Wallis & Moore Pty Ltd v Sutherland Shire Council

56 The applicant relies upon the 2001 resolution, in which Council resolved:

1. that the existing fire trail between Bundanoon Road, Woronora Heights and the present Woronora Valley not be opened to through traffic including buses, ie Options for [sic: 4], 4a and 4b are rejected;
2. that the area of the existing Fire Trail be rezoned to Environmental Protection 7b.

57 The applicant also submits that the delay in the application of the monies is inconsistent with the Council's obligations under s 94(3) to apply the monies "within a reasonable time".

58 Before the 2001 resolution the Council had commissioned various studies in relation to the northern access road. The first study was undertaken in June 1984 by Vallentine, Laurie and Davies Pty Ltd. The report, which recommended a new public road from Prince Edward Park Road to the Grand Parade, was made public and a public meeting was held on 9 May 1985. Following significant public comment which was reviewed by the consultant, additional traffic studies in Engadine were undertaken by consultant traffic engineers Colston & Budd Pty Ltd. Colston & Budd recommended different options depending upon the construction of a new bridge over the Woronora River.

59 At its meeting on 26 October 1987 the Council resolved not to proceed with the options for a northern access road and to investigate other options. In July 1988, the Council considered the alternative option and resolved that it not be further investigated.

60 During 1989 the State Government announced its intention to construct a high level bridge over the Woronora River ("the bridge"). In August 1989 the Council endorsed the preferred route for the northern access road and resolved to advise the Roads and Traffic Authority of its proposals so that the Authority could make provision for future traffic in its design of the bridge.

61 The construction of the bridge was delayed and the project was deferred for several years. Following bushfires in the Menai locality in November and December 1997, the Minister for Roads announced on 5 December 1997 that the bridge would be completed. In June 1998 the RTA and the Council commissioned a traffic study by Masson Wilson Twiney Pty Ltd.

62 Another extensive study entitled "Woronora Heights Access Route - Draft EIS" was prepared for the Council by Egis consulting in July 2000 ( Another extensive study entitled "Woronora Heights Access Route - Draft EIS" was prepared for the Council by Egis consulting in July 2000 ("the Egis EIS"). On the basis of the Egis EIS the Council prepared a report recommending, inter alia, the provision of a bus-only link along the existing fire trail to the north of the subdivision. At this stage the Council made the 2001 resolution.

63 Subsequently on 28 June 2004 the Council relevantly resolved as follows: 1. That Sutherland Shire Council does not support returning monies (ie. Section 94 contributions) to developers). 64 In its meeting on 5 July 2004 the Council considered a confidential report and resolved, inter alia: 1. That it be noted that Council is reconsidering its position with regard to the northern access road. 65 On 6 September 2004 the Council relevantly resolved: 1. That the implementation of the "bus only" link between Bundanoon Road, Woronora Heights and The Crescent, Woronora proceed. 2. That the Department of Infrastructure, Planning and Natural Resources be advised that Council no longer wishes to proceed with Sutherland Shire draft Local Environmental Plan No. 26 relating to the rezoning of the corridor of land zoned Special Uses 5(e) (Proposed Road) in its current form and requests that the draft plan be returned to Council. The Council also resolved that a draft local environmental plan be prepared to change the existing zoning to zone 5(e) Special Uses (Restricted Access Road). Consequences of Council's resolutions

66 As a consequence of the above findings, it is apparent that the Council considered the creation of a northern access road to the subdivision over many years. Having conducted numerous studies concerning the possible alternative proposals, the Council, for a brief period, namely between 2001 and 2004 determined not to proceed with any proposal. However, such decision was reconsidered and reversed by 2004.

67 A bus-only link would provide public access to the north for the subdivision. Assessor Hanson's decision left the precise nature of the access to the Council A bus-only link would provide public access to the north for the subdivision. Assessor Hanson's decision left the precise nature of the access to the Council's complete discretion when he referred to the creation of "such road link to the north as the Council will ultimately determine". The Court is satisfied that the proposal to construct a bus-only link falls within condition 23 of the consent since it constitutes a road. Condition 23 required the monetary contribution for the purpose of "roadworks providing access to the sub-division".

