This case concerned an appeal pursuant to s56A of the Land and Environment Court Act against the decision of Commissioner Horton to refuse development consent to a development application for the demolition of the two-storey portion of an existing part two-storey, part eight-storey building, remediation, construction of a five-storey building for commercial and retail uses, minor alterations to the retained eight-storey building, subdivision and dedication of a parcel of land (Proposed Development) at 191-195 Botany Road, Waterloo
It was contended by the Applicant that the Commissioner erred in law in his decision in the following two respects:
- By asking the wrong question as to whether the Court had power to give effect to the dedication pursuant to a condition under Division 7 of Part 7 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) (Ground 1); and
- By concluding that absent a voluntary planning agreement, or the land being identified under a contributions plan, the Court had no power to give effect to the Applicant’s offer to dedicate the land (Ground 2).
The grounds of appeal related to the manner in which the Commissioner satisfied himself as to the power of the Court to give effect to a proposed dedication of a 2.4m strip of land along the entire Botany Road frontage of the Subject Land to the Council (Proposed Dedication).
Facts: As part of the development application, the Applicant (L&G) made what was described as a “public benefit offer” which included a monetary sum together an offer to dedicate free of cost the 2.4 strip of land at the front of the site (the Proposed Dedication). The ‘public benefit offer’ was put forward by the Applicant as an offer of “Green Square community infrastructure” in accordance with cl 6.14 of the Sydney Local Environmental Plan 2012 (the LEP), which operated to permit the DA to have a base floor space that included the bonus floor space provided for in cl 6.14 over and above the floor space ratio (FSR) provided in cl 4.4 of the LEP.”
Ground 1: The Court described ground 1 as:
“….whether the Commissioner erred by only considering he had power to approve the Proposed Dedication if it met the requirements either for a VPA or dedication pursuant to s 7.11 of the EP&A Act. The fundamental submission put by L & G is that cl 6.14 of the LEP was the source of power for the acceptance of the volunteered dedication. It was contended that the Commissioner erred in not finding that cl 6.14 provided a relevant source of power to permit a grant of development consent.
Justice Duggan held that the Commissioner did not limit his consideration merely to Division 7 of Part 7 of the Act (the power to enter into a VPA or dedicate land) and, therefore, there was no error disclosed in the manner in which the Commissioner considered L & G’s case. Ground 1 should be dismissed. Her Honour went further, however, and noted that the real complaint appeared to be that the Commissioner did not have to be satisfied that there was power under Division 7 of Part 7 of the EP&A Act because there was as separate and independent power to grant the development consent that proposed the dedication of land under cl 6.14 of the LEP, or that he failed to consider whether such a separate and independent power existed and determine the DA on the basis of that power. Importantly, her Honour concluded as follows on that question:
Where the grant of consent imposes a condition approving the development application, which application proposes the dedication of land, there must be power to impose such a condition whether the dedication was voluntary or not. The only power to impose such a condition is that available under ss 7.11 or 7.4, there being no residual power in s 4.17, contrary to the submission of L & G. As the DA, as formulated, could not be approved due to there being no relevant power engaged under s 7.11 or s 7.4 the Court had no power, as consent authority, to impose a condition reliant upon cl 6.14 of the LEP requiring the Proposed Dedication.
Her Honour further commented on the basis for Clause 6.14 of the LEP which she described as permitting “a developer to make an election in the event it is seeking to exceed the FSR controls in the LEP. That election is either reliant upon a cl 4.6 variation for the whole of the exceedance of the FSR control or in the alternative reliant upon cl 6.14 and the provision of public amenity benefits to the extent provided for in that clause”. Simply because clause 6.14 does not refer to the requirement to enter into a VPA for any dedication of land as proposed does not alter the position that a VPA is required.
Ground 2: The Court described Ground 2 as:
“…even if there were no power to grant consent to the development application without a VPA the Commissioner should have granted such consent. By refusing to grant the consent he was acting contrary to law, or that he could have imposed a condition requiring the Applicant and Council to enter into a VPA.”
Her Honour primarily held that Ground 2 failed for the same reasons as Ground 1: that is, cl 6.14 of the LEP was not the required a source of power to permit the grant of development consent that proposed the dedication of land free of cost.
Her Honour considered whether the Commissioner erred in relation to clause 7.7(2) of the EPA Act, which states: A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement. Her Honour found while a VPA may have permitted the dedication of land and overcome the deficiency it cannot be said that the Commissioner refused the development application on the basis that a VPA was not entered into or not offered. His refusal was on the basis that he was not satisfied of the necessary precondition to the grant of consent.
In relation to clause 7.2 of the EPA Act, Her Honour found that “the requirement for a VPA to be entered into to facilitate the dedication does not derogate from cl 6.14, it operates to supplement it in circumstances where a dedication of land free of cost is proposed”.
Further to this above, Her Honour considered the question of whether the Commissioner could have imposed a condition requiring the VPA in the exercise of his discretion and in accordance with the provisions of s 39(2) of the LEC Act (and s 8.14(2) of the EP&A Act). She rejected this submission and concluded it was “…plain that at least by the close of the case before the Commissioner L & G had abandoned any reliance upon the Public Benefit Offer (or any other formulation) being an offer that would or could be the subject of a VPA. The Commissioner cannot be criticised for or said to be in error in law for failing to undertake a course of action that formed no part of either party’s case.”
Her Honour found that Ground 2 failed and the Applicant had not demonstrated that the Commissioner’s decision disclosed an error of law.
Conclusion: this case provides a timely reminder that where a condition of consent proposes the dedication of land, there must be power to impose such a condition whether the dedication was voluntary or not. The only power to impose such a condition is that available under ss 7.11 or 7.4 of the EP&A Act.
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