Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council

Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council - [2003] NSWLEC 206 - NSWLEC 1993 case summary — Zoe

[59]

Summary of conclusions on claims for consents granted before 1 July 1993 53. Given my findings on questions 1, 2, 3 and 4, the Applicants' claims in relation to abandonment for the development consents granted before 1 July 1993 must fail (Frevcourt 282/92, 511/92; Kettle 483/88 (as unamended); Rutar 689/89). The Applicants have failed to demonstrate there was of a breach of s 94 because of abandonment by Council of work specified in the 1987 DCP. The Applicants did not base their case on a failure to spend the s 94 contributions in accordance with the conditions of consent and s 94(3). Furthermore, there has been no challenge to the validity of the development consent conditions pursuant to which payment has been made, and payments made under the consents must be presumed valid as a consequence. Statutory position after 1 July 1993 Question 5 Where monies have been paid to a council by way of s 94 contributions pursuant to a valid condition attached to a consent validly given after 1 July 1993, is the council necessarily in breach of the Act if it applies the monies otherwise than in accordance with the schedule of works contained in the contributions plan in force at the time of: (a) the consent; or (b) the application of the monies? If so, what is the breach of which it is guilty? Applicants' arguments 54. The Applicants' argue that the roadworks to be carried out with the Applicants' s 94 contributions were identified in substantial detail in the relevant Contributions Plans including the 1987 DCP and the 1993 Contributions plan. (I found in Question 1 that the 1987 DCP does not have the same legal effect as a contributions plan). The Applicants also relied on the fact that the 1996 Contributions Plan reduced the works program to that in the 1993 Contributions Plan. (The table at par 20 shows a big reduction ($1,556,375) in roadworks proposed under the 1996 Contributions Plan compared to the 1993 Contributions Plan). The obligation of the Council is to spend s 94 contributions in accordance with a contributions plan as implemented through development consent conditions and to do so in a reasonable time. The obligations of the Council continued to be the same as defined in Levadetes (see par 25). Failure to meet those obligations is a breach of s 94 of the EP&A Act. Although not made explicit in the Applicants' argument, I understand the Applicants' case to be that the contributions plan in force at the time development consent was granted must be applied (option (a) in Question 5).

Parties

Applicant/Plaintiff:

Frevcourt Pty Ltd & Ors

Respondent/Defendant:

Wingecarribee Shire Council

Cases Cited (10)

CITATION : Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council [2003] NSWLEC 206 APPLICANTS Frevcourt Pty Ltd & Ors PARTIES : RESPONDENT Wingecarribee Shire Council FILE NUMBER(S) : 40176 of 2000 CORAM: Pain J Construction and Interpretation :- alleged breach of s 94 of the Environmental Planning and Assessment Act 1979 - Applicants claim Council has "abandoned" roadworks proposed in DCP and Contributions Plans for which s 94 contributions were collected - Applicants as contributors of s 94 contributions claim to be entitled to refund of contributions for "abandoned" roadworks - obligations of Council in holding and spending contributions received under s 94 - whether prior to 1 July 1993 Council was required to hold and spend s 94 contributions in accordance with a works schedule in a DCP - effect of removal of words "in trust" from s 94 - whether introduction of amendments on 1 July 1993 requiring a contributions plan effected holding and application of moneys in relation to consents granted before 1 July 1993 - in relation to consents granted after 1 July 1993 whether Council had to hold and spend s 94 contributions in accordance with the works detailed in a Contributions Plan - discretion of Council in spending s 94 contribution monies - whether Applicant's have proved a breach of s 94 - whether a refund to a contributor of s 94 contributions is consistent with the trust under which s 94 contributions are held - nature of s 94 contributions trust - alleged overpayment of s 94 contributions - whether Applicants are entitled to a refund of overpaid amounts based on alleged breach of s 94 - whether Applicants entitled to damages in the alternative to a refund for overpayment

Jurisdiction : - whether Court has jurisdiction to order a refund to a contributor of monies in the s 94 fund - whether the Court can order a refund where the contributor cannot prove their money remains unspent Environmental Planning and Assessment Act 1979 s 94, s 124 Environmental Planning and Assessment (Contributions Plans) Amendment Act 1991 Environmental Planning and Assessment Regulation 1980 cl 41F, cl 41L LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 cl 34 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 s 20 Local Government Act 1919 s 111, s 333 Local Government Act 1993 Sch 7 cl 6(2)(b) Bathurst City Council v PWC Properties Pty Ltd (1998) 100 LGERA 383; Denham Pty Ltd v Manly Council (1995) 89 LGERA 108; F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Frevcourt Pty Ltd v Wingecarribee Shire Council (1992) 80 LGERA 75; Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27; Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190; Mirvac Homes (NSW) Pty Ltd v Baulkham Hills Shire Council (2000) 110 LGERA 100; CASES CITED: N & S Oliveri Pty Ltd v Fairfield City Council [2002] NSWLEC 35; Nelson v Ballina Shire Council (1993) 80 LGERA 271; Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; Rodmac Investments Pty Ltd v Great Lakes Shire Council (Bignold J, NSWLEC, 2 August 1991, unreported); Scharer v State of New South Wales (2001) 116 LGERA 217; Stockland (Constructors) Pty Ltd v Baulkham Hills Shire Council (Pearlman J, NSWLEC, 10 July 1996, unreported); Toadalla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: 25-27/03/2002, 9 -11/12/2002, 13/02/2003 (written submissions),04/03/2003 (written submissions), 31/03/2003 (written submissions), 03/04/2003, 04/04/2003 (written submissions), 11/04/2003 (written submissions) DATE OF JUDGMENT: 09/16/2003

(1998) 100 LGERA 383

(1995) 89 LGERA 108

(1992) 80 LGERA 75

(2000) 110 LGERA 100

(1993) 80 LGERA 271

(2001) 116 LGERA 217

(1992) 78 LGERA 261

(1987) 10 NSWLR 335

At a glance

Court

Decision date

Before

Source

Judgment (130 paragraphs)

Parties

Cases Cited (10)