payable in respect of road works and the Commissioner's findings at [83], read in conjunction with [79]-[92].

127 As the Commissioner remarked, both traffic/parking experts agreed that the development would generate additional traffic (at [79]). However, before the Commissioner, Connelly again argued, based on evidence that the council's contributions plans prior to CP 2005 identified a need for roads premised on demand determined by an earlier population increase, that there was no nexus between the subject development and the need to provide the nominated road works. Briefly put, the demand "pre-existed" the development contrary to ss 94 or 94B and the reasoning in Meriton.

128 In addition to works identified in CP 2005 relating to Bangalow Rd, Connelly's principal complaint was directed to work identified in the Plan for the Byron by-pass ("the by-pass"). The work comprised building the by-pass around the town centre of Byron at a cost of $3,611,313. It had been included in CP 2005 notwithstanding that the council lodged a development application for the by-pass in 2001, but subsequently withdrew the application in June 2010. Connelly therefore submitted before the Commissioner that the council had abandoned the by-pass and therefore a contribution could not be imposed on it in respect of this work.

129 In reply the council argued that it had not abandoned the by-pass and that the Court was entitled to assume that CP 2005 set out the works that were proposed by the council. Moreover, relying on Frevcourt, it repeated its submission that it was not unlawful to carry works forward from an earlier contributions plan to CP 2005.

130 Relevantly the Commissioner held as follows (at [83] - [84]):

[83] The nexus between tourist development and the demand for improvements or upgrading of roads is established in 4.9.of CP2005. Again the CP2005 includes works carried forward from 1993 plan or CP 2001 into the CP2005 (AWS) but I accept this can be done.

[84] Despite that I also accept the applicant's submission that road trips generated by backpackers are not significance based on the Surveys at Annex 2 of the Joint report of the planners (exhibit 7). However, the development also contains restaurants and shops.

131 She then went on to assess the competing traffic expert evidence having regard to the anticipated occupancy rate for this type of development (at [85] -[90]) and concluded that (at [91] -[92]):

[91] Accordingly, any contribution required must reflect an occupancy rate for the hostel of 56%, which on the evidence is accepted as the appropriate occupancy rate for tourist accommodation.

[92] After a consideration of the above I have decided to accept the council engineer's calculation of the road contribution of $214,457.64 (folio 348 of Ex 2) subject the amendment to reflect an occupancy rate of 56%.

132 In my opinion, on the evidence before the Commissioner it was open to her to find the requisite nexus. If the Commissioner wrongly held that the by-pass had not been abandoned by the council, as Connelly asserted in its written submissions, this amounted to no more than an error of fact that cannot properly be the subject of challenge in this appeal. It certainly could not be said, as Connelly contended, that there was "no evidence" before the Commissioner permitting her to arrive at this factual conclusion (leaving aside the more fundamental problem that this criticism did not form any part of the amended summons).

133 For the reasons discussed above in relation to the sixth ground of appeal, I do not find that the Commissioner has either misconstrued or misapplied either ss 94 or 94B of the EPAA or the decision in Meriton. Her reasoning was not only unexceptional, it was, in my opinion, entirely correct.

134 I also do not consider, again for the reasons expressed above in respect of ground 6, that the Commissioner has incorrectly applied the decision in Frevcourt and that she erred in finding that CP 2005 was precluded from including works carried forward from the 1993 or 2001 contributions plans.

135 For these reasons, this ground of appeal must be rejected.

Costs

136 As these are proceedings in Class 1 of the Court's jurisdiction, I propose, pursuant to r 3.7 of the Land and Environment Court Rules 2007, that there should be no order for costs. If, however, either party seeks a different costs order, then it must do so within 14 days by way of notice of motion, together with accompanying affidavit evidence in support of the costs application.

Orders

137 The orders of the Court are therefore:

(1) the appeal is upheld;

(2) the judgment and orders of the Commissioner in S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1324 are set aside;

(3) the proceedings are remitted to the Commissioner for determination in accordance with the decision of the Court;

(4) each party is to bear their own costs, unless within 14 days either party applies to the Court, by way of notion of motion together with supporting affidavit evidence, for some alternative cost order;

(5) the exhibits are to be returned; and

(6) the matter is relisted for directions before the Registrar on 4 February 2014.

**********

Decision last updated: 24 January 2014