68 As observed by Beazley JA in Frevcourt , the Council retains a discretion concerning the method of the implementation of the trust created by s 94: see at [51]; see also Toadolla. Beazley JA said (at [49]):

To deny the Council any flexibility in relation to the works to be carried out would be an unreasonable and unwarranted fetter upon it, even recognising the statutory purpose it has in respect of those contributions. 69 The discretion of the Council includes the flexibility to postpone, delay, suspend, cancel and reinstate the implementation of the public purpose. A resolution of the Council to abandon the public purpose cannot operate to fetter a future Council's resolution to proceed with that public purpose. Such conclusion must follow from the principle that a statutory authority is not bound by "an expression of intention to act in a particular way": see Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 per Rowlatt J at 503. 70 It follows that the 2001 resolution did not have the effect of abandoning the statutory trust arising from s 94 of the EP&A Act. In view of such finding, the applicant's claim for relief can only be successful if it can be demonstrated that the Council has failed to expend the monies for the public purpose within a reasonable time. In Levadetes, Holland J said at 196:

What is a 'reasonable time' for the purposes of s 94(3) will obviously vary enormously with the circumstances of each case … 71 Both the Council and the applicant have conducted the proceedings on the basis that the measurement of the time period for the purpose of establishing "a reasonable time" commenced from Assessor Hanson's decision delivered in 1982. So considered, prima facie a period of in excess of 20 years has elapsed. However, the records of the Woronora Heights Both the Council and the applicant have conducted the proceedings on the basis that the measurement of the time period for the purpose of establishing "a reasonable time" commenced from Assessor Hanson's decision delivered in 1982. So considered, prima facie a period of in excess of 20 years has elapsed. However, the records of the Woronora Heights - Northern Access Road Trust Fund (Exhibit D) establish that the first contribution was not made until 21 December 1984. Contributions thereafter were made in the ensuing years until October 1996. Accordingly, the Court is not satisfied that it is correct to rely upon a period of 20 years to calculate the period for which the Council has held the monies. 72 However even if a period of 20 years is the correct time period against which the Court must consider the applicant's claim, the Court is satisfied that, in the circumstances of the present case, such period is not unreasonable. The proposed northern access road involved substantial environmental and logistical considerations, as referred to in the Egis EIS. As detailed above, since 1982 the Council has, on advice, considered numerous alternative options and obtained advice. A significant portion of the delay has resulted from circumstances beyond the Council's control, namely the postponed completion of the Woronora Bridge. It was not unreasonable for the Council to defer its consideration pending clarification of the RTA's proposal. Unlike the factual circumstances in Levadetes , which concerned off-street car parking, the proposal to construct the northern access road involved complex issues extending beyond the lands the subject of development for which approval was given by Assessor Hanson and involved other public authorities. The public nature of the proposal required the Council to assess all possible options before implementing any specific proposal. 73 It follows from the above that the Council has not held the monies for an unreasonable period. Accordingly the Court finds that the Council is not in breach of s 94 of the EP&A Act. 74 The applicant made a submission that the Council was estopped from denying that the applicant was entitled to repayment of the monies. However no evidence was led to establish that the basis for such claim and in the absence of any breach of the EP&A Act the Court could not grant any relief. 75 It follows that no ground for relief as claimed by the applicant has been established and the Court will set aside the consent orders. 76 Costs have not been argued. The Court will make the usual order but allow each of the parties twenty-one days to apply for a different order.

1. The applicant's motion filed on 16 November 2004 be dismissed.

2. The consent orders made on 4 November 2003 and the orders of 5 February 2004 and 9 February 2004 be set aside.

4. The applicant pay the respondent's costs of the motion filed on 16 November 2004 and of these proceedings, unless within 21 days an application is made for a different order.

